Singh v Police - [2013] SASC 161

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SINGH v POLICE
[2013] SASC 161
Reasons for Decision of The Honourable Justice David
24 October 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
MAGISTRATES - GENERALLY - POWERS AND DUTIES - REASONS
PROCEDURE - JUDGMENTS AND ORDERS - IN GENERAL - STATEMENT OF REASONS FOR DECISION
Appeal against conviction. The defendant and respondent was charged with one count of assault and two counts of aggravated assault. The prosecution’s allegations related to an incident which occurred when the defendant taxi driver was driving the two complainants home. An argument developed between the defendant and the complainants regarding the payment of a cleaning fee. Count one related to the defendant’s alleged conduct in repeatedly pushing the female complainant to the ground. Counts two and three related to the defendant’s alleged conduct in driving his vehicle towards both complainants in an aggressive manner. Both complainants gave evidence which differed in certain respects from that given by the other. The defendant gave evidence in which he denied the allegations. The defendant also called evidence of his good character. Following a submission that the defendant had no case to answer in respect of counts two and three, the Magistrate dismissed those counts, inter alia due to the inconsistencies in the prosecution evidence. The Magistrate found the defendant guilty in relation to the first count. The defendant appealed against that conviction. Whether the reasons of the Magistrate were inadequate. Whether the Magistrate erred in failing to set out to deal adequately with the defence case. Whether the Magistrate erred in failing to reconcile her findings as to the unreliability of the police witnesses in respect of counts two and three with her acceptance of the evidence of those witnesses in respect of count one. Whether the Magistrate erred in failing to remind herself of the relevant burden and onus of proof.
Held: Appeal allowed. The reasons of the Magistrate contain important omissions regarding the credibility of the defendant and the reliability of the police witnesses. These omissions were of particular significance due to the fact that the evidence before the Magistrate was starkly a contest between the credibility of the prosecution witnesses and that of the appellant. The omissions amounted to a miscarriage of justice. Proceeding remitted to the Magistrates Court for a retrial before a differently constituted court.
Rowland v Police (2001) 79 SASR 569; Papps v Police (2000) 77 SASR 210, applied.

SINGH v POLICE
[2013] SASC 161
Magistrates Appeal: Criminal

DAVID J: This is an appeal against conviction. The defendant and appellant, Satnam Singh, was charged on information as follows:
1On the 23RD day of DECEMBER, 2011 at BLAIR ATHOL in the said State assaulted SHIRANTA COABY and thereby caused harm to HER.
Section 20(4) of the Criminal Law Consolidation Act, 1935.
This is a basic offence.
This is a minor indictable offence.
2On the 23RD day of DECEMBER, 2011 at BLAIR ATHOL in the said State assaulted SHIRANTA COABY.
Section 20(3) of the Criminal Law Consolidation Act, 1935.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that THE OFFENDER USED OR THREATENED TO USE AN OFFENSIVE WEAPON TO COMMIT OR WHEN COMMITTING THE OFFENCE.
This is a minor indictable offence.
3On the 23RD day of DECEMBER, 2011 at BLAIR ATHOL in the said State assaulted WILLIAM COULTHARD.
Section 20(3) of the Criminal Law Consolidation Act, 1935.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that THE OFFENDER USED OR THREATENED TO USE AN OFFENSIVE WEAPON TO COMMIT OR WHEN COMMITTING THE OFFENCE.
This is a minor indictable offence.
The defendant pleaded not guilty to each count and the matter proceeded to trial in the Magistrates Court. On 18 February 2013, following a submission by the defendant that he had no case to answer in relation to counts two and three, the Magistrate delivered ex tempore reasons dismissing those counts. On 27 March 2013, the Magistrate delivered her verdict in relation to count one and found the defendant guilty on that count. The defendant appealed against that conviction.
On 1 August 2013, I made an order allowing the appeal and returning the matter to the Magistrates Court for retrial before a differently constituted court. On that occasion, I delivered ex tempore reasons for my decision.
The prosecution’s allegations concern an incident which occurred when the defendant, who was a taxi driver at the time, was driving the complainants, Shiranta Coaby and her male companion, William Coulthard, home in the early hours of the morning. Ms Coaby and Mr Coulthard had been in the city drinking. There was no dispute at trial that both Ms Coaby and Mr Coulthard were intoxicated. They hired a taxi driven by the defendant and either Ms Coaby or Mr Coulthard directed the defendant to drive to Kilburn.
