Quartermaine v Giblett
[2004] WASCA 34
•10 MARCH 2004
QUARTERMAINE -v- GIBLETT [2004] WASCA 34
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 34 | |
| Case No: | SJA:1127/2003 | 16 FEBRUARY 2004 | |
| Coram: | ROBERTS-SMITH J | 10/03/04 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | HARRY JAMES QUARTERMAINE SHANE GIBLETT |
Catchwords: | Appeal Criminal law Appeal against conviction by Magistrate of assault occasioning bodily harm "Inconsistencies" in evidence of complainant "Inconsistencies" between testimony of complainant and other evidence in prosecution case Defendant not giving evidence Whether Magistrate erred in finding charge proved beyond reasonable doubt |
Legislation: | Nil |
Case References: | Devries v Australian National Railways Commission (1993) 177 CLR 472 Gatica-Evans v Wear [2004] WASCA 25 Mifsud v Campbell (1991) 21 NSWLR 725 Rafferty v Sammiller [2003] WASCA 181 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588 Vujcic v Moffitt, unreported; SCt of WA (Templeman J); Library No 970156; 11 April 1997 Harling v Hall (1997) 94 A Crim R 437 Long v Mayger [2003] WASCA 223 Pledge v Davey [2000] WASCA 20 Scarce v Killalea [2003] WASCA 81 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
SHANE GIBLETT
Respondent
Catchwords:
Appeal - Criminal law - Appeal against conviction by Magistrate of assault occasioning bodily harm - "Inconsistencies" in evidence of complainant - "Inconsistencies" between testimony of complainant and other evidence in prosecution case - Defendant not giving evidence - Whether Magistrate erred in finding charge proved beyond reasonable doubt
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr I MacFarlane
Respondent : Mr S F Rafferty
Solicitors:
Appellant : Ian MacFarlane
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Devries v Australian National Railways Commission (1993) 177 CLR 472
Gatica-Evans v Wear [2004] WASCA 25
Mifsud v Campbell (1991) 21 NSWLR 725
Rafferty v Sammiller [2003] WASCA 181
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588
Vujcic v Moffitt, unreported; SCt of WA (Templeman J); Library No 970156; 11 April 1997
Case(s) also cited:
Harling v Hall (1997) 94 A Crim R 437
Long v Mayger [2003] WASCA 223
Pledge v Davey [2000] WASCA 20
Scarce v Killalea [2003] WASCA 81
(Page 3)
1 ROBERTS-SMITH J: This is an appeal against conviction in the Armadale Court of Petty Sessions on 31 October 2003 before Mr S Malley SM on a charge of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code.
2 The appellant was convicted and sentenced to 12 months imprisonment to be served cumulatively upon a term he was then currently serving. An order was made that he be eligible for parole.
3 On 27 November 2003, Scott J gave leave to appeal on the ground that:
"a. The learned Magistrate erred in fact and law in finding that the Prosecution had proved it (sic) case beyond reasonable doubt that the Applicant was guilty of the offence with which he was charged.
PARTICULARS
(1) The learned Magistrate failed to reconcile the conflicts within the evidence of Ms Cheryl Lena Catherine Josephene (sic).
(ii) The learned Magistrate failed to reconcile the conflicts in the evidence between Ms Cheryl Lena Catherine Josephene (sic) and Mr Russell James Denis Mitchell.
(iii) The learned Magistrate failed to reconcile the conflicts in the evidence between Ms Cheryl Lena Catherine Josephene (sic) and the medical report."
5 His Worship pointed out that everyone else was in attendance and ready to proceed and that under those circumstances, perhaps the better course would be to take the evidence so far as possible and adjourn, if necessary, to take the evidence of the doctor at a later date.
(Page 4)
6 Counsel for the appellant said that although he had no difficulty with that in principle, there was an issue of fact which would arise out of the doctor's evidence and he would need to cross-examine the doctor on that before the appellant gave evidence.
7 After a short adjournment, counsel advised his Worship that he had been instructed to consent to the matter proceeding that day, but only so far as the complainant's evidence was concerned. The doctor would be required on some later date so that he could give his evidence prior to the appellant testifying.
8 The prosecution called the complainant.
9 Ms Josephen testified that she was 53 years of age and a carer of aged people. On Sunday 6 July 2003, she was at home with her four youngest grandchildren. Her daughter Natalie lived at that address at Thornlie, but was at the football with Ms Josephen's oldest grandson. The four youngest children ranged in age from 3 to 7 years.
