Roberts v Police - [2009] SASC 331

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ROBERTS v POLICE
[2009] SASC 331
Judgment of The Honourable Justice David
29 October 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
Appellant charged on information with one count of assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) and one count of assault contrary to s 23 of the Criminal Law Consolidation Act 1935 (SA) – the Magistrate on being faced with two contrasting versions of the one incident found it proved beyond reasonable doubt that both victims were telling the truth and their evidence was supported to an extent by a witness – appellant appeals on two grounds: (1) self-defence was not negated by the prosecution on both counts; and (2) the elements of both offences were not proved beyond a reasonable doubt due to a reasonable hypothesis consistent with innocence – whether the Magistrate erred in finding that the evidence of the witness supported the evidence of both victims.
Held: the Magistrate had the advantage of observing the witness and was impressed by the objective evidence of the witness – no reason to disturb the Magistrate’s findings – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 20(4), s 23, referred to.

ROBERTS v POLICE
[2009] SASC 331
Magistrates Appeal

DAVID J: The appellant was charged on information with one count of assault causing harm to Zachary Norman contrary to s 20(4) of the Criminal Consolidation Act 1935 (SA) (“the Act”) and one count of assaulting Troy Mullens contrary to s 23 of the Act. The offences were alleged to have taken place in the early hours of the morning of 22 December 2008. After a trial before a Magistrate the appellant was convicted of both offences and now appeals against those convictions.
At trial the case for the prosecution was that in the early hours of the morning of 22 December 2008 in Mount Gambier, outside of a nightclub known as “Shadows”, the appellant punched Zachary Norman causing a laceration to his ear canal and then assaulted Troy Mullens. Neither of the victims were known to the appellant.
The prosecution called both victims and a police officer Andrew Kent to give evidence. The accused gave evidence in his defence.
It was the prosecution case that Mr Norman said that on the morning in question he was hit from behind by an unprovoked blow which caused him to fall forward. He could not say that it was the appellant who had hit him but that fact was conceded at trial. After being hit he was in the process of getting up, and his friend Troy Mullens - having seen what happened and having happened to be walking by - went over to assist Mr Norman. He said Mr Norman had been punched in the back of the head. He said when he went to assist Mr Norman he was punched in the side of the head by the appellant. The police then intervened and apprehended the appellant.
The prosecution also called a police officer Constable Kent who said that he had been called to an earlier incident in the area. Because of that he was paying particular attention to a group of youths and made observations of the appellant. He saw the appellant at one stage running at a fair rate towards a group of people swinging punches. He said he ran through the group, but did not see the whole of the incident involving punches to both Mr Norman and Mr Mullens. He said that the appellant ran towards the group, did not slow down and was swinging his fists at whoever was close to him.
The appellant in evidence said he acted in self-defence. He said that he saw a group of people and heard from that group the screaming of a woman. He became concerned at her plight because the group were acting aggressively and ran towards them. He said that a male then approached him and that male cocked his shoulder in a way that the appellant thought he was about to throw a punch. He said because of that he struck that person first. He said he did that to defend himself. He said the male whom he hit was part of the group being aggressive to the aggrieved woman and that is why he threw the first punch. He then gave evidence that the second male (presumably Mr Mullens) came towards him and he struck him a blow, again in self-defence. He then said the police turned their attention to him and not the others.
The learned Special Magistrate on being faced with two contrasting versions of the one incident found it proved beyond reasonable doubt that both victims were telling the truth and their evidence was supported to an extent by that of Mr Kent. Therefore, the question of self-defence cannot even arise.
Appeal
The appellant now appeals on two grounds. They are:
1 Self-defence was not negated by the prosecution on both counts.
2 The elements of both offences were not proved beyond a reasonable doubt due to a reasonable hypothesis consistent with innocence.
Ms Demertzis for the appellant now argues that the Magistrate erred in finding the evidence of Kent supported the evidence of both Victims. She argues that because Mr Kent did not see any of the blows land that could not afford support. However, the Magistrate found in relation to Constable Kent’s evidence the following:
Constable Kent had been called to the earlier incident that I mentioned before in front of the hotel on Penola Road. He had seemingly had been responsible in part for the disbursement of that earlier melee on the Penola Road. At the time of this alleged assault he was now parked stationary in the car park at the rear of the hotel. He was there specifically to make observations of youths in the car park. He was particularly paying attention to the group of youths. He also made observation of the defendant. He said there was only one group of youths there in the car park of about six persons and it appears Mr Mullins and Norman and their girlfriends were each within that group. Constable Kent says he was only twenty meters away from the group and as I say making deliberate and careful observations. Constable Kent saw was [sic] a tall male person, whom he later arrested and turned to be the defendant. He first noticed him at a point when he was running. His evidence was that he was running at a fair rate and that he ran straight into the group swinging punches. He said that the defendant ran through the group. He immediately got out of the vehicle and approached and arrested the tall male. The tall male was Mr Roberts.
As I say Kent was deliberately making observations of the group. The true [sic] it is that Kent didn’t see whole of the defendant’s approach but he noticed him before he got to the group. What Mr Kent said about the circumstances prior to the alleged assault is entirely different to that of the defendant. I think he said that he first noticed Mr Roberts when he was five meters away from the group. It seems to me five meters away is a lot further away than the point where Mr Roberts describes he was when he struck the first blow. It was apparent on Mr Kent’s evidence the defendant was running straight at the group at that time and so saw the whole approach. He said that as soon as he saw the defendant approaching in the manner in which he did his attention was completely focused upon the defendant. He could see the defendant didn’t stop or slow down as he ran through the group swinging his fists at whoever was close to him. Mr Kent could not tell if the fists connected. He did get out of his vehicle then and immediately approached the defendant. He described the defendant as aggressive, both fists clenched after the alleged assault.
It seems to me this demeanour after the alleged assault, as Kent approached is somewhat inconsistent with someone acting in self-defence. Constable Kent actually was so concerned by the defendant’s level of aggression held the defendant’s fist and spoke to him calmly. Constable Kent was on his own and without assistance. He perceived his own vulnerability and as a consequence he grabbed hold of the defendant in this way.
Kent’s observations are not of two persons approaching each other in the way described by the defendant. Kent’s version doesn’t admit of anyone turning to confront the defendant. Kent gave no evidence of observing persons pushing and shoving and yelling and drunkenness and aggression and the like, as described by the defendant. Kent gave no evidence about hearing a woman calling out in alarm as described by the defendant. If that did occur it seems to me that Kent would have been in a position to hear it and probably acted upon it. Kent’s only evidence of a concern was based upon of the observations that he made before and of a potential for there to be trouble, but concern as I have said based on what had occurred before. Kent was seemingly not to know if this particular group of six people had been involved in the melee that had occurred before.
Kent’s version of the facts is dramatically different to that of the defendant. When he first saw the defendant he was already at a fast run and his arms swinging just wading his way through the group that was there.
It is clear that the Magistrate has addressed the evidence of Constable Kent and made allowances for the fact that he saw no blows landed but he understandably and correctly found that such evidence was not consistent with the appellant’s version which involved self-defence.
The case depended on a finding, bearing in mind the onus of proof, about two conflicting factual versions. The Magistrate had the advantages of observing the witnesses and was impressed by the objective evidence of Constable Kent. Looking at the matter afresh, I can see no reason to disturb the Magistrate’s findings.
I dismiss the appeal.