Slattery v Police No. Scgrg-98-1498 Judgment No. S250

SLATTERY v -POLICE
[1999] SASC 250

Magistrates Appeal: Criminal

MULLIGHAN J The appellant was charged on complaint with three counts of common assault. It was alleged that on 20th October 1997 he went to the house of Mr and Mrs Adams at Athelstone the parents of his former defacto wife, where she was living and assaulted them. There were two charges of assault upon Mr Adams and one on Mrs Adams. The appellant pleaded not guilty to each charge.
After a trial before a learned Magistrate, he was found guilty of all three charges on 2nd October 1998. The learned Magistrate released the appellant on a bond in the sum of $1,000, without conviction on any of the charges, to be of good behaviour for a period of eighteen months and to come up for sentence or conviction if in breach of a condition of the bond. Orders for costs and fees amounting to $478 were made against him. Also, the learned Magistrate made orders presumably pursuant to s19A of the Criminal Law (Sentencing) Act 1988, that the appellant keep the peace towards Mr Adams and Mrs Adams and restraining him from attending at their residence, that any firearm in his possession be surrendered to the police, that he not possess firearms, that his licence to possess a firearm be surrendered to the police and that he be restrained from making an application for such a licence.
The appellant appeals against the findings of guilt on various grounds. There is no appeal against the sentence.
At the time of the incidents which are the subject of the charges, the appellant was aged 27 years. He had lived in a defacto marriage relationship with Ms Adams for about two years but they had known each other for about eight years. They had two children aged five years and three years respectively. By the time of the incidents they had been living apart for a little over two weeks. At that time, Ms Adams and the children were living at the residence of Mr and Mrs Adams. There had been proceedings in the Family Court of Australia in which Ms Adams had obtained an order that the children live with her. The appellant had access to the children every Sunday and on other occasions. The appellant and Ms Adams were not on good terms.
On 20th October 1997 the appellant went to the residence at about 7.30 pm. Ms Adams was in the family room with the children who were finishing their dinner. Mr Adams was with them and he answered the door when the appellant arrived. Mrs Adams was elsewhere in the house.
When Mr Adams went to the door, he told the appellant that he was not welcome at the house and to leave. Mr Adams shut the door and went to the loungeroom and sat down. The appellant kept knocking at the door and eventually Ms Adams went to the door. He wanted to speak to Ms Adams and to see the children. He saw the children briefly and then the appellant went into the house at the invitation of one of the children. There was an altercation between the appellant and Mr Adams and the incidents which are the subject of the charges then occurred.
It was alleged by the prosecution that upon the appellant entering the house, Mr Adams put up his hand for him to stop and told him he was not supposed to be there. The appellant then assaulted Mr Adams by pushing him to the floor and then punching him in the face with his fists causing cuts on the face and bruising about the eye. Ms Adams tried to pull the appellant away from her father and eventually succeeded. She then went back into the hall of the house and stood near her mother. The appellant then went towards the door and pushed Mrs Adams with both hands and she fell and made contact with a piano. Mr Adams then entered the hall and grabbed hold of the appellant by the shoulders. They all then left the house to wait for the police who had been called. Mr Adams then pushed the appellant and he grabbed Mr Adams and threw him to the ground and kicked him in the ankle. He desisted and the wait for the police continued. Constable Luke and Constable Hender eventually arrived. Constable Luke took statements from all members of the Adams family and Constable Hender spoke to the appellant..
The appellant denied these allegations made against him.
At the trial, each of the members of the Adams family, the two police officers, a Dr McKenzie and the appellant gave evidence. The learned Magistrate rejected the evidence of the appellant and accepted, substantially, the evidence of the Adams witnesses and, in particular, the evidence of Mr Adams.
The first ground of appeal is that the learned Magistrate erred in refusing the application of the appellant for an order permanently staying the prosecution by reason of an abuse of process of the court. Before the trial commenced, the appellant and his solicitor were provided with copies of statements of the Adams witnesses and police officers and other documents, including a statement of allegations which had been prepared by police and was part of the police apprehension report. The statements of the Adams witnesses were not signed. Mr Harradine, who appeared as counsel for the appellant at the trial and on this appeal, also acted as his solicitor and attended at the pre-trial conferences and had discussions with the prosecution before the trial.
The apprehension report had been prepared by Constable Hender about four days after the incident at the house. She prepared that part of the report which contained the version of events of each of the Adams witnesses from the notes taken by Constable Luke at the house as typed statements made from those notes soon after. Prior to the trial, the prosecution informed the appellant, before Mr Harradine commenced to act for him, that those notes had been lost. At no time was the appellant, or Mr Harradine, informed that at the trial witnesses would depart from what was set out in their statements. The prosecution also provided particulars of the conduct alleged to constitute the assaults to the appellant.
At the trial, Mr Adams gave evidence which was different from what was attributed to him in the apprehension report but in cross-examination modified his evidence to an extent which conformed with the apprehension report. Ms Adams also departed from her statement which had been provided to the appellant. No notice of these departures had been given by the prosecution to the defence. The next witness was Constable Luke. Mrs Adams then gave evidence and departed from her statement without notice having been given to the defence.