10 Ms Josephen said the appellant, who was an ex-boyfriend of Natalie's, came around that day. He was waiting for Natalie. He had previously lived there but had moved out, although he kept coming around to see Natalie all the time.
11 She said the appellant was alone, although a friend did come with him at one stage through the day. She only knew the friend as Russell. She could not say how many times the appellant came and left.
12 Ms Josephen said that when the appellant first came there, things were quiet; Natalie was not there and it was getting late and he wanted to know where she was. He began getting irate. She asked him to leave the property because she did not think his behaviour appropriate in front of her grandchildren. She asked him on several occasions to leave and he became, as she described it, "very verbally violent about it".
13 The appellant wanted to know why he had to leave, why he could not wait for Natalie to come home. He was speaking softly at first but got louder and louder. Ms Josephen asked him to leave several times. Then they began "having words" which she said were quite irate words. She said she was speaking in that way to him as well.
14 The appellant continued to quiz her about Natalie's whereabouts and Ms Josephen responded to the effect that Natalie was 27 years of age and did not have to answer to her or to anyone else.
(Page 5)
15 They were in the kitchen. Ms Josephen again told him to leave. She "got a bit irate again". She testified that he screamed in front of her face and she told him to get away from her face, he was invading her space. She said that he then picked up a pop-rivet gun and hit her in the mouth. The rivet gun had been on the kitchen bench. He swung it full force and hit her on the left side of her face and mouth. She said that when she was hit she was stunned and shocked.
16 The appellant told her to get a cloth and wipe her face because she was bleeding and she said he then proceeded to take whatever he thought belonged to him out of the house. He was "screaming" around the house "as if he owned the home" for half an hour to 40 minutes before leaving. She did not argue, although she followed him into the bedroom to check that he was not taking anything that belonged to her daughter. He continued to ask her where Natalie was and told her that she was hiding something.
17 After the appellant left, Ms Josephen's 7-year-old grandson got another cloth for her to wipe her face again and went next door to get the next door neighbour to ring people to come and collect the children and take her to hospital.
18 She told the learned Magistrate that her mouth had still had an apparent lump there, two of her teeth were loosened and the plate that she has in the front of her teeth from a previous accident was loosened also. She said she would need dental work which would be quite expensive.
19 She said she had a friend take her to the Armadale Hospital where she was examined. She said she could not remember who examined her but there were two or three doctors there and two or three nurses. She said she received treatment for shock and was told she could go home on painkillers.
20 According to Ms Josephen the police took a photograph of the rivet gun at Gosnells police station.
21 It was put to the complainant in cross-examination that the appellant had not been at her place that day and that he did not strike her at all, let alone with a pop-rivet gun. She adhered to her evidence-in-chief that he was there and had struck her. She said that she had someone else ring the police from the hospital and they said she could make a statement the following day.
(Page 6)
22 Asked how hard the appellant had swung the rivet gun at her, she said she would not know, but the swing was quite apparent because it hit her and shocked her, it:
"… nearly knocked me out. I went dizzy for a while."
23 She thought he had picked it up in his right hand, although she did not take much notice; all she knew was that it caught her on the mouth. She said a friend and her daughter went to the hospital with her because they did not have a car at that time. The friend drove.
24 She agreed that in the statement made the following day she said:
"When Natalie came home I told her what happened. She took me to the Armadale police station to make a report and then to the hospital to get looked at by a doctor".
25 She then said that she first went to the police station on the way to the Armadale Hospital, but was dizzy and too upset to make the report. She was still bleeding from her mouth. The police recommended that they go to the hospital first.
26 Asked about her capacity to recollect, she said it was not too good the following day, but it was good enough to make a statement. There then occurred the following exchange (AB 27):
"Righteo. So you're saying your memory of the incident is far better now than it was when it actually happened or the day after?---I can remember it. I can remember someone swinging something at me and hitting my mouth, and he was definitely in the house that day because I have my oldest grandson to verify that.
See, there you are, there's another contradiction if I can just point it out. You say that you remember somebody swinging something at you?---Well, Harry Quartermaine.
That's not what you says (sic) a couple of seconds ago. You said somebody swinging something at you. Do you understand how confusing this is getting?---Yeah.
I put it to you once again that my client was not there that day?---He was there that day.
(Page 7)
- I put it to you that the reason why you're saying what you're saying is because you can't remember what happened, and my client was there earlier that day but you can't remember what happened?---I can remember what happened. Okay. I can remember someone - - Harry Quartermaine hitting me. He was definitely - -
See, you just - -?---Excuse me. He was definitely in the house that day.
