Quinn v Police - [2009] SASC 324

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
QUINN v POLICE
[2009] SASC 324
Judgment of The Honourable Justice Sulan
16 October 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - PARTICULAR CASES
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - CONVICTION ON PLEA OF GUILTY
Appeal against conviction - appellant found guilty of applying force directly to the victim and thereby causing her harm - whether verdict was against the weight of the evidence and is unsafe and unsatisfactory - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Magistrates Court Act 1991 (SA) s 42; Supreme Court Rules 2006 (SA) r 292(1), referred to.
Taylor v Hayes (1990) SASR 290; Wigg v Architects Board (SA) (1984) 36 SASR 111; C, GM v Police [2007] SASC 310; Coghlan v Cumberland [1898] 1 Ch 704, considered.

QUINN v POLICE
[2009] SASC 324
Magistrates Appeal

SULAN J: This is an appeal against conviction. The defendant pleaded not guilty to aggravated assault of Cindie Marie McFarland, thereby causing her harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA).
The sole ground of appeal pursued by the appellant is that the verdict of the Magistrate was against the weight of evidence and is, therefore, unsafe and unsatisfactory.
Background
The charge arose out of an incident which occurred in the early hours of the morning of 1 January 2008 at the home of the complainant, Cindie Marie McFarland. The complainant is married to the defendant. They had been estranged for approximately seven years. On New Year’s Eve in 2007, there was a party at the complainant’s home. The defendant was staying at the home for the Christmas period in order that he could be with their son, Matthew, who lived there with his mother. Matthew, who was 20 years of age at the time, was present with his girlfriend and other young people who had come to the premises. Substantial amounts of alcohol and illicit drugs were consumed during the course of the evening.
In the early hours of the morning on New Year’s Day, there was an argument between Matthew and the defendant. According to the complainant, who had spent most of the night in her bedroom, she heard the defendant say something about getting a machete. She said that she saw the defendant and her son arguing in the hallway. The defendant was brandishing a large kitchen knife in his hand, which she described as a machete. She was concerned that he might use the knife to injure Matthew. The defendant’s brother, Patrick, was in the vicinity standing next to Matthew, who was facing the defendant. According to the complainant, she grabbed a cricket bat, which was in the kitchen, and approached the defendant from behind her son. She leaned over and tried to hit the defendant on the wrist with the cricket bat to force him to drop the knife. She gave the following evidence:
Q.When you got between Matthew and Patrick with the cricket bat, what did you do then.
A.Danny actually had the machete I think in his left hand then and he changed to his right. I tried to lean over Matthew but to the side and I tried hitting him on the wrist to make him drop the machete and I think I missed and got him on the elbow.
Later, she was asked:
Q.After you’ve struck him with the cricket bat to the right elbow, what have you done. What’s happened then.
A.Well I remember (sic) saying that I was a bitch or something and he rubbed his elbow because I cracked him on the elbow so I thought pretty much bugger you and tried to like use the opportunity to try and like hit him again on the wrist so that he’d drop the machete and I got him in the head apparently.
Q.Did you.
A.Apparently I got him in the head.
HIS HONOUR
Q.What makes you say that.
A.Because I got told later that I got him in the head.
Q.Just tell us what you remember.
A.I remember trying to strike his arm again and then him rushing at me and - .
Q.You remember trying to hit him where.
A.On the wrist again to make him drop the machete.
…
Q.When you struck Mr Quinn the second time, do you remember his reaction or what happened next.
A.Yes, he came straight at me with the machete and hit me and I slid down the wall and there was blood everywhere. I vaguely remember everyone standing around looking and wondering why they weren’t stopping him and I tried to get up the wall and he hit me again and he just kept hitting me.
The complainant was dragged out of the house. She saw that Matthew had also sustained an injury to his throat or neck. She said that, during the altercation, she was hit on the forehead and on the back of her head with the knife. She recalled being hit twice to the back of her head. She was also struck on her wrist. She received lacerations to her right arm.
An ambulance was called, and she was conveyed to the Flinders Medical Centre where she and her son received treatment. They eventually were taken to the Noarlunga Hospital where they were treated for their injuries.
A statement of Dr Ahuja, who was working at the Noarlunga Health Centre that morning, was tendered. Dr Ahuja described the complainant’s injuries. The complainant had lacerations on her right forearm, on the right side of her forehead, and the right parietal area of the scalp with a large bruise between the edges of the scalp laceration. The laceration on her scalp was sutured. The laceration on her forearm was superficial.
The complainant was cross-examined at length. The effect of the cross‑examination was to suggest to her that she was not telling the truth, that the defendant did not hit her with a knife and that she sustained her injuries when she was dragged by a number of young men into the street and thrown around. It was suggested to her that, initially, she did not want to make a complaint to the police, but they prompted her into making a statement and a complaint. She denied that to be the case, and asserted that she had made a complaint and had insisted that the police pursue the complaint and that the defendant be charged.