Ms Coaby gave evidence that when the taxi got to Prospect Road, she asked the defendant to pull over so that she could vomit. The defendant pulled over and Ms Coaby undid her seatbelt, leant out of the taxi and vomited in the gutter. According to Ms Coaby, no vomit went in the taxi. After a couple of minutes, the taxi continued travelling towards a supermarket in Kilburn. Once the taxi arrived at the supermarket, the defendant parked the vehicle in a disabled park out the front. Ms Coaby got out of the taxi and walked behind the taxi whilst Mr Coulthard paid the defendant the fare.
Ms Coaby gave evidence that the defendant then got out of the taxi and asked Ms Coaby to pay a $90.00 clean up fee. The defendant and Ms Coaby argued about whether Ms Coaby had vomited in the taxi. Ms Coaby asked to be shown where the vomit was but the defendant refused to let her look inside the taxi. The defendant then pushed Ms Coaby with both of his hands, causing her to fall backwards and hit the ground. Ms Coaby used her hand to break her fall. She stood up and was again pushed onto the ground. She again stood up and was pushed to the ground a third time. The first count on the information related to this alleged pushing of Ms Coaby by the defendant.
Ms Coaby gave evidence that she then pushed herself back, sat on a step and looked at her hand, noticing a graze to the palm and cut on the side. A second taxi arrived and the driver spoke to the defendant in a language other than English. The second taxi left. Mr Coulthard then came over. The defendant got back in the taxi and sped around to where Ms Coaby and Mr Coulthard were and came close such that Ms Coaby had to move her legs to avoid being hit by the taxi. Mr Coulthard was standing at this time and Ms Coaby was sitting. The defendant then did a second U-turn and Ms Coaby stood up and stepped back. The defendant then drove away. The second and third counts on the information related to the defendant’s alleged actions in driving the taxi at Ms Coaby and Mr Coulthard. It was further alleged that these counts were aggravated as a consequence of the defendant’s use of an offensive weapon, namely a motor vehicle.
Mr Coulthard gave evidence which differed in certain respects from the account given by Ms Coaby. Mr Coulthard recalled that he paid the defendant $20.00 at the start of the journey. Mr Coulthard also gave evidence that it was at his request that the defendant pulled over so that Ms Coaby could vomit. Ms Coaby leant out of the taxi and vomited outside the door. She kept her seatbelt on but moved it so that she could lean out of the taxi. When the taxi arrived at the supermarket, Ms Coaby and the defendant both got out of the taxi and began arguing about the clean up fee. The defendant allowed Ms Coaby to look inside the vehicle. Mr Coulthard then got out of the vehicle and saw Ms Coaby getting up off the ground. He then saw the defendant push Ms Coaby again. He then helped Ms Coaby off the ground and the defendant pushed Ms Coaby for a third time. Mr Coulthard noticed that Ms Coaby had gravel cuts on her hands from stopping the fall. The defendant jumped into his taxi and said that he was going to call the police. The defendant used the radio. The defendant then told Ms Coaby and Mr Coulthard to wait for the police to arrive and Mr Coulthard agreed that they would wait. Another taxi then arrived and the two taxi drivers spoke together in a language other than English. The other taxi then left and the defendant did laps around Ms Coaby and Mr Coulthard, before driving away.
A statement of Dr Amin was tendered. It established that Ms Coaby sustained a fracture to her right fifth metacarpal.
The defendant gave evidence in his defence. He said that two passengers, one male and one female, got into his taxi near the Adelaide Casino. He said that the male passenger paid him a $20.00 upfront fee. During the journey, he stopped the taxi twice at the direction of the male passenger so that the female passenger could vomit. On the second occasion, the female passenger vomited both inside and outside of the taxi. After the taxi arrived at the supermarket in Prospect, the defendant asked the passengers to pay a cleaning fee. The passengers became abusive. The defendant called the radio operator and stated that the passengers would not pay the cleaning fee, and asked that the police be sent. The passengers exited the taxi and began to walk away. The defendant wound down his window and called to them to come back to wait for the police. The passengers came back and the female tried to punch the defendant through the window of the taxi. The defendant wound up the window and drove away. The defendant denied having pushed Ms Coaby causing her to fall. He also called evidence of good character.
The Trial
On 18 February 2013, the Magistrate delivered ex tempore reasons regarding the no case to answer submission. Her Honour dismissed both counts 2 and 3, and observed:
Ms Coaby’s evidence is that the car was driven at her whilst she was seated, initially while she was on the ground and she had to back up to the kerb in order to avoid it whilst apparently remaining on the ground.