Indeed, the evidence of Mrs Adams and Ms Adams was, in some respects, different from the particulars which had been provided by the prosecution and from what was attributed to them in the apprehension report.
Constable Luke said that he transcribed his notes into statements which were lost when he moved from one police station to another. There is no explanation in the evidence for the existence of the statements which were handed to the defence. It is not disclosed in the evidence if they were prepared by Constable Luke, Constable Hender or someone else. None of the notes or statements were read over by the witnesses. Constable Luke had no contact with any member of the family after the night in question. Constable Hender was called after all members of the Adams family had given evidence. She said that she prepared the apprehension report. At the time she had the handwritten notes of Constable Luke in her possession and she used them to write that part of the report which gave the versions of the Adams witnesses. During cross-examination she was taken through the apprehension report and confirmed that it accurately reflected what was in Constable Luke’s notes and, in particular, in the context of evidence given by the Adams witnesses which differed from the apprehension report.
At the conclusion of her evidence, Mr Harradine applied to have Constable Luke recalled which was opposed by the prosecutor. The learned Magistrate refused the application. He rejected the contention that the appellant was disadvantaged if Constable Luke was not recalled. He took the view that Constable Luke could not advance the matter any further and said that the defence had the original statements, although unsigned, and they had been cross-examined upon them. Mr Harradine then applied for the stay which the learned Magistrate refused. He took the view that the statements had been made available to the defence, and the witness had been cross-examined and that there was no basis to stay the proceedings because the notes and some statements had been lost.
I think the learned Magistrate was correct in his conclusion but not entirely so in his reasoning. In the circumstances, the loss of the notes, and any statements, could not justify the exceptional course of a stay. The losing of the notes and statements, if that is what happened, was unfortunate but was almost entirely remedied by the cross-examination of Constable Hender. None of the Adams’ witnesses was cross-examined on the contents of the statements in the sense of the particular statement attributed to each of them being put to the witnesses. However, the version of events in the apprehension report and in the statements was put to the witness and an explanation for inconsistency given. In that way some prior inconsistent statements were proved with respect to these witnesses but not in the usual way when a witness is confronted with a prior inconsistent statement. Usually, the statement of the witness said to be inconsistent is put to the witness and if denied, is proved by the use of a previous statement in writing of the witness. Here the prior inconsistent statements were proved when each of the Adams witnesses acknowledged that they had said some things to the police which were inconsistent with their evidence. However, they were not shown the unsigned statements. The notes, if still in existence, could have been used for this purpose. So could the apprehension report be used for this purpose. In the circumstances, it was likely that the learned Magistrate would have accepted the evidence of Constable Hender that the apprehension report accurately reflected the contents of Constable Luke’s notes. Each of the witnesses could have been cross-examined on that basis and to some extent they were although the report was not shown to them. The learned Magistrate was not strictly correct when he said that the recalling of Constable Luke would not advance the matter any further. Constable Luke could have given first hand evidence that he had accurately recorded in his notes was what he had been told by the witnesses, a fact which, strictly speaking, could not be proved by the evidence of Constable Hender, but the matter had never progressed to proof of a prior inconsistent statement or statements. Given the uncontradicted evidence of Constable Hender as to the accuracy of the apprehension report, the appropriate witnesses to recall would have been the members of the Adams family after she had completed her evidence if their credibility was to be impugned by proof of prior inconsistent statements.
As the argument on this ground progressed, Mr Harradine acknowledged that the circumstances could not justify the extraordinary course of a stay of the proceedings. Even if Constable Luke had been recalled and said that he may have made errors in the notes, that would not, in my view, constitute grounds for a stay, contrary to Mr Harradine’s argument. He further contended that even though a stay was not, at that stage, an appropriate remedy, the decision of the learned Magistrate refusing the application to have Constable Luke recalled was wrong and justified the finding of guilt being set aside and a re-trial of the complaint. I reject that submission. As I have said, it is likely that the recalling of Constable Luke would have achieved no more than that he had accurately recorded what the witness had said to him and that the apprehension report accurately reflected the contents of his notes, matters which were not in dispute. The appellant could not suffer any prejudice unless he was denied the opportunity to prove a prior inconsistent statement, or statements, and he was not denied that opportunity. The appellant was not denied a fair trial.
There was no relevant unfairness because the prosecutor did not inform the appellant or Mr Harradine that the Adams’ witnesses would give evidence which departed from the contents of the statements. I think there is an obligation on the prosecution to inform the defence of any important change in the version of events of a prosecution witness from that contained in a statement which has been disclosed if the prosecution is aware of the change. However, changes in versions of events, important and unimportant, occur every day in the criminal courts usually without warning to the prosecution and to the advantage of the defence. No such obligation exists in those circumstances. For there to be such an obligation, the change must be about an important or material matter. Here, there is no evidence to suggest that the prosecution was aware of these changes before they were disclosed in evidence and further the changes were as to matters of detail only.
