Reissig v White
[2006] TASSC 98
•17 November 2006
[2006] TASSC 98
CITATION: Reissig v White [2006] TASSC 98
PARTIES: REISSIG, Christopher Peter
v
WHITE, Sergeant Graham Ross
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 18/2006
DELIVERED ON: 17 November 2006
DELIVERED AT: Hobart
HEARING DATE: 13 October 2006
JUDGMENT OF: Evans J
CATCHWORDS:
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Erroneous finding.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: G A Richardson and A J Hall
Respondent: J Ransom
Solicitors:
Applicant: C N Dockray Solicitors
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 98
Number of paragraphs: 13
Serial No 98/2006
File No LCA 18/2006
CHRISTOPHER PETER REISSIG v SERGEANT GRAHAM ROSS WHITE
REASONS FOR JUDGMENT EVANS J
17 November 2006
The applicant has filed a notice to review his conviction on a charge of common assault, the particulars of the charge being that on 2 April 2005 at Launceston in Tasmania he unlawfully assaulted Christopher Lees by hitting him in the face and kicking him in the head.
The applicant and Christopher Lees, the complainant, were neighbours. On the night in question, they and others had been partying and drinking at the complainant's residence. The assault is alleged to have occurred on the nature strip outside the complainant's residence as he accompanied the applicant from his home. At the time both the applicant and the complainant were intoxicated. The complainant gave evidence to the effect that after they left his residence, the applicant became annoyed with the complainant when he sought to dissuade the applicant from driving the applicant's vehicle. This led to the applicant applying a headlock to the complainant, hitting him twice in the face and kicking him in the face and elsewhere after they fell to the ground. The complainant denied that there had been any animosity between he and the applicant during the course of the night arising from his loss of a game of pool to the applicant and derisory comments made by the applicant referable to the complainant's military background.
As to the alleged assault, the applicant gave evidence that as he was on his way home after leaving the complainant's residence, he paused to lock his vehicle. He was then pushed twice by the complainant; they scuffled and fell to the ground. He denied punching or kicking the complainant. He said that prior to leaving the complainant's residence there had been some verbal conflict between he and the complainant about the Army and arising from the applicant having beaten the complainant at pool. The thrust of the applicant's evidence was that he did not assault the complainant and that insofar as there was physical contact between them, this was precipitated by the complainant who, motivated by animosity arising from the Army comments and his loss at pool, pushed the applicant and grappled with him causing them to fall to the ground.
Robert Warren was one of the guests at the complainant's home that night. He gave evidence for the prosecution. He said that he followed the applicant and the complainant as they left the complainant's home and after turning away from them to walk to his own residence, he heard a scuffle, turned and saw the applicant and the complainant on the ground and the applicant throw a couple of punches at the complainant. He said he remained outside the front of the complainant's home until police arrived and then he left.
Dion Silver was also at the complainant's home that night. He was called as a witness for the defence. He gave evidence that confirmed a number of minor aspects of the applicant's evidence, in particular the applicant's evidence that the complainant had shown animosity towards the applicant after losing at pool. Dion Silver said this had caused the complainant to get a bit heated and fiery. He also gave evidence to the effect that Robert Warren did not follow the applicant and the complainant from the complainant's home when they left, but stayed with him at the complainant's bar. He said that after hearing a bit of a scuffle, he and Mr Warren ran out to the front of the complainant's home. On Mr Silver's evidence, when they arrived in front of the complainant's home the scuffle had broken up and there was nothing to see. The significance of Mr Silver's evidence is that it supports the applicant's evidence as to the complainant's animosity towards the applicant and, more significantly, it potentially casts doubt on Robert Warren's evidence that he was at the front of the home when the scuffle occurred and witnessed the applicant throw punches at the complainant. Other evidence given by Dion Silver, which was the subject of adverse comment by the learned magistrate, related to a person named David Hastings. Mr Hastings was not called as a witness. The evidence established that before the applicant and Dion Silver arrived at the complainant's home on the night in question, they had called at the home of David Hastings, but he was not there. Dion Silver gave evidence that when he and the applicant arrived at the complainant's home, David Hastings was present. He also gave evidence that when the applicant left to go home, accompanied by the complainant, he, Dion Silver, remained at the bar with "two other gentlemen". On the evidence, they could only have been Robert Warren and David Hastings.