See, you've just made the slip again?---I can have someone verify that.
Sorry. Sorry. You've just made the slip again. You started to say somebody and you changed it to Harry. Can you understand how confusing this is getting?---Yeah. Well, that somebody was Harry Quartermaine.
MR MacFARLANE: Well, I put it to you that you're not too sure about who it was, and that's the reason why you keep on saying somebody?---No. I know who it was because I asked him to leave the house. He was abusing me in front of my grandchildren and he has done it in the past too."
27 Counsel then referred to the complainant's statement, having her confirm that in that she had said that the appellant became abusive and started yelling at her, that she yelled back at him and he pushed her in the chest with one hand. The statement went on that she pushed him back and the appellant picked up the rivet gun which was on the kitchen bench and hit her in the face with it. Counsel had her confirm that she distinctly remembered it was a pop-rivet gun with which she had been struck.
28 Counsel then produced a small crowbar and asked the complainant why would she tell a doctor that the appellant had struck her with a crowbar. She said she did not tell the doctor that. Counsel put it to her that she did tell the doctor she had been struck by a crowbar, but again she denied it.
29 Asked about photographs, she said that there was a photograph taken of the rivet gun. She said the police did not want the gun. They took a photograph and that was all they wanted. She said they gave the rivet gun back to her and she had no idea where it now was. It could have been left in the car, but they no longer had that car.
(Page 8)
30 Counsel put it to the complainant again that the whole thing was a concoction and she did not remember the incident too well at all. She denied it was a concoction and repeated that the appellant was at the house that day and did hit her with the rivet gun.
31 The police prosecutor did not re-examine.
32 Following the completion of Ms Josephen's evidence, the hearing was adjourned to 31 October 2003.
33 On resumption, counsel for the appellant informed the learned Magistrate that he had been advised the prosecution intended to call a further witness, Mr Russell Mitchell and he was objecting to that. He put that on the basis that having only recently been provided with a statement of the witness, he had not had an opportunity to cross-examine Ms Josephen about what the witness Mitchell might say. There was some further discussion about that, but as it is not germane to this appeal, I do not deal with it further.
34 As it transpired, Mr Mitchell's evidence was particularly brief.
35 He told the learned Magistrate that there was nothing he could say in relation to the matter and he did not know the appellant. He said he did know Natalie Downie and that he had been to her address probably half a dozen times, but not with any other people. He said he knew Ms Josephen.
36 He was then asked:
"Have you ever been to the residence of Ms Downie when she hasn't been home and her mother's been at home?"
- to which he answered "No" (the question was a reference to Natalie Downie).
37 The prosecutor then said that he would not persist any further as he did not think there was much point.
38 Counsel for the appellant did not cross-examine Mr Mitchell.
39 The prosecutor then advised the learned Magistrate that there was a further difficulty about the attendance of the doctor who had been summonsed to attend that day. Counsel for the appellant then said that under all the circumstances, if the prosecution were willing to tender the report, he would be happy with that. The prosecutor said that he was of
(Page 9)
- the belief that counsel particularly had an issue with the doctor and he (the prosecutor) would be more than happy to proceed in the way suggested.
40 Counsel said:
"… I would point out, sir, that I do it just simply as a matter of convenience to the doctor, if what's in his report is sufficient for what I want."
41 The prosecutor thereupon tendered a copy of the doctor's report and closed the prosecution case.
42 The appellant's counsel said the defence would offer no evidence.
43 His Worship heard addresses from the prosecution and counsel for the appellant and after a short adjournment gave his reasons for decision.
44 His Worship referred to the applicable legal principles and to the medical report before turning to the evidence of Ms Josephen (AB 46-48):
"She said when Mr Quartermaine first arrived there was (sic) no particular problems. But, as time went by and Natalie hadn't returned, she said the defendant became more and more irate. Due to his behaviour, particularly in front of the grandchildren, she asked him to leave. She said harsh words were exchanged. She said they were in the kitchen arguing. He screamed at her in front of her face, and she told him to get away from her face because he was invading her space.
She said the defendant picked up a pop rivet gun from the kitchen bench and struck her to the side of the face, in the mouth region, with a full-force blow. There was (sic) no further blows. The defendant subsequently left the premises some 30 to 40 minutes later.
She said as a result of that blow that two teeth were loosened by the blow, and her plate was loosened, and that she subsequently, that evening, went to the hospital. A report relevant to that has been tendered. There's no evidence in relation to the teeth in any way damaged by the blow (sic). Under cross-examination it was suggested to the her that her recollection of events … (indistinct) … was poor. The defendant was not present on the day and did not inflict the blow.
