Schoolderman v Police - [2012] SASC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCHOOLDERMAN v POLICE
[2012] SASC 57
Judgment of The Honourable Justice Blue
13 April 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
EVIDENCE - ADMISSIBILITY AND RELEVANCY - FACTS RELEVANT TO FACTS IN ISSUE - IN GENERAL
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IMPEACHMENT OF CREDIT AND ADMISSIBILITY OF EVIDENCE AS TO CREDIT - PRIOR INCONSISTENT STATEMENTS
Appeal against conviction on three counts of assault and one count of assault causing harm during a single confrontation.
Whether Magistrate erred in refusing application for summons to Commissioner of Police for production of documents – whether sufficient prospect that summons would produce relevant documents. Whether convictions unsafe and unsatisfactory – whether Magistrate erred in failing to make findings concerning other incidents as contextual and relationship evidence – whether Magistrate erred in assessing inconsistencies of the prosecution witnesses – whether Magistrate erred in assessing appellant’s credit.
Held: appeal allowed – convictions on all four counts set aside – matter remitted for retrial in the Magistrates Court – not demonstrated that, on the material before the Magistrate, there was sufficient prospect that the issue of a summons would have produced relevant documents – Magistrate did not err in assessment of the alleged inconsistencies of and between the prosecution witnesses – Magistrate did not err in assessment of appellant’s credit – Magistrate erred in failing to make findings of fact about the occurrence of other incidents treated as relevant to a fact in issue – Magistrate erred in failing to make findings as to whose evidence he accepted with respect to those incidents – in absence of findings on these matters not possible to be satisfied on appeal beyond reasonable doubt that the appellant is guilty of the four counts.
Summary Offences Act 1953 (SA) s 23; Criminal Law Consolidation Act 1935 (SA) s 20, referred to.
AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Crowther v Police [2008] SASC 302; Goldsmith v Sandilands (2002) 76 ALJR 1024; Mackenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; Police v Slater (2003) 86 SASR 189; Police v Turbitt (2005) 92 SASR 480; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; R v Nieterink (1999) 76 SASR 56, considered.

SCHOOLDERMAN v POLICE
[2012] SASC 57
Magistrates Appeal: Criminal

BLUE J: On 13 January 2010, over the course of a few minutes, a confrontation[1] occurred between the appellant/defendant Mr Schoolderman and his son on the one hand and members of two neighbouring families on the other hand.
[1] I use the term “confrontation” in a neutral sense without implying blame on the part of any participant.
Mr Schoolderman…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Schoolderman v Police

Details

AGLC: Schoolderman v Police [2012] SASC 57
Case: [2012] SASC 57
Decision Date: 13 April 2012

CaseChat Overview and Summary

In the case of Schoolderman v Police, Mr Schoolderman appealed against his convictions on several grounds. He argued that the Magistrate had erred in refusing his application for a summons to the Commissioner of Police for the production of documents and that his convictions were unsafe and unsatisfactory. The appeal centered on the Magistrate’s handling of inconsistencies in the evidence of prosecution witnesses and the assessment of the credibility of Mr Schoolderman. The appeal also questioned the relevance of other incidents between Mr Schoolderman and some of the complainants.

The legal issues that the court had to decide included whether the Magistrate had properly assessed the inconsistencies between the prosecution witnesses' court evidence and their earlier statements, the Magistrate's assessment of Mr Schoolderman’s credibility, and the Magistrate's failure to consider other relevant incidents. The court needed to determine if the Magistrate's conclusions regarding the convictions were adequately supported by the evidence presented.

The court found that while the Magistrate had set out the inconsistencies in the evidence, the reasons provided were insufficient to justify the convictions on counts 2 to 5. The court noted that Mr Schoolderman did not argue that the verdicts were inconsistent with each other or that no reasonable trier of fact could have found him guilty. Instead, the complaint focused on the adequacy of the reasons given by the Magistrate. The court concluded that it could not be satisfied beyond reasonable doubt based on the transcript and exhibits that Mr Schoolderman was guilty of the offences.

The conviction of Mr Schoolderman in respect of counts 2 to 5 was set aside, and the matter was remitted for retrial in the Magistrates Court. The court's decision highlights the importance of a thorough and transparent assessment of evidence, particularly when it comes to the credibility of witnesses and the consistency of their statements.