Mr Coulthard’s evidence is rather unclear. He said the vehicle went left, drove off, went round; they then ran towards the footpath as the vehicle came back towards them.
The question at this time is whether a jury, properly directed, could convict. I think there is a very strong argument the vehicle in these circumstances does not constitute an offensive weapon. It is a very different situation where a person runs and gets into a car and then deliberately aims it and it is quite clear that the purpose for which the vehicle is being driven at that time is in order to deliberately cause injury.
The evidence at best with regards to these particular counts I consider to be very unsatisfactory. If with regard to Ms Coaby there is sufficient evidence for a jury to convict, I, in any event consider that it is so weak and conflicting with that of Mr Coulthard that I could not be satisfied that offence is made out with respect to counts 2 and 3.
With respect to count 2, strictly speaking, I think there is a case to answer, but I consider the evidence is so weak that it would not be appropriate to proceed on that charge. With respect to count 3, I do not consider there is a case to answer.
Counts 2 and 3 at this point, I dismiss. Count 1 we still have to go on with.
On 27 March 2013, the Magistrate delivered her verdict in relation to count 1, and found the defendant guilty on that count. Her Honour observed:
A lot of the evidence in this matter is not in dispute. Ms Coaby and Mr Coulthard [had] been in the city drinking. They hired a taxi driven by Mr Singh. The taxi latter pulled over at Mr Coulthard’s request on at least one occasion and Ms Coaby vomited during the journey. Mr Coulthard had already paid the fare at the beginning of the journey. Ms Coaby believed this was not so, but conceded it could be correct, and it was certainly agreed as between Mr Coulthard and the defendant.
Initially the defendant was directed to a residential address, but was then re-directed to the Coles Supermarket at Kilburn or Blair Athol. There was a dispute between the parties over whether or not an $88 cleaning fee had to be paid. The police were called to the location by Mr Coulthard and upon their arrival, Ms Coaby and Mr Coulthard were present, but Mr Singh was not.
Tapes of radio communications with Mr Singh’s operator have been produced.
At 6.26.34 Mr Singh rang the taxi operator and requested police be called because a passenger had vomited in his taxi, but would not pay the cleaning fee. The operator asked whether the passenger was male or female and Mr Singh is not heard to reply.
At 6.28.37 the operator called Mr Singh and Mr Singh does not reply.
At 6.29.21 the operator again calls Mr Singh and Mr Singh does not reply.
At 6.30.18 Mr Singh calls the operator and says he no longer needs the police as the passengers have gone.
At 6.45 a.m. Constables Mitchell and Netherclift were tasked to the Coles carpark on Prospect Road, Blair Athol. There is no evidence before me as to the time that call was actually received by the ‘Triple 0’ operator.
At 5.30 p.m. on 24 DECEMBER 2011, Ms Coaby is seen by Dr Amin at the Modbury Hospital. She has a painful, swollen bruised hand and an X-ray revealed a fracture to the right fifth metacarpal joint.
There are inconsistencies in the evidence of Ms Coaby and Mr Coulthard, in particular concerning payment, but also as regards the movement around the taxi after they had exited the taxi and were at the Coles carpark area. Ms Coaby refers to crawling to the kerb after being assaulted. Mr Coulthard does not refer to that. However, Ms Coaby and Mr Coulthard both say that Ms Coaby got out of the taxi first and Mr Coulthard a little later. They both say Mr Singh got out of the taxi and pushed Ms Coaby. Mr Coulthard in evidence says he did not see the initial push because he was still in the taxi. Mr Coulthard told the ‘Triple 0’ operator that the taxi driver punched Ms Coaby whereas both Ms Coaby and Mr Coulthard now say that she was pushed.
The injury is consistent with that described by Mr Coulthard to the ‘Triple 0’ operator. There is no doubt Mr Coulthard had been drinking, but I have listened to his ‘Triple 0’ call again and it is, in my view, quite coherent, in sequence and is largely consistent with his current testimony and that of Ms Coaby in its material particulars.
When the defendant spoke to the taxi operator on the last occasion, he was apparently upset. He was angry at having not been paid the cleaning fee, which is contrary to his normal behaviour, as attested to by his witnesses. The defendant’s witnesses have given evidence of his hardworking and placid nature. He was, in the phone call, obviously angry. He was swearing and he was being negative with respect to the taxi operator himself and also with regard to the police, in that police had not attended as required.
