SARRET v Police - [2012] SASC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SARRET v POLICE
[2012] SASC 37
Judgment of The Honourable Justice Vanstone
14 March 2012
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
CRIMINAL LAW - PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES - ADDRESSES - GENERALLY
Appeal against conviction - appellant was convicted of aggravated assault - whether magistrate impermissibly admitted affidavit of witness where witness not competent to give evidence - whether magistrate impermissibly admitted and used evidence of victim's complaint - whether police prosecutor impermissibly cross-examined accused as to why witness might be motivated to lie.
Held: appeal allowed.
Evidence Act 1929 (SA) s 6, s 29, s 34CA, referred to.
Palmer v The Queen (1998) 193 CLR 1; Hargraves v The Queen (2011) 85 ALJR 1254, applied.
R v Byerley (2010) 107 SASR 517, considered.

SARRET v POLICE
[2012] SASC 37
Magistrates Appeal

VANSTONE J: After a trial in the Magistrates Court occupying some three days, the appellant was convicted for aggravated assault committed upon a young man, “V”. The assault was found to have been committed on 27 November 2009 in the course of the appellant’s employment by Disability SA as a disability care worker in a program called Northlink, run in a hall at Queenstown. The appeal against the conviction is on grounds that inadmissible evidence was adduced. There is also an appeal against sentence.
Background
The victim was then a man of 22 years and suffered from a relatively significant mental disability. Medical and psychological material before the magistrate suggested he met the criteria for “intellectually disabled”. That, together with his appearance before the magistrate, led her to conclude that he was “not able to give evidence”.
The prosecution case rested mainly on the evidence of an eye-witness, “Ms F”, who worked with the appellant at the program. Ms F described the assault as occurring when the appellant intervened in a “play fight” between V and another client, one “P”. Ms F said that she saw the appellant run some metres towards the two clients and then kick V to the stomach, saying to him words like: “What you do to other people I will do to [you]”. She saw V fall to his knees, apparently in pain.
The prosecution also called other staff who were present in the hall, including one called Anthony, but there was no direct evidence to support Ms F’s. The mother of V was called. She gave evidence that on the night of this incident V complained of a sore stomach. A few days later, she said V told her that the appellant had kicked him and she saw that he had a mark on his stomach.
Evidence was led of an interview of the appellant by police which took place on 12 July 2010. The account he gave of the incident was broadly similar to the evidence he gave before the magistrate. His version of the events was, in brief, that V and P were on a stage in the hall “getting physical”, or “wrestling”. Although it appeared they were joking, they started getting violent. The appellant asked them to stop and at first they complied. However, when his attention was next drawn to them their voices were raised and his co-worker Anthony was in between the two clients, separating them. Being concerned for Anthony’s safety, the appellant intervened, putting himself between V and Anthony. At that point V ran to jump on to Anthony’s back and the appellant lifted his knee, tucking it into his left side, and put his hands out to try to block V. His aim was to both protect Anthony and P as well as to minimise any injury to V. He said that V then “bounced” off him. He denied kicking V and denied speaking to V as recounted by Ms F.
As can be seen, the appellant’s defence was to deny both the specific allegations against him and to claim that insofar as he made contact with V, he did so in defence of Anthony and the client, P.
The appeal
The notice of appeal contained some nine grounds in support of the appeal against conviction as well as two grounds alleging error in the sentence imposed by the magistrate. However, at the appeal hearing counsel for the appellant, Mr Heath Barklay, indicated that in terms of the conviction appeal only grounds 4, 5, 6, 7 and 8 would be pursued. Those grounds challenge the admission into evidence of a number of documents including an affidavit of V (ground 4), a written complaint made to Disability SA by Ms F (ground 5) and the affidavit of V’s mother dealing with a complaint said to have been made by V to her (ground 6), a topic upon which she also gave evidence. There is also complaint about the magistrate allowing the police prosecutor to cross-examine the appellant as to his knowledge of any motive Ms F might have to falsely implicate him (ground 7) and the use made by the magistrate of that evidence (ground 8).
Some of the documentary material which it is now said should not have been admitted was tendered in evidence by the solicitor then acting as counsel for the appellant. An affidavit filed in this Court by that solicitor goes some way in explaining his motivations for presenting these materials. Without wishing to be too critical it can be said that the course he followed did not advance his client’s case. As regard grounds 7 and 8, it is noteworthy that no objection was made by the solicitor to the prosecutor’s questions.
The actions of the solicitor then acting as counsel made conduct of the trial extremely difficult for the magistrate. Once the statements and oral evidence were before the magistrate she no doubt considered she was entitled to rely on it and her careful and quite extensive reasons demonstrate that in some matters she did rely on material which I consider was inadmissible. As will be seen from what follows I consider that the trial miscarried by reason of the admission of inadmissible material. Unfortunately it will be necessary to quash the conviction and remit the matter for re-trial.
