R v Raphael No. Sccrm-97-234 Judgment No. S6442

[1997] SASC 6442

R  v  RAPHAEL

Court of Criminal Appeal
Coram: Matheson, Duggan and Nyland JJ

Nyland J

This is an appeal against conviction.  The appellant was found guilty by verdict of the jury of the offence of assault occasioning actual bodily harm.  The appellant has appealed against that verdict on the sole ground that the verdict is unsafe and unsatisfactory.

It is well established that the verdict of a jury may be set aside by an appellate court where the verdict is unsafe or unsatisfactory.  In considering the evidence to determine whether a verdict is unsafe, however, it is necessary to have regard to the advantage enjoyed by the jury who had the opportunity to observe the demeanour of the witnesses and to assess their credibility first hand.  The proper approach is discussed by the High Court in R v M[1].  In that case, Mason CJ, Deane, Dawson and Toohey JJ said:

[1] (1994) 181 CLR 487 at 493

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Whitehorn v The Queen[2], Chamberlain v The Queen [No 2][3], Knight v The Queen[4]).  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations (Chamberlain v The Queen [No 2] (supra at p621)”.

[2] (1983) 152 CLR 686

[3] (1984) 153 CLR 532

[4] (1992) 175 CLR 495 at pp 504-505, 511

And later, at p494:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based on that evidence (Chamberlain supra).” 

In this case, the appellant has submitted that the verdict is unsafe, firstly on the ground that the evidence of the victim, Craig Albert Field (Field), was manifestly unreliable, and secondly on the ground that the version of events given by the appellant was supported by a number of witnesses (of whom at least two were independent), all of whom were in conflict with the prosecution witnesses.

The incident which was the subject of this charge occurred at premises known as the Black Rose nightclub in Hindley Street, Adelaide.  Field arrived with his friend Lademan in the early hours of 17 August 1996.  They had both been drinking for some hours prior to their arrival.  Upon their arrival Field paid their entry fee but an argument broke out as to the amount of change he should have received.  The appellant was the manager of the club.  He attended at the scene of the argument.  Field said in evidence in chief that the appellant grabbed him with his hands and pushed him backwards.  Field said that he then struck the appellant with a fist to the face, following which he was grabbed from behind.  Field said he fell to the ground and was repeatedly punched and kicked by the appellant.  He said that another man, Pallares, held him down on the ground.  The next he could remember was being in Hindley Street and being subsequently taken to the Royal Adelaide Hospital for medical treatment.

In cross-examination, however, Field admitted that he had given a different version of events to the police.  He told the police that after he struck the appellant, the appellant hit back with a clenched fist causing him to fall backwards.  He agreed that before he fell to the floor he was standing in front of a metal counter where there was some sound equipment stored but was unable to explain how he ended up in the position which he described.  At Appeal Book 62 the evidence was:

“Q: .. If you fell to the ground at that point, that’s where you were hit and kicked, is that right, at that point.

A:   Well, yes.

Q: . If that is the case, how did you get from that position that we have just fixed and you have described, how did you get from there to being right back by the office door almost behind the counter.

A:   Well, I don’t know.

Q: . I will give you an explanation.  It is because Mr Raphael’s version is correct.  You knocked him back in that direction.  The you went after him kicking and punching him.

A:   And that  would be incorrect.

Q:   But it fits in with you getting back there, doesn’t it, in that position.

A:   Unless somebody dragged me or something, yes.

Q:   Are you suggesting somebody dragged you.

A:   No, I’m not.”

Field said that once he was in behind the counter, Pallares restrained him by sitting on his torso.  He said the appellant somehow came past Pallares to a position near his head where he proceeded to “stomp” on his head.  Pallares was originally jointly charged with the appellant with the offence of assault occasioning actual bodily harm.  At the conclusion of the Crown case, however, the trial judge ruled that Pallares had no case to answer and a directed verdict of acquittal was returned.

Lademan was a prosecution witness but his evidence did not accord with that of Field.  His evidence was (AB 79-80):

“Q: .. Once Wayne grabbed Craig, what then happened.  Would you describe this in as much detail as you can.

A:    Craig then struck Wayne.

Q:   Where did he strike him.

A:   In the facial area.

Q:   What sort of a blow was it.

A:   A punch.

Q:   Then what happened.

A:   They wrestled to the floor behind the counter area.

Q:   What was happening between them as they were wrestling.

A:   I assume punches were being thrown, but I can’t say clearly.”

Lademan referred to eight or nine blows administered to Field’s face while he was lying on the ground.  Field said he thought that there were “three, maybe more” blows.  Lademan thought that Field had consumed about seven to eight stubbies in the course of the six hours preceding this incident.  He was unable to explain the discrepancy between his evidence and the evidence of Field’s subsequent blood alcohol reading of .17.

The appellant gave sworn evidence.  He said that Field punched him and he fell to the floor whereupon Field continued to strike him with his feet and his fists.  The appellant said that in an effort to defend himself he covered his head with his hands and kicked out with his feet.  This may have caused him to have some contact with Field although he had no specific recollection as to that matter.  He denied that Field had ever been on the ground.  He said that he did not get off the ground until Field was removed from the premises.

The defence called a number of witnesses to give evidence as to the events at the nightclub.  De Ieso and White were the two women with whom Field had the original argument.  De Ieso was in charge of taking the entrance fee for patrons.  White was the manager of the club and the appellant’s partner.  Golding was a patron at the nightclub.  He was also a friend of the appellant and White.  Deaville was also a patron at the club and was a friend of Pallares.  Retzki was a patron of the club.  She appeared to be unconnected with the club or the appellant apart from being present as a patron on the evening in question and may be considered as the only truly independent witness as to what occurred.