Constable Sheik was the only other witness called by the prosecution. She attended at the complainant’s home at about 5.45 am on 1 January 2008. At that stage, there was no one at home. As she was leaving the home, she received a further radio message, so she returned to the house. The complainant, Matthew, and his girlfriend had returned to the house. Matthew had an injury to his neck which had been bandaged. He refused to speak to the police. She conveyed the complainant to the Noarlunga Hospital, where she was treated.
The next day, Constable Sheik attended at the house. Present at the house were the defendant, the complainant and Matthew. The defendant did not wish to speak to the police, nor did Matthew. When Constable Sheik spoke to the complainant, the complainant was very agitated and adamant that she wanted the defendant to be arrested and charged with assaulting her. The defendant collected his personal belongings and left the house. It was later that day that the complainant made a statement. No other witnesses were called by the prosecution.
The defence case was that the defendant did not assault the complainant with a knife, that he never had a knife in his possession, and that he did not cause any of the injuries sustained by the complainant.
The only witness called by the defence was the defendant. He gave evidence that he had been invited to the house to stay during the Christmas week and New Year period. He said that on the night of 31 December 2008, his brother came to the house. The complainant and Matthew were there. Throughout the night, a number of Matthew’s friends came and went. He said that, during the day, there were a few arguments amongst the boys and their girlfriends. The defendant said that in the early hours of the morning he was discussing the possibility of his brother, Patrick, employing Matthew who was then unemployed.
During those discussions, the defendant and his brother confronted Matthew about his excessive drinking. The defendant told Matthew he should be employed. He said that Matthew started an argument, which turned into pushing and shoving. He said it was during the course of that argument that he was struck on the head with a cricket bat.
The defendant said that, throughout the day, the complainant had been drinking and smoking marijuana. When the argument started she was, in his words, “revving things up”. He said that it was the complainant who caused Matthew to become agitated. He said that when Matthew became agitated, he held Matthew by the arms and told him to calm down and settle down. The defendant said that Patrick was standing two feet to the side of where he was standing. The next thing that occurred was that he was struck on the head with a cricket bat. He said he began to bleed, and he was struggling to stay conscious.
He made his way to the front of the house and sat down beside a bush. An ambulance arrived and he was taken to hospital. At the Noarlunga Hospital, the doctor stopped the bleeding. He stayed at his brother’s house that night. Later in the morning he spoke to Matthew and to the complainant, who told him she did not want him in the house, and that he should gather his belongings and leave.
He said that he went to the house and the police arrived. He said nothing to them. He said that he saw a bandage around the complainant’s head, but he did not speak to her about it. He said the police told him about her injuries.
In cross-examination, he said that, prior to the incident, there had been a number of arguments, mainly due to people having consumed too much alcohol and drugs. The situation was volatile. When he spoke to his son and to other guests and asked them to leave, they responded by saying that it was the complainant’s house and not his. He said there was little he could do, because he was outnumbered.
He said that he spoke to his brother, Patrick, about Matthew and asked him if he would give Matthew work to get him interested in a trade. His brother, Patrick, told the defendant that he could employ Matthew for a few months in the building industry. The defendant also spoke to his brother about Matthew’s excessive drinking. He also denied having told the complainant the day before that he and his brother were going to straighten Matthew out. He denied having told her that the reason he was bringing his brother, Patrick, was so that they could get together and tell Matthew to get a job and stop drinking. He said that he did not communicate with the complainant about Matthew.
He said that, prior to being hit, he and Matthew had argued. He said that the complainant was involved. She was generally abusive and inflaming the situation. He described the complainant as “ranting and raving most of the night”. He said that she was unintelligible. He said that there was marijuana and ecstasy pills being consumed by the young men.
When he was asked in cross-examination why his son, Matthew, was becoming agitated, he said he was not sure. He said that the argument that he had with his son was about his work ethic. During the argument, his son became angry and loud. He said that when his son started to become agitated, he held him by the arm. He denied ever having had a knife in his possession.
The defendant gave evidence that his brother, Patrick, was about two or three feet away when he was holding his son. That is when he was hit with the cricket bat. He said he did not see who had struck him although, later, he was told by the complainant that it was her. She said to him that she thought he was going to hit Matthew.
He said that the knife, which was tendered in evidence, was familiar to him as one of the knives which was kept in the kitchen. He maintained throughout the cross-examination that he did not intend to strike Matthew, nor did he ever have a knife in his possession. He said that, after he was struck, he lost consciousness momentarily. All he could recall was that there was fighting between some of the young men.