The other grounds of appeal complain about the findings of the learned Magistrate as to the credibility of the prosecution witnesses, the reliability of their evidence and that he did not address the issue of self defence raised by the appellant in his evidence.
Undoubtedly, there were inconsistencies in the evidence of the Adams witnesses which is acknowledged by the learned Magistrate in his reasons for judgment, but he said that he accepted the evidence of Mr Adams. He found it proved beyond reasonable doubt that Mr Adams had told the appellant he was not allowed in the house and that he had to leave. The learned Magistrate concluded that the appellant has no basis to challenge that attitude of Mr Adams. He found it proved beyond reasonable doubt that the appellant entered the house and attacked Mr Adams, which included punching him in the face. He also found that the appellant pushed Mrs Adams causing her to fall to the floor and strike the piano and suffer bruising. He also accepted the evidence of Mr Adams as to the subsequent incident outside the house which occurred whilst waiting for the police. He found that there was a scuffle involving Mr Adams and the appellant, that Mr Adams fell to the ground and the appellant kicked him on several occasions.
As to the inconsistencies in the evidence of the Adams’ witnesses, the learned Magistrate said:
“Where there are inconsistencies as between each of the prosecution witnesses, I am not prepared to draw adverse inference. Such inconsistencies are not surprising. The whole circumstance was such that each of the parties were undoubtedly upset by virtue of the defendant’s entry into the house and it is not surprising that in that highly emotionally charged atmosphere that recollections would be somewhat at variance. I am not troubled by such inconsistencies.”
I have not mentioned Dr McKenzie. He saw Mr Adams at the Modbury Hospital at about midnight on the night of the incidents. He gave evidence at the trial. He said that Mr Adams had numerous small grazes and bruises on his face, bruises on the left forearm, a swollen ankle and mild pain in the left chest wall with some bruising in that area. Also, he said that there were grazes and bruises across the bridge of the nose and under the right eye and a small wound under the left eye. Dr McKenzie expressed the opinion that the injury near the left eye could have been caused by a knuckle, a finger, with a ring, or a shoe. The injury to the ankle could have been caused by a fall or a kick. He said he thought there had been some sharp direct trauma to the ankle, caused by a twisting movement, landing awkwardly or being kicked.
The learned Magistrate found those observations and opinions to be consistent with the evidence of Mr Adams and that conclusion is justified. He found that the injuries were caused by the appellant. He rejected the evidence of the appellant. He said he found him to be evasive on occasions and that he had “a propensity to reconstruct”. He concluded that he was not a reliable witness.
Mr Harradine presented a detailed argument that the learned Magistrate was wrong in these conclusions. The argument was based upon a close analysis of the various inconsistencies in the evidence of the Adams’ witnesses and inconsistencies between their evidence and what was contained in unsigned statements. I have considered those inconsistencies and the argument. However, in doing so, there are matters of considerable importance which must also be considered.
The first is that the incidents occurred over a short period of time in “a highly emotionally charged” atmosphere as was mentioned by the learned Magistrate. It is not surprising that three witnesses would describe, and remember, particular aspects of an incident differently. There may be cause for concern if a crucial feature of an incident was described by witnesses in an entirely different way and for a reason which could not be adequately explained. That might cause a court to doubt a particular witness or witnesses. However, if it is a matter of mere detail which is remembered or described differently, then inconsistency is understandable. Of course, if there were no inconsistencies among the witnesses to such a highly emotionally charged incident, that may be a reason to question the truthfulness of the witnesses.
The second matter is that when the Adams’ witnesses spoke to Constable Luke that emotional state probably still existed which may explain inconsistency in what was said to him. If they had not been shown the documents which purported to be their statements before they gave evidence, it may not be surprising that their evidence departed from what was in the statements, at least as to matters of detail. The third matter is that the learned Magistrate saw and heard the witnesses. He noted the inconsistencies, but he accepted the evidence of Mr Adams. It was his version of events which he accepted and which was supported in some respects by the evidence of Dr McKenzie and, in some respects, by Mrs Adams and Ms Adams. There is nothing in the transcript and in the argument which could lead, on appeal, to rejection of the conclusions of the learned Magistrate. This case was to be determined by what conclusions were reached about the various witnesses and there is no basis to apprehend that the learned Magistrate was wrong in the assessments and findings which he made.
In the main, the inconsistencies were as to where certain incidents occurred, whether there was a kick to the leg or the chest, where persons were standing at particular times, and what was said on occasions during the incidents. None of these matters influenced the learned Magistrate against the acceptance of the evidence of Mr Adams and, in my view, there is no reason why they should have done so in the circumstances.
The learned Magistrate rejected the evidence of the appellant to the effect that Mr Adams was the aggressor and he acted in self defence. There can be no valid criticism of that conclusion given the findings on credibility.
None of the grounds of appeal have been established and the appeal is dismissed.

[1999] SASC 250

18 June 1999