(Page 10)
- The complainant denied that suggestion and said, on page 15 of the transcript, she does - - she does say:
'I can remember someone swinging something at me and hitting my mouth.'
Questioned regarding the use of the word, 'someone', the complainant relayed that it was, in fact, the defendant. When questioned why it was she told the court that it was crowbar (sic) that struck her. The complainant denied that she had told the doctor that was the weapon. The doctor has not given evidence so it's not possible to tell one way or another what was said to the doctor on that occasion.
He suggested to me that the complainant's evidence is not reliable, and counsel points to a degree of confusion as to how she got to the hospital, when she contacted police, who contacted the police, as well as the nature of the implement and the extent of the injury, and the identification of the offender.
Whilst I am certainly mindful that some of the confusion, I've carefully weighed the complainant's evidence. In my view, the issues of confusion are just that, in the sense that they were peripheral matters. The evidence given in a general manner, is a fact that remains consistent with the course of events. The bottom line is the complainant received injuries to that side of the face. There was no other explanation of any kind as to how she received it, other than as suggested.
The complainant says that it was a rivet punch. The medical report says she referred to it as a crowbar. The doctor may well have been mistaken. I don't know. I never will. The complainant may well have been mistaken as to the object, but that does not mean she was not struck with a metal object.
I find, beyond reasonable doubt, she was indeed struck as alleged. The complainant has said, from the start to finish, that it was the defendant who struck her. It may well have been some of her responses were confusing in cross-examination, but she was adamant it was the defendant. She was in close proximity. In the course of events, in my view, it was plausible and credible. At the end of the day, I find the complainant's version to be credible. I find, on her version, the charge of assault, bodily harm, has been made out."
(Page 11)
45 Against that background I turn now to the ground of appeal and the appellant's submissions.
Failure to reconcile the conflicts within the complainant's evidence
46 Mr MacFarlane submitted that Ms Josephen gave numerous inconsistent accounts of events following the assault as a result of which there had to be a reasonable doubt about her evidence overall. He instanced in particular what he said were inconsistent accounts of her being taken directly to Armadale Hospital by her daughter, or by a friend of Ms Josephen, or a friend of her daughter's, where she, or someone else, called the police. He said that she had elsewhere and inconsistently said that she was taken first to the Armadale Police Station and from there went to the Armadale Hospital.
47 Counsel referred Ms Josephen's evidence that she could "remember someone swinging something at [her] and hitting [her] mouth" and that when questioned about the use of the word "someone" she stated that it was the appellant. He submitted that the use of the words "someone" and "something" is an indication of Ms Josephen's confusion and must create a reasonable doubt as to the identity of her assailant.
48 These submissions had been made by counsel to the learned Magistrate and he expressly referred to them in the course of his findings.
49 I take the law to be as explained by Jenkins J in Gatica-Evans v Wear [2004] WASCA 25 at [22] and [23]:
"22 A conviction may be set aside as unsafe and unsatisfactory notwithstanding that there was evidence upon which a defendant could have been convicted. The test to be applied is to ask whether the Magistrate, acting reasonably, must have entertained a sufficient doubt to have entitled the defendant to a dismissal of the complaint? In order to answer this question the appellate court must make an independent assessment of the evidence. However, it is not sufficient that the appellate court disagrees with the Magistrate's conclusion. The appellate court must be especially careful not to usurp the role of the Magistrate as the finder of fact in a case, such as this, where questions of credibility are decisive: Morris v The Queen (1987) 163 CLR 454 at 461-462 per Mason CJ.
(Page 12)
- 23 The Magistrate's findings of fact must stand unless it can be shown that he '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.': Rosenberg v Percival (2001) 205 CLR 434 at 447-448 per McHugh J."
50 In the present case his Worship was mindful of the submission made by counsel but concluded that the witness had been confused about peripheral matters and that in the essential parts of her evidence, namely those which went to the facts that she had been struck in the face with a rivet gun and that it was the appellant who struck her, she was firm. It was open to his Worship to find, as he did, that the complainant's account was plausible and credible and that despite some of her responses in cross-examination being confusing, her evidence in its essence was sufficient to able him to be satisfied beyond reasonable doubt that the charge had been proved.
51 His Worship had the opportunity to observe the witness and there was nothing to suggest that he had failed to use, or had palpably misused that advantage. Nor was the complainant's evidence inconsistent with facts incontrovertibly established by other evidence and nor was it "glaringly improbable".