In evidence, the defendant says he drove away from Ms Coaby and Mr Coulthard because Ms Coaby had attempted to punch him and because he thought they may damage the taxi. He was in fear, he thought he needed to get away from them, but they had gone. He says nothing to the operator about any of this; about Ms Coaby attempting to punch him or about them hitting the taxi, even though he was angry at the operator and at the police. His only concern at the time when he spoke to the operator was the fact he had not been paid the cleaning fee.
When the police arrived, the defendant was not there. When the operator tries to contact the defendant at 6.28 and 6.29 there is no obvious response from the defendant.
I am satisfied beyond reasonable doubt the defendant did in fact exit his vehicle and chase after Ms Coaby in order to try to get her to pay the $88. I am satisfied beyond reasonable doubt this happened after Mr Singh had contacted the operator at 6.26.34 and that is why there is no response at 6.28 and 6.29. I am satisfied beyond reasonable doubt the defendant was angry with Ms Coaby that she would not pay the cleaning fee and that he pushed Ms Coaby, thereby causing her to fall to the ground on three occasions. Further, that the defendant re-entered the taxi and called the operator at 6.30 and then left the scene. I am satisfied beyond reasonable doubt Ms Coaby suffered the injury to her hand as a result.
Accordingly, I find the defendant guilty of the offence in count 1.
The defendant appealed against that conviction in respect of count 1.
The Appeal
On the appeal, the defendant complained that the reasons of the Magistrate were inadequate. In particular, it was submitted that the Magistrate failed to explain her determinations of fact as contained within the emphasised passage of the preceding extract. It was submitted that that failure prevented this Court from saying why it was that the Magistrate preferred the evidence of the prosecution witnesses and dismissed the evidence of the defendant. It was submitted that it was incumbent on the Magistrate where she accepted the evidence of Ms Coaby and Mr Coulthard about matters of significance in preference to inconsistent evidence given by the defendant, to provide reasons why the conflict was resolved in that way. The defendant pointed out that the Magistrate’s reasons contain no reference to several matters including the demeanour of the witnesses, the effect of intoxication on Ms Coaby and Mr Coulthard, inconsistencies in the evidence given by Ms Coaby and Mr Coulthard regarding the making of an emergency “000” phone call, and any warning that if the Magistrate considered the defendant’s evidence even reasonably open or possible then she should acquit.
The defendant also contended that the Magistrate did not set out to deal adequately with the defence case. In particular, it was submitted that the Magistrate did not direct herself as to the use that could be made of the evidence of good character that was led by the defence.
The defendant further complained that the Magistrate failed to reconcile her findings as to the unreliability of the police witnesses in respect of counts two and three with her acceptance of the evidence of those witnesses in respect of count one. The defendant submitted that the Magistrate’s reasons for granting the no case to answer submission on counts two and three revealed that she had serious misgivings about the evidence of Ms Coaby and Mr Coulthard. However, it was contended that the Magistrate’s findings in relation to count two and three were incorrectly quarantined from any consideration of the evidence in respect of count one.
Finally, the defendant submitted that the Magistrate failed to remind herself of the presumption of innocence, the burden of proof, the need to dismiss the defendant’s version of events as not being reasonably open or possible before a conviction could be recorded and that, if the truth could not be determined, the defendant must be acquitted.
The prosecution submitted that, while the reasons of the Magistrate were brief, they adequately summarised the evidence and included assessments as to the credibility of the prosecution and defence witnesses. It was contended that the case was clearly one of preferring the prosecution witnesses over the accused in light of the independent evidence presented and that, in those circumstances, nothing more needed to be said.

The prosecution further contended that the Magistrate had observed that the evidence of the defendant’s good character and placid nature was contradicted by the evidence of his angry demeanour when he had spoken to the taxi operator. It was contended that the good character evidence was of limited value and did not need to be further discussed by the Magistrate.
The prosecution submitted that the Magistrate’s findings in relation to counts two and three were reconciled with her findings in relation to count one. In particular, it was contended that the Magistrate had deemed the evidence of Ms Coaby and Mr Coulthard to be inconsistent in relation to counts two and three, but consistent in relation to count one.
Finally, the prosecution submitted that the matters omitted from the reasons of the Magistrate were “elementary matters” and that, in accordance with the authority of Rowland v Police,[1] it should be assumed that these matters were correctly applied by the Magistrate.
[1] (2001) 79 SASR 569, [33].
The requirement of Magistrates to give adequate reasons for their decisions was discussed in Papps v Police.[2] Gray J, with whom Olsson and Wicks JJ agreed, held that a failure to give adequate reasons constitutes an error of law.[3] Gray J further observed:[4]
[2] (2000) 77 SASR 210.