In the course of his reasons for convicting the applicant, the learned magistrate said that Dion Silver was not a credible witness. Relevant portions of the learned magistrate's reasons for so concluding are:
"Dion Silver said that Lees [the complainant] was getting heated with Chris Reissig [the applicant] … . Silver said that he [the applicant] left with Lees while he [Silver] and Rob [Warren] and as I understood him, Helen [Bumford, the complainant's partner,] remained in the bar. Well perhaps Dave Hastings as well, although he said only another two were left in the bar with him. I mention Dave Hastings because this witness had said that Dave Hastings was there as well in the bar, that is the first time I had heard of that, anyone made that claim. He was the person and I interpose this, that is, Dave Hastings, was the person whose house he and the defendant had gone to first understanding they were to go on to Chris Lees if Dave Hastings wasn't at his home which he wasn't and which they did but nobody else had said that, nobody else has said that David Hastings was at Mr Lees' when Mr Reissig arrived with Dion Silver.
Silver also said … [h]e heard a scuffle after Reissig and Lees left and ran outside with Rob Warren. He doesn't say what happened to David Hastings or Helen, he saw Emma [Reissig, the applicant's wife,] calling him, Chris Reissig was with her then but he couldn't see Chris Lees anywhere. …
Dion Silver was not a credible witness. He swore to there being … David Hastings who no-one else had as being at the party, of him running out leaving the other two – well, what other two. Helen and Rob, what about David Hastings I'd enquire, which would, if he were there, make it three."
Clearly a significant factor in the learned magistrate's rejection of Dion Silver as a credible witness was his evidence that David Hastings was at the party. The learned magistrate, in substance, said that the first time that he had heard of the claim that David Hastings was at the party was when Mr Silver gave evidence to that effect and that no other witness had said that Mr Hastings was at the party. These comments are not correct.
In his evidence-in-chief, the complainant said of the people who were at the party that night: "David Hastings rocked up later that evening"; and "David Hastings came later on that evening". As to those present when the applicant left the complainant's home that night, the complainant said:
"Basically there's myself and Helen, originally there was Dion who was in the bar, I think Dave was still in the bar, I was walking Chris out through the sliding doors of the actual shed, going through the house, basically I got to the front door, Chris' car was parked on the nature strip."
David Hastings was the only person named "David" said to be present at the complainant's home that night. When the complainant was challenged about evidence he gave that the applicant and Dion Silver had jumped the fence to enter his home, the complainant responded: "Even David Hastings says that he's jumped the fence".
Helen Bumford gave evidence that the bar at her and the complainant's residence was in a shed in the back yard. When asked who was in the bar that night, she replied: "Chris Lees, David Hastings and Robert Warren" and she agreed that "David Hastings and everybody set to playing pool".
Robert Warren gave evidence that one of those present at the party that night was named "Dave" or "David", but that he was not sure of his surname. As I have said, the only person present at the party named "David" was David Hastings.
The applicant gave evidence that when he and Dion Silver arrived at the bar that night, the persons present were: "Mr Lees, Helen Bumford, David Hastings and a gentleman now I recall as Rob Warren".
Emma Reissig, the applicant's wife, was asked who was present when she visited the complainant's residence that night and replied: "Well Helen took me in and there was my husband, Chris, Rob, um Chris Lees and David Hastings … and Dion, sorry, yeah".
All of the above evidence referable to David Hastings was before the learned magistrate before Dion Silver gave evidence. Plainly, in these circumstances, the learned magistrate was mistaken when he said that Dion Silver was the first witness to say that David Hastings was in the bar and that no other witness had said that David Hastings was at the party. So, rather than Dion Silver's evidence as to the presence of David Hastings at the party being undermined by the other witnesses, it was confirmed by their testimony. If anything, their evidence as to David Hastings' presence enhanced Dion Silver's credit and most certainly their evidence did not impair it. The learned magistrate's error in relation to this evidence was a factor in his rejection of the credit of Dion Silver and this, in turn, was a factor in his decision to convict the applicant. Accordingly this appeal must succeed. The applicant's conviction and any consequential orders made by the learned magistrate are quashed. I order that the complaint against the applicant be retried before another magistrate.
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