Orders

Orders of the court

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Background

Background to the litigation

Mr Schoolderman appeals against the convictions on two grounds:1the Magistrate erred in refusing his application for a summons to the Commissioner of Police for the production of documents;2the convictions are unsafe and unsatisfactory, which in turn involves three principal contentions:(a) the Magistrate erred in failing properly and adequately to assess inconsistencies between the evidence of each prosecution witness in court and their earlier statements prepared by the police, and as between the different prosecution witnesses;(b) the Magistrate erred in his assessment of the credit of Mr Schoolderman;(c) the Magistrate erred in failing to make findings concerning other incidents between some of the complainants and Mr Schoolderman’s family which were relevant as contextual and relationship evidence.[5]It is convenient to address 2(a) and 2(b) first and then 1 and 2(c) in conjunction.[5] See R v Nieterink [1999] SASC 560; (1999) 76 SASR 56.Background facts Mr Schoolderman resided, together with his son (then aged 8) and his mother, at his mother’s house. Prosecution witnesses Mrs F and her daughters LF (then aged 13) and AF (then aged 11) resided around the corner. Next door to Mrs F’s house resided prosecution witness Mrs K (together with her husband Mr K and their son, neither of whom were present during the confrontation or were called as witnesses) and on 13 January 2010 they were being visited by a friend of their son, prosecution witness KH. It was common ground that on 13 January 2010 at about 4.30pm Mr Schoolderman and his son were walking on the opposite side of the street adjacent to Mrs F’s house. Mrs F’s dogs began barking. Mr Schoolderman shouted at them to “shut up”. It was also common ground that, in the course of the ensuing confrontation, Mr Schoolderman made contact with Mrs K and Mrs F (causing her to fall over), but the nature of the contact and what led to it were hotly contested. The prosecution case was that:1Mr Schoolderman pulled down his pants and exposed himself to LF and AF (count 1);2Mr Schoolderman spat on LF (witnessed by AF, Mrs F and Mrs K) (count 2);3Mr Schoolderman punched Mrs K in the face (witnessed by LF, AF, Mrs F and KH) (count 3);4Mr Schoolderman punched Mrs F several times, during the course of which she fell to the ground and suffered injury to a tooth (witnessed by LF, AF, Mrs K and KH) (count 4);5Mr Schoolderman punched LF (witnessed by AF, Mrs F, Mrs K and KH) (count 5);6Mr Schoolderman elbowed AF (witnessed by LF and Mrs F). The defence case was that:1Mr Schoolderman did not pull down his pants or expose himself;2Mrs F grabbed Mr Schoolderman around the throat and pulled off his necklace and he pushed her in the side of the face, causing her to fall to the ground, but this was in self defence; 3Mr Schoolderman pushed Mrs K in the side of her face, which was also in self defence;4Mr Schoolderman did not make any contact with either LF or AF.Mr Schoolderman and his son gave evidence to this effect.

Evidence

Evidence Before The Court

The Magistrate then assessed the evidence in relation to each count sequentially. The Magistrate concluded that he was not satisfied beyond reasonable doubt in relation to counts 1 and 6, taking into account internal and external inconsistencies in the evidence of the prosecution witnesses. The Magistrate concluded that he was satisfied beyond reasonable doubt in relation to counts 2 to 5. Inconsistencies in the evidence of prosecution witnesses One of Mr Schoolderman’s principal contentions on appeal is that the Magistrate did not give proper and adequate consideration to the inconsistencies in reaching his conclusion that counts 2 to 5 were proved beyond reasonable doubt. It is important to note that Mr Schoolderman does not contend that the verdicts of acquittal on counts 1 and 6 are inconsistent[6] with the verdicts of guilty on counts 2 to 5 inclusive. Nor does Mr Schoolderman contend that no reasonable trier of fact could have been satisfied of his guilt beyond reasonable doubt on counts 2 to 5 in light of the inconsistencies.[7] Rather the complaint is in respect of the adequacy of the reasons given by the Magistrate in addressing the topic of inconsistency.[6] In the sense described by the High Court in MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 and MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606.[7] At the hearing of the appeal, Mr Schoolderman withdrew the ground of appeal which challenged the Magistrate’s rejection of that submission at the close of the prosecution case. In relation to count 1 (indecent behaviour), there were the following internal and external inconsistencies in the evidence of those prosecution witnesses who gave evidence concerning it.1There was no mention of the incident in the statements taken by the police from LF which she signed.2There was no mention of the incident in the statements taken by the police from AF which she signed.3Mrs K gave evidence (in cross‑examination but not in‑chief) that the exposure occurred at the end of the confrontation as opposed to the beginning (for which she was not present) and there was no mention of exposure in the statements taken by the police which she signed.4Mrs F gave evidence‑in‑chief that the exposure occurred at the end of the confrontation and not the beginning (at which she was not present), but then at the end of cross‑examination (in answer to questions from the Magistrate) said that the exposure occurred at the beginning and again at the end of the confrontation. The Magistrate set out these matters in his reasons and concluded that he had a reasonable doubt about guilt on count 1. In relation to count 6 (elbowing AF), there were the following internal and external inconsistencies in the evidence of those prosecution witnesses who gave evidence concerning it.1AF said in evidence that she tried to push Mr Schoolderman away by his right arm and he then elbowed her on the side of her jaw; whereas in the statements prepared by the police and signed by her she said that he shouldered her. 2LF gave evidence that Mr Schoolderman elbowed AF; whereas it was not mentioned in the statements prepared by the police and signed by her.3Mrs F gave evidence that Mr Schoolderman elbowed AF; whereas the prosecutor’s notes recorded her as saying during proofing that he punched AF.

Decision

Reasons for decision

Given the holistic nature of an overall finding beyond reasonable doubt as to what occurred on 13 January 2010, without seeing and hearing the prosecution and defence witnesses, it is simply not possible for me to be satisfied beyond reasonable doubt on the face of the transcript and exhibits that Mr Schoolderman is guilty of those offences. Conclusion The conviction of Mr Schoolderman in respect of counts 2 to 5 is set aside and the matter is remitted for retrial in the Magistrates Court.

Ratio Decidendi

Legal Principle Established

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