52 In making his finding that on those "peripheral matters" the witness had been confused, his Worship was indeed reconciling those apparent inconsistencies with her evidence on the critical issues.
53 This ground is not made out.
Failure to reconcile conflicts between Ms Josephen and Russell Mitchell
54 His Worship made no reference to the evidence of Mr Mitchell in his reasons for decision.
55 Counsel for the appellant submitted that Mitchell's evidence was that he did not know the appellant and had not been at the house unless Ms Downie was there. He submitted this evidence was in direct conflict with Ms Josephen's evidence which was that he was at the scene at the relevant time. He further submits that given that the credibility of Mitchell's evidence was not challenged by the prosecution or the defence, it ought to have caused the learned Magistrate, acting reasonably, to have
(Page 13)
- entertained a sufficient doubt to have entitled the appellant to a dismissal of the complaint.
56 It was not necessary for the learned Magistrate to expressly refer to all of the evidence.
57 In Mifsud v Campbell (1991) 21 NSWLR 725 at 728, Samuels JA, (with whom Clark JA and Hope JA agreed) referred in the following passage to the extent to which evidence needs to be referred to in the course of giving reasons:
"In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, the High Court (at 667) said that it was right to describe the giving of reasons as 'an incident of the judicial process' although a normal but not a universal one. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA (at 278) makes some comments about that holding, and goes on to say (at 281) that the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but seen to be seen to be done.
Similarly, in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depends, as the duty to give reasons does, upon the circumstances of the individual case.
Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge - as the defendant's denial of having consumed alcohol - may promote a sense of grievance in the adversary and create a litigant who is not only 'disappointed' but 'disturbed' - to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have
(Page 14)
- produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal". (emphasis added)
58 The underlined portion of that paragraph was referred to by Templeman J in Vujcic v Moffitt, unreported; SCt of WA; Library No 970156; 11 April 1997, at 8.
59 His Honour also set out the following passage from Devries v Australian National Railways Commission (1993) 177 CLR 472, 472, 479 from the joint judgment of Brennan, Gaundron and McHugh JJ:
"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case were against - even strongly against - that finding of fact (See Brunskill (1985) 59 ALJR 852; 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167). If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' (S.S. Hontestroom v S.S. Sagaporack [1927] AC 37, at p 47) or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable."
60 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588 is not an authority to the contrary. In that case there was unchallenged evidence and documentary evidence which supported a witness whose evidence the trial Judge had rejected as reliable.
61 All that counsel himself for the appellant said to the learned Magistrate about the witness Mitchell was that (AB 45):
"She says that Russell was there - - sorry. Mr Mitchell, was there. Well, all I can say about Mr Mitchell's evidence was it was a waste of taxpayer's money, sir."
- That seems to me a reasonable assessment of Mitchell's evidence.
62 More to the point in the context of this particular of the appeal, there was no evidentiary conflict between Mitchell and Ms Josephen. Contrary to counsel's submission, there was no direct conflict between Mitchell's testimony and that of Ms Josephen - she had not said he was at the house
(Page 15)
- (that is to say, present in the house) at the relevant time. All Mitchell had said was that he had never been to Ms Downie's residence when she was not at home but her mother was. Ms Josephen's evidence-in-chief was that the appellant was alone when the assault occurred, but a friend by the name of Russell did come with him at one stage through the day. She could not say how many times the appellant came and left, but it was more than once and at one stage "they" went down to get some fuel for the other person's car. Asked later whether "Russell" was still there when the incident occurred, she said he was outside and would not have known what was going on in the house.
63 In my opinion, the submission made by counsel for the respondent that Mitchell's evidence had no probative value with respect to the charge before the court and on that basis there was no requirement for his Worship to refer to it, must be accepted.
64 This ground fails.
Conflict between Ms Josephen and the medical report
65 The medical report from Dr A Balaratnasingham was dated 29 July 2003 and read as follows:
"Cheryl Josephen attended the Department of Emergency Medicine at Armadale Kelmscott Memorial Hospital at 1912 on 6 July 2003.
She alleged that she had been hit in the head with a crowbar. She was alert and orientated with normal vital signs when seen. She was assessed to have suffered the following injuries:
1) Soft Tissue Injury to the Left side of the scalp.
2) Soft Tissue Injuries (swelling, laceration and abrasion) to the lips.
She was treated with oral analgesics.
It is not known whether she has recovered or not.