I shall deal with each ground in turn.
Ground 4 – the admissibility of V’s affidavit
An attempt was made to have V give evidence before the magistrate. V was questioned by the magistrate to determine whether the requirements of s 6 of the Evidence Act 1929 (SA) were satisfied. The magistrate concluded that V was not competent to give evidence. However, a little later in the trial the transcript records that defence counsel applied to have V’s affidavit statement tendered by the prosecution. The application was opposed by the police prosecutor but the affidavit of V was admitted. The transcript records that the magistrate admitted it pursuant to s 34CA of the Evidence Act. The magistrate made reference to the decision of R v Byerley (2010) 107 SASR 517.
In my view this procedure was inappropriate. First it was inappropriate because the very fact that V had been found incapable of giving evidence called into question the provenance and reliability of the statement. Put another way, the statement did not have “sufficient probative value” to justify its admission: s 34CA(1)(a). Then, it was inappropriate because contrary to the requirements of s 34CA(1)(b)(i), V was not “available to be called” as a witness. Later in the trial defence counsel seems to have changed his mind and attempted to persuade the court to reject V’s statement, but the magistrate was not inclined to accede to that submission. In her reasons at [70] the magistrate made use of an assertion made by V in his affidavit. It is apparent that she used the assertion as evidence going to the truth of what occurred. Since the evidence was inadmissible at the instance of either side no use should have been made of the statement. This is a significant error in the trial.
Ground 5 – the admissibility of the previous statements of Ms F
The evidence of Ms F was critical to the prosecution case. On the account given by the appellant, Ms F must have either been lying or have been grossly mistaken as to the events. She was cross-examined at some length by defence counsel. At one point a suggested inconsistency, or rather omission, in Ms F’s initial statement to Disability SA was put to her and she admitted having made the statement. It was put to her that whereas in her evidence and in her affidavit to police she described the appellant as running towards V from half-way across the hall, stopping and delivering a sideways kick to V’s stomach, in her initial statement to Disability SA she had made no mention of the appellant stopping before delivering the kick. When the contrast was put to Ms F she (implicitly) accepted the truthfulness of both statements, said that it was accurate to say that the appellant had briefly stopped before kicking and explained the difference by asserting that the initial statement did not address the issue of whether or not the appellant had first stopped.
After her evidence was completed, and indeed on the following day, defence counsel sought to tender not only her initial statement but also her affidavit, both in their entirety. Apparently his purpose was to demonstrate the suggested inconsistency. There does not appear to have been any advertence to the terms of s 29 of the Evidence Act. I set it out for convenience.
29—Cross-examination as to previous statements in writing
A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the cause, without the writing being shown to him; but if it is intended to contradict the witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that the judge, at any time during the trial, may require the production of the writing for his inspection; and may thereupon make such use of it, for the purposes of the trial, as he thinks fit.
Since the witness had admitted the suggested inconsistency there had been no occasion to produce the writing to her, let alone to tender it in evidence. The transcript does not record what was the police prosecutor’s attitude to the tender, but it would not be surprising if he were content to have the earlier consistent statements go before the magistrate. In the event, the magistrate appears to have used that material, both to evaluate the significance of the suggested inconsistency, and to find that Ms F had “given a consistent account of events from December 2009 until the day of evidence”: [52].
The procedure adopted by counsel was not in accordance with the rules of evidence. There was no occasion for the tender of the statements of Ms F. It is complained that once the statements were in evidence the magistrate used them not only to refute the suggestion of any inconsistency of significance, but also as a basis for a positive finding in relation to the consistency of Ms F. By reason of the terms of s 29 including the proviso I consider the magistrate was entitled to use the statements to show that Ms F had been consistent in her statements; not only on that point, but also on other topics. It stands to reason that in circumstances where a statement goes in to support an attack on a witness’s credit, it can be used by both sides on the issue of credibility. But here the extent of the use the magistrate was entitled to make of the statements is rather clouded by the fact that they were not really admissible at all at the instance of defence counsel under s 29.
In those circumstances it is unwise to say more than that I consider the use made of the statements by the magistrate was open to her, once the statements were in. As I said, they were tendered by defence counsel. The appellant is bound by the course of the trial and the ground of appeal must fail.
Ground 6 – the evidence of “complaint”
The foster mother of V, Ms W, gave evidence in answer to the police prosecutor that V complained to her on the day of the assault that he was in pain on his left side and the following day told her that one of the workers, called Gus [the appellant] had kicked him. She was cross-examined by defence counsel to the effect that much of the detail surrounding V’s complaint was not part of her statement to police. Her response was that she had been told that only a short statement would be taken from her. Later in the trial Ms W was recalled, apparently in relation to how V’s statement to police was compiled. However in the course of cross-examination on that occasion Ms W’s statement to police was tendered by defence counsel. The terms of that statement, as it related to the complaint made to her by V, were broadly similar to the evidence she gave.