De Ieso, White, Retzki and Deaville were all consistent in describing Field as drunk, aggressive and abusive when he arrived at the nightclub.  Each said that the appellant did not grab hold of Field and that it was Field who threw the first punch which knocked the appellant to the ground.  They appeared to agree it was Field who was kicking and punching the appellant and not vice versa.  Retzki said (AB 215):

“A..... That’s the gentleman. It all happened very quickly.  This very tall chap was upset with the two ladies in reception and this gentleman here said something like ‘you’ve got your money, now go’ and this chap became instantly agitated and hit Mr Raphael.

Q.... Whereabouts did he hit him.

A..... From where I was standing it looked as though to his upper body, it was his head or close proximity to his head.  I saw Mr Raphael fall back.

Q.... Did Mr Raphael touch the man in any way, grab his clothing before that.

A..... No, I don’t think.  I was in a state of shock.  Mr Raphael looked to be in shock as well.  It was just a such a quick thing.  He wasn’t expecting a blow, at least I don’t think so.

Q.... He’d knocked him to the ground.

A..... Absolutely, he staggered back once or twice, bang.  He must have hit the ground.  I didn’t actually see the gentleman hit the ground because of the height of the counter.

Q.... And what happened then.

A..... Well, I can’t say exactly but it looked as though the tall gentleman who had hit Mr Raphael was kicking him.  I didn’t actually see the blows but the area’s a very low one between the counter and the wall and his upper torso was moving as if to suggest he was kicking the gentleman here.

Q.... That is pointing to Mr Raphael.

A..... That’s right, Mr Raphael.”

Golding did not see the beginning of the incident.  He said, however, that he saw the appellant lying on the ground with a man, who must have been Field, above him trying to hit him.  He said that they were struggling and that Pallares went to move the man who hit his head on the counter.  Golding said that when Field left the bar he saw no obvious injuries to his face.

Herlihy was a cleaner at the nightclub.  He described blood stains on the counter which consisted of splashes of blood towards the top of the counter and “probably more of a spray type pattern on the counter itself, and on the architrave of the door.  So just little splatters” (AB 231).

The defence witnesses were consistent in describing Field as the aggressor and the person who was doing the kicking and the punching as opposed to the appellant.  The prosecution, however, placed considerable weight on the evidence of the injuries for which Field was treated at the hospital.  That tended to support Field’s evidence as opposed to the evidence adduced by the defence which was to the effect that Field did not appear to be injured and was indeed laughing when he left the club. Newitt, one of the police officers who saw Field at the hospital, described him as having “two badly swollen eyes, his left and right eye were swollen, the sockets were swollen, he had numerous small grazes to his face, there was a small cut on the side of his face between his ear and his eye, and it appeared as though he had been bleeding from the eyes or the eye sockets” (AB109).

Police officer Madigan described Field as “shaking uncontrollably; his eyes were badly swollen; they were purple in colour and there seem to be bleeding coming from his eyelids” (AB125, 126).

Dr Lim was the medical practitioner who first examined Field at the hospital.  She described a “quite significant periorbital oedema” with a lot of bruising around the eyes.  There was also a laceration of one of the eyes and bruising over the jaw bone.  She was unable to express an opinion as to the exact number of blows to the face which would have been necessary to have caused such injuries but said that “obviously there had been more than one, there had been several blows to the face and head”.  She agreed that the injuries would be consistent with Field hitting his head on a counter, particularly with respect to the lacerations.  She thought that it was unlikely that a simple fall on the counter would have caused such significant injuries but conceded that it was a possibility.

Dr Harries performed a surgical procedure upon Field to correct the damage to his eye sockets.  He described the injuries to the face as being consistent with having received a blow to the face or head but was unable to say whether it was consistent with more than one blow being struck. 

The medical evidence as to Field’s injuries does not sit particularly comfortably with the evidence of the defence witnesses as to Field’s lack of injuries at the time he left the club.  Nevertheless, the onus was upon the prosecution to prove the charge beyond a reasonable doubt.  Field could not be regarded as a reliable witness.  Both Field and Lademan were affected by alcohol at the time of these events.  Field appeared to have a propensity to get involved in street fighting when drunk and was less than candid about previous incidents in which he had been involved.  His memory of this particular incident was poor.  There were inconsistencies between the evidence of Field and Lademan as to the circumstances of this incident.  Lademan’s evidence as to what happened was not supported by any other witness.  There were inconsistencies between the evidence of Field in court as opposed to what he told the police.  There were physical improbabilities in the incident unfolding in the way in which Field described in the small area in front of the nightclub and there is a lack of explanation from him as to how he managed to be located behind the counter.  Even on his version of events his injuries could have been caused by contact with physical objects.

The issues in this case were factual and involved issues of credibility.  Nevertheless, and notwithstanding the advantage which the jury had in seeing and hearing witnesses, I think that an analysis of the whole of the evidence is such as should have raised a reasonable doubt in the minds of the jury as to proof of the charge against the appellant.  It is not necessary for a court of appeal to be satisfied that the verdict reached was wrong to overturn that verdict.  It is necessary only that a reasonable doubt exists that cannot be resolved by reference to the special advantage enjoyed by the jury in hearing the evidence first hand. 

In my opinion the verdict is unsafe.  I would therefore allow the appeal, quash the conviction and substitute a verdict of acquittal in lieu thereof.

Matheson J

No complaint has been made about the trial judge’s summing up, but for the reasons given by Nyland J, I have finally concluded that the jury’s verdict was unsafe.  I agree with the orders she proposes.

Duggan J

I agree that the appeal should be allowed for the reasons given by Nyland J.  I also agree with the orders proposed by Nyland J.