The injuries were consistent with having been inflicted as alleged; they interfered with her health and comfort but were not likely to endanger life or cause permanent injury to health."
(Page 16)
66 Dr Balaratnasingham's statement was also dated 29 July 2003 and in that he stated shortly that he is a duly qualified medical practitioner in Western Australia; that on 6 July 2003 at about 1912 (hours) Cheryl Josephen attended the Department of Emergency Medicine at Armadale Kelmscott Memorial Hospital and that from the notes made of his examination of her and treatment given, he compiled a report. That report was the one tendered to the learned Magistrate. The notes were not.
67 Counsel for the appellant submitted that the principal and most striking inconsistency between the evidence of Ms Josephen and that of Dr Balaratnasingham is that she maintained the appellant struck her with a rivet gun, whereas the medical report states that she alleged she had been hit in the head with a crowbar.
68 When counsel produced a crowbar to Ms Josephen in the course of cross-examination and asked whether she knew what it was, her response was "No. I'm not very good on tools". When counsel asked whether she would believe him if he told her it was a crowbar, she said that she supposed she would have to take his word for it. She consistently denied that she had told the doctor that she had been struck with a crowbar.
69 As to this, the learned Magistrate expressly referred to it in his reasons and then observed that as the doctor had not given evidence, it was not possible to tell one way or another what was said to him on that occasion. A little later he added that the doctor might well have been mistaken, but he did not know and never will. He said the complainant may well have been mistaken as to the object, but that does not mean she was not struck with a metal object and he was satisfied beyond reasonable doubt that she had indeed been struck as alleged.
70 Mr MacFarlane made the submission that what must not be lost sight of is that the medical report was put into evidence by the prosecution, with the consent of the defence, and as such, "the facts contained therein are not in dispute and accepted on their face value as being true and correct by both parties".
71 The fact that evidence has been tendered by consent in documentary form does not necessarily mean that the tribunal of fact is obliged to accept it. The learned Magistrate was confronted with a situation in which on the one hand the complainant had given sworn evidence clearly and categorically asserting that she had been struck with a rivet gun and denying that she had ever told the doctor it was a crowbar. As against that, there was a brief report from the doctor, unsworn and untested, made
(Page 17)
- some three weeks after the event and based on notes which were not in evidence. It was apparent from the evidence that the complainant had attended the hospital in the company of her daughter and a friend of her daughter. Ms Josephen said there were several nurses and doctors there. It is impossible to say from the doctor's report whether he is referring to something Ms Josephen (or someone else) had said. In the circumstances it was open for his Worship to accept the evidence of Ms Josephen on the point and it was not unreasonable for him to do so.
72 Counsel for the appellant submitted that the choice between accepting the evidence of Ms Josephen against the evidence of Mr Mitchell and Dr Balaratnasingham was not a choice which could be made simply on the basis of credibility. The real question, it was submitted, was whether the conclusions which his Worship drew were sufficiently reliable to constitute proof beyond reasonable doubt and that no issue having been taken with the evidence of Mitchell or the medical report by either prosecution or defence, and no issue of credibility of that evidence being raised by his Worship one way or the other, it stood unchallenged and in conflict with the evidence of Ms Josephen. Counsel specifically relied upon Rafferty v Sammiller [2003] WASCA 181, a judgment of Heenan J, and in particular the passage at [24]:
"I acknowledge that on an appeal any court asked to review a finding of fact made by the court at first instance must make all due allowances for the advantage which the trial court enjoyed having seen and heard the witnesses give their evidence. However, the appeal court is obliged to conduct a real review of the trial by way of rehearing - Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989 where the authorities on appellate review of findings of fact have very recently been collected and reviewed. In this case I consider, with respect, that there is other evidence, not controverted at the trial, which points strongly to the accident occurring much earlier than 0600. The choice between accepting the evidence of Mr O'Neil against this other evidence was not a choice which could be made simply on the basis of credibility. There is no doubt that Mr O'Neil was a truthful witness, the real question, however, was whether the conclusions which he drew by inference were sufficiently reliable to constitute proof beyond reasonable doubt."
73 With respect, I accept that statement of the law but the cases are distinguishable. In Rafferty, evidence of the identification of the appellant as the driver of a car at the relevant time was entirely
(Page 18)
- circumstantial. His Honour found that that was not the only inference reasonably open on the evidence and accordingly the prosecution in that case could not establish that essential fact beyond reasonable doubt. It was not a question of there being evidence which was in conflict with direct evidence of a prosecution witness.
74 This ground too must fail and accordingly the appeal must be dismissed.
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