[3] (2000) 77 SASR 210, [33].
[4] (2000) 77 SASR 210, [34]-[38].
The courts have encountered difficulty in articulating a test to determine whether or not reasons are adequate. Much must depend upon the circumstances of each case. As was said in Lawson v Lee, the reasons must be "coherent, intelligible and comprehensive". But there is more. The reasons must be adequate to allow an appellate court to perform its function and they must be such that justice is seen to be done. As was said in Sun Alliance Insurance Ltd v Massoud:
"The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected."
In my view, the need for justice to be seen to be done represents a basis against which the adequacy of reasons are to be assessed.
The issue that then arises is whether the magistrate's reasons in this matter were adequate. The resolution of the issue of credit was central and critical to a proper consideration of the charges. The magistrate dealt with the credit of the police witnesses, and his assessment of them, but he did not deal at all with the credit of the defendant or his witness or his assessment of them. He gave no reasons for his rejection of the defence case.
As Samuels AJ said in NRMA v Tatt:
"By recording only one side of the judicial equation he has deprived this Court of the opportunity of assessing the weight to be given to the finding on credit, which might thus be accorded for [sic] greater cogency than in the whole of the context it properly deserves. It is, to my mind, impossible for a judge to make a finding on credit in a vacuum, as it were, without relating the witness' evidence, demeanour and particular circumstances to the other material evidence in the case ... the comparison which an appellate court may make is between findings made by the judge below; that is to say, his or her finding on credibility viewed against findings on other evidence. It is only by this means that the appellate court can judge whether deference or disagreement is the appropriate response ... "
This Court is left to speculate as to why the defence evidence was rejected. The magistrate failed to reveal the reasoning on which the critical finding was based. The lack of reasons frustrates the performance by this Court of its appellate duties. The magistrate's reasons were inadequate.
[Footnotes omitted].
In Rowland v Police,[5] Perry J made the following observations regarding the sufficiency of reasons given by a Magistrate:[6]
[5] (2001) 79 SASR 569.
[6] (2001) 79 SASR 569, [28]-[35].
In the case of appeals from decisions of magistrates, there are several important considerations to bear in mind.
In the first place, the Magistrates' Court in its Criminal Division is still a court of summary jurisdiction. Furthermore, it is the court which unquestionably deals with the highest volume of criminal cases of any court in South Australia. It is the court before which by far the greater proportion of those members of the community who are dealt with in the criminal justice system will appear.
The workload on magistrates has increased substantially in recent years. They are expected to dispose of an ever-increasingly large number of cases.
Against that background, I would be reluctant to pitch any definitive statement of the obligations of magistrates to give reasons for their decisions at an unrealistically demanding level.
It is not necessary for magistrates to produce "long and elaborate reasons", a concise statement is sufficient. See Halsbury's Laws of Australia:
" ... although a court is obliged to give reasons, it is not obliged to explain every step in its reasoning, given the large scope for intuition, evaluation and guesswork."
As for matters of law, it will be assumed, without reasons necessarily being given, that the magistrate is familiar with and has correctly applied elementary matters such as an understanding of the onus of proof.
As for factual matters, it will often be the case that factual issues will be resolved by preferring the evidence of one witness over that of another, particularly where it comes down to a question of "oath against oath". In such circumstances, it may be sufficient for a magistrate to say that he or she has preferred the evidence of a witness based on an assessment of demeanour, or because one witness was found to be more convincing than another, or because the evidence given by one witness was inherently implausible or for some other shortly stated reason. See R v Keyte per Doyle CJ:
"I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence."
In almost all cases, a short succinct statement of the essential process by which a magistrate has reached his or her decision is sufficient. More often than not, an economical use of words will reveal the process of reasoning more clearly.
[Footnotes omitted].
In my view, the reasons of the Magistrate contain several important omissions. The Magistrate did not set out to deal adequately with the defence case. The Magistrate failed to direct herself as to the use that could be made of the character evidence that was led by the defence. The Magistrate did not direct herself as to the influence that intoxication would have on the credibility of both Ms Coaby and Mr Coulthard. These omissions were of particular significance due to the fact that the evidence before the Magistrate was starkly a contest between the credibility of the prosecution witnesses and that of the defendant.
In my view, the omissions in the reasons of the Magistrate were so fundamental that a miscarriage of justice has occurred. It was for this reason that I made an order returning the matter to the Magistrates Court for retrial before another Magistrate.