The evidence of V having complained of being hit or kicked by “Gus” was not admissible. This was not a complaint of a sexual offence. The common law rule enabling the leading of evidence of recent complaint was always specific to sexual offences. The statutory replacement of that rule found in s 34M of the Evidence Act likewise relates only to sexual offences. Indeed, even had this charge been of a sexual nature, the complaint would not have been admissible at the instance of the prosecution as V did not give evidence and his consistency was not in issue.
The admission of inadmissible material of this out of court conversation led to cross-examination of Ms W on what she had told police about it, and then to her police statement going into evidence. None of that should have occurred.
It is apparent that the magistrate placed some weight – although perhaps not much – on her acceptance of Ms W’s evidence that the complaint was made and its terms to assist in proof that the appellant’s actions were without V’s consent: [80]. Such a use was perhaps not critical in the circumstances of this case as plainly Ms F’s evidence was sufficient to prove lack of consent. However, in a case where there was a clear conflict of evidence between Ms F and the appellant as to the nature of the interaction and the circumstances in which it occurred, no doubt the terms of the conversations between Ms W and V would have tended to confirm in the magistrate’s mind the accuracy of Ms F’s observations.
The evidence should not have been admitted and I cannot be satisfied that it had no impact upon the magistrate’s deliberations.
Grounds 7 and 8 – cross-examination as to motive
These grounds complain that the magistrate allowed cross-examination of the appellant going to his knowledge of any motive Ms F might have to falsely implicate him, and then used against him his inability to provide such a motive. As I have noted, there was no objection to the questions asked by the police prosecutor of the appellant going to his knowledge of motive. Accordingly, ground 7 really amounts to a complaint that the magistrate failed to intervene to disallow those questions.
In Palmer v The Queen (1998) 193 CLR 1 at [7] of the plurality judgment of Brennan CJ, Gaudron and Gummow JJ the following was said:
But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.
In Hargraves v The Queen; Stoten v The Queen (2011) 85 ALJR 1254 at [44] the Court, having referred to Palmer, added this:
To introduce an inquiry into why would the complainant lie would focus the jury’s attention on irrelevancies by inviting the jury to accept the complainant’s evidence unless there were some demonstrated motive to lie. That would deny that the trial is an accusatorial process in which the prosecution bears the onus of proving the offence beyond reasonable doubt.
There is no reason to perceive that these principles are confined to cases where the charge is of a sexual nature or where the trier of fact is a jury. However, had the magistrate in this case not referred in her reasons to the passages of evidence now complained of, I would have been slow to find that the questioning had any impact in deflecting the magistrate from her task.
At [41] of her reasons the magistrate observed that the appellant was not able to say why Ms F’s account of the event was so different from his own. The magistrate also related that the appellant had no idea why Anthony denied being in the position in which the appellant said he was. These references to the passages of cross-examination occurred in the course of a summary of the evidence. The magistrate did not apparently base any particular finding on these passages. However, since the magistrate referred to this evidence it is difficult to be sure that she had absolutely no regard to it and placed no weight on it.
Having regard to the fact that the evidence was admitted without objection, and in view of the fact that the magistrate did not expressly base any finding on this passage of evidence, I would have been slow to allow the appeal solely on this basis. However, as seen, the appeal does not rest only on this ground.
Grounds 10 and 11 – appeal against sentence
The appellant was sentenced to four months imprisonment, which term was suspended upon his entering into a good behaviour bond in the sum of $750 to be of good behaviour for 18 months. Again, comprehensive and careful reasons for the sentence were given by the learned magistrate. The complaint upon appeal is that the offending did not justify a sentence of imprisonment, as opposed to some lesser disposition.
The appellant had no history of violence nor any relevant prior convictions. He apparently had a good work record. The offending, even on the prosecution case, appeared to be isolated and spontaneous. The appellant had undertaken specialised training to equip him for his work as a carer. It was suggested that the effect of a conviction was that he would be unable to work in that vocation in the future.
It may be accepted that the penalty imposed was a significant one. It is true that the prosecution allegations were of a quick outburst of violence. However, there can be no doubting that the evidence of Ms F painted the picture of a very nasty assault. The fact that it was committed by a person responsible for caring for V made it all the more reprehensible and serious.
As the conviction is to be quashed by reason of the errors identified in grounds 4 and 6 I need not finally determine the issue of sentence. However, I would say that in my view the penalty imposed was not outside the range of penalties available to the magistrate in all the circumstances of this matter.
Conclusion
For the foregoing reasons the appeal against conviction succeeds. It is unnecessary to finally determine the appeal against sentence.
The orders I make are:
1.the appeal against conviction is allowed;
2.the conviction for assault with a circumstance of aggravation is set aside;
3.the matter is remitted to the Magistrates Court for re-trial.