Later, he was told that it was Patrick who had organised the ambulance and had telephoned the police. He said the next day, when the police were at the house, initially the complainant had wanted him charged, and then changed her mind. She said later that she had just wanted him out of the house. He said he told the police that he was not responsible for her injuries and that he could press charges against her, but that he did not want to go ahead.
He agreed that he did not want to tell the police what had happened. He said that was because he did not want the police to take action. He said that he had gone to the Noarlunga Hospital. His head had been bandaged. He refused to allow the hospital to stitch his head wound.
The Magistrate’s decision
The Magistrate considered the evidence of the complainant and the defendant. He concluded:
In relation to the victim I found her to be generally truthful and impressive – impressive in the sense that she was what one would call ‘a battler’. She had obviously led a very hard life. She was not, in my view, very intelligent. One indeed only has to look at the photographs to see what I mean. I pose the question, did she ever appear to me to be deceitful, to be lying, to be fabricating evidence, and the answer I am firmly of the view is no, she was not. There is the theme throughout her evidence that she was there to protect her son. It is perfectly clear and she gives a perfectly clear account how she was struck numerous times by the defendant, who she alleged had the knife.
The defendant, when giving his evidence, in my view gave a very implausible account. He was there, he was hit in the head, at the very least, yet he did not see how these injuries to her occurred. On his account he has not been told by anyone how her injuries occurred, because he has not told us that anyone else saw how they were caused. He was, in the presence of police, asked what had happened and he said that he did not want to tell what had happened and he did not want the police to take any action.
The Magistrate concluded that the knife, even though described as a machete, was a large kitchen knife. He accepted the complainant’s evidence that she was concerned that the defendant might accidentally hurt Matthew when he was waving the knife around during the course of the argument. He concluded that she hit the defendant with the cricket bat, initially on the arm, in order to have him drop the knife. She then struck him on the forehead. After that occurred, the defendant attacked her and struck her a number of times with the knife.
The Magistrate observed that, on the defence case, the complainant’s evidence amounted to a fabrication. He concluded that he was satisfied beyond reasonable doubt that the complainant had suffered the injuries which had been described by Dr Ahuja. The injuries were consistent with a knife having been used to attack her. He found the complainant to be generally truthful. She did not appear to him to be deceitful, lying or fabricating the evidence. He observed that her evidence was consistent in that she wanted to protect her son, and that she gave a perfectly clear account about how she was struck numerous times by the defendant, whom she alleged had the knife.
The Magistrate was unimpressed by the defendant’s evidence. He considered that the defendant’s account of what occurred was implausible. He did not accept the defendant’s evidence that the defendant had no idea how the victim’s injuries occurred. The Magistrate was satisfied beyond reasonable doubt that the defendant struck the complainant with the knife.
The appeal
Section 42 of the Magistrates Court Act 1991 (SA) empowers the Supreme Court to hear and determine appeals in criminal matters from courts of summary jurisdiction. It is settled law that an appeal pursuant to s 42 and r 292(1) of the Supreme Court Rules 2006 (SA) is by way of re-hearing. The appellate court is to consider whether the judgement of the court below ought to be affirmed or overturned in the light of material before it at the time it hears the appeal.[1] In so doing, the court is required to arrive at its own decision, having regard to the evidence. Nevertheless, regard will be had to the findings of a magistrate, in particular when considering the credibility of witnesses.
[1] Wigg v Architects Board(SA) (1984) 36 SASR 111, 113; C, GM v Police [2007] SASC 310.
In Taylor v Hayes,[2] Perry J dealt with the approach to be taken in appeals from magistrates involving disputed questions of fact. He regarded as authoritative the dicta of Lindley MR, Rigby and Collins LJJ in Coghlan v Cumberland:[3]
The case was not tried with a jury, and the appeal from the judge is not governed by the rules applicable to new trials after a trial and verdict by a jury. Even where, as in this case, the appeal turns on a question of fact, the court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the court is sensible of great advantage he has had in seeing the hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen.
[2] (1990) 53 SASR 290.
[3] [1898] 1 Ch 704, as cited in Taylor v Hayes (1990) 53 SASR 282, 290.
In considering whether a decision of a magistrate cannot be supported, what is required is for the appellate court to conclude that the verdict is based on evidence that is plainly deficient, or is so weak or obviously unreliable that a reasonable doubt as to the guilt of the appellant must necessarily exist, taking into account the evidence as a whole.[4] The appellate court must make its own independent assessment of the evidence. If, after consideration of the evidence, the court considers a verdict to be unsafe or unsatisfactory or incapable of being supported, having regard to the evidence, then the conviction must be overturned. Having regard to the principles referred to above, I now turn to the submissions of counsel for the appellant.
[4] The Queen v Hayes (1973) 5 SASR 278, 281 per Bray CJ, Wells and Sangster JJ.
Counsels’ submissions
The first contention of counsel for the defendant is that the Magistrate erred by placing insufficient weight on the evidence of Constable Sheik, insofar as that evidence contradicted the evidence of the complainant on the question of intoxication. Counsel submits that if Constable Sheik’s evidence is reliable, then the complainant’s evidence as to her state of sobriety is untrue or, at the least, unreliable. It is contended that this, together with other parts of her evidence which are allegedly inaccurate, raises doubt about her reliability sufficient to conclude that the conviction is unsafe and unsatisfactory.

The Magistrate referred to the evidence of the complainant, that she did not drink to excess that evening. He observed that when Constable Sheik attended at the house at about 3.00 am and spoke to the complainant, the police officer believed that the complainant was extremely intoxicated, and possibly under the influence of drugs. The Magistrate noted that the complainant was not slurring her words and was not swaying. The Magistrate did not make any finding on the issue of the degree of intoxication of the appellant. However, he was satisfied that she was generally truthful and an impressive witness and that, in respect of the incident, she was not lying or fabricating her evidence. It is clear from the Magistrate’s reasons that he did not consider the state of the complainant’s intoxication as affecting her ability to recall the events of that evening. Nor did he regard the fact that her evidence on the subject conflicted with that of Constable Sheik sufficient to impugn her overall credit when considering her evidence about the actual incident.
Counsel complains about the following passage of the Magistrate’s reasons:
The defendant corroborates that there was an argument between himself and Matthew that evening. The defendant corroborates that the police had asked them what had happened and said that he did not want any action taken. He says that he yelled at Matthew and said “You need to get a fucking job and you need to not drink too much”. The defendant says he grabbed Matthew by the biceps.
Counsel contends that the Magistrate was in error in concluding that the defendant’s evidence corroborates the complainant’s evidence. He contends that, equally, the complainant’s evidence corroborates the defendant’s evidence.
Counsel for the Police contends that the Magistrate’s reasons cannot be read in the way counsel for the defendant now alleges. He submits that the Magistrate was simply summarising the defendant’s evidence and observing that the defendant’s account of what occurred was consistent with much of the complainant’s account.
I agree with the submission. The Magistrate was doing not more than observing that, in respect of much of the evidence, there was no dispute. He was simply summarising the defendant’s evidence and observing that, insofar as the events leading up to the assault, the defendant’s evidence supported much of the complainant’s evidence. There is no substance in the complaint that the observations of the Magistrate are objectionable.
Counsel for the defendant submits that the Magistrate erred in failing to consider or to refer to a hypothesis consistent with the defendant’s innocence, namely, that other persons were responsible for the complainant’s injuries. The Magistrate’s decision turned on his acceptance of the complainant’s evidence that the defendant assaulted her with the knife. Having accepted that evidence, and being satisfied beyond reasonable doubt that the defendant attacked the complainant with a knife, there is no basis for considering whether there was any other hypothesis consistent with the defendant’s innocence.
This was not a circumstantial case. This was a case which depended upon the Magistrate’s assessment of the complainant’s evidence and the defendant’s evidence. There can be no doubt that the complainant was struck with a sharp instrument, such as a knife. The injuries she sustained support her claim that she was the subject of a violent attack. There is no evidence to support an inference or conclusion that she might have sustained the injuries other than in the manner she described.
Once the Magistrate rejected the defendant’s evidence, and then accepted the complainant’s evidence as satisfying him beyond reasonable doubt, there was no basis upon which the Magistrate should have considered whether there was any other reasonable hypothesis consistent with the defendant’s innocence. The suggestion that the injuries suffered by the complainant might have been caused by someone else, in the circumstances of the case, is mere speculation. There is no substance to counsel’s submission. There was no evidence that any other persons at the party were armed with a knife, nor was there any evidence to suggest that any other person was involved in an argument with the complainant.
Counsel for the defendant further complains that the Magistrate should have made a specific finding about the knife, and should have made specific findings that the injuries were caused by the knife which was tendered in evidence. Again, it is clear from the Magistrate’s conclusions, that he accepted the complainant’s evidence that she was struck with the knife which she had described as a machete. It was not necessary for the Magistrate to make specific findings as to how the defendant had come into possession of that knife. In my view, that criticism of the Magistrate’s findings has no basis.
Counsel for the appellant submits that the Magistrate’s determination that the complainant’s evidence was plausible and defendant’s evidence was implausible was an error. It is not necessary to repeat the evidence and the findings of the Magistrate. The conclusion was open on the evidence. The Magistrate had seen and heard the witnesses. He made assessments as to their credibility.
It has not been demonstrated that the Magistrate erred in accepting the complainant’s evidence. There was sufficient evidence from which the Magistrate could be satisfied that the charge had been proved. The appeal is dismissed.