Smith v Police No. Scciv-03-871

SMITH v POLICE
[2004] SASC 25
Magistrates Appeal: Criminal

MULLIGHAN J The appellant was charged with assault occasioning actual bodily harm. He pleaded not guilty and after a trial before a learned Magistrate was convicted and sentenced to imprisonment for two months, which sentence was suspended. He appeals against the conviction.
The appellant went to a nightclub (“the Club”) on the evening of 5 July 2002. Shortly before 11.00 pm he went to the male toilets. Mr Hendry also entered the toilets. There was an altercation between them. Both men left. The appellant returned to the bar area of the Club and met up with friends. A short time later, he left the Club and the incident occurred. On the prosecution case, Mr Hendry and an acquaintance, Mr Zunic were near the entrance to the Club. The appellant punched Mr Hendry in the mouth and knocked out two teeth. Police were called. They questioned the appellant and he was arrested and charged. He denied assaulting Mr Hendry or anyone else.
The prosecution called Mr Hendry, Mr Zunic and the two police officers who attended the scene of the incident. The learned Magistrate accepted the evidence of Mr Hendry and the two police officers. He rejected the evidence of Mr Zunic whom he regarded as a most unsatisfactory witness having concluded that he could not place any reliance on his evidence. The appellant gave evidence at the trial. The learned Magistrate also rejected his evidence. He found that he was intoxicated by alcohol at the time of the incident and that his evidence was inconsistent with the answers he provided to the police officers when questioned by them. The appellant called Ms Byron who was his girlfriend. The learned Magistrate found that she was intoxicated at the time and her observations of relevant events were limited. He regarded her evidence as of little value.
The police officers did not witness the incident during which Mr Hendry was injured. Consequently, the learned Magistrate was faced with the conflicting evidence of Mr Hendry and the appellant. I briefly summarise their evidence.
Mr Hendry told the learned Magistrate that he went to the Club at about 5.30 pm after work. He consumed alcohol but said he was not drunk. He arranged for his girlfriend to pick him up at the Club. Shortly before 11.00 pm he went to the male toilet and into a cubicle. He said that someone, whom he had not seen before, entered the toilet and told him that he was a bouncer and that he was going to remove him from the Club. Words were exchanged. Mr Hendry said that this person was aggressive and abusive. No doubt he was referring to the appellant. Nothing else happened in the toilet.
The appellant left the toilet and Mr Hendry then left and went to the table at the bar where he had been previously. He could not see his girlfriend and so he left the Club to see if she was outside. He told the learned Magistrate that as he left the Club, he was hit in the mouth. The blow came from his left hand side. He said that he saw a figure coming at him and then felt the blow to his mouth. He said that he saw his assailant who continued to behave aggressively and said that he was going to kill him. He identified his assailant as the person who had threatened him in the toilet. At the trial, he identified that person as the appellant.
According to Mr Hendry, the appellant was about one metre away from him immediately after he was assaulted. Mr Zunic was behind him or to one side of him. He said that he was concerned with his injured mouth and was not able to say if there was anyone else in the immediate vicinity but there were other persons nearby. He said that the appellant shaped up to him and said he was going to kill him in an abusive manner. His fists were up in a boxing stance and he ran away. Mr Hendry was looking for his teeth. The two police officers arrived soon after. Mr Hendry said that he pointed the appellant out to the police officer as the person who had assaulted him. He was then about 10 metres away across the road.
Mr Hendry described the clothing of his assailant to the police. He said that he was wearing beige shorts or pants and a white T-shirt or singlet and a black top.
The appellant told the learned Magistrate that he went to a hotel in Pirie Street with Ms Byron and a male friend on the night of the incident. He consumed about eight or nine drinks, some vodka and some beer. They then went to the Club. He could not say what time they arrived at the Club. He said that he went to the toilet after he had been at the Club for about an hour. He used a urinal and saw two men together in a cubicle. He believed they were undertaking a drug deal. The appellant said that the two men became aggressive and abusive towards him. He responded in the same manner and then left the toilet. The two men remained in the toilet and then followed him. He identified the two men as Mr Hendry and Mr Zunic. He said they then walked past him and Mr Zunic gave him a hip and shoulder bump. The appellant told the learned Magistrate he was frightened and left the Club by the front entrance. He turned to his right. Mr Zunic began yelling abuse at him. He walked to a nearby corner and was confronted by Mr Zunic. The appellant took off his jacket and made ready to shape up to him. Mr Zunic began to scuffle with him and took him to the ground. He broke free as the police arrived.
According to the appellant, his shirt was torn from him during this scuffle. He said that he did not see Mr Hendry at this stage or anyone with missing teeth. He said he first saw him after the police had arrived. He could not say how he lost the teeth. The appellant was arrested and taken to the City Watch house where he was questioned.
It may be seen from this brief narrative of the evidence of Mr Hendry and the appellant that their versions of events bear little similarity regarding the events in the toilet and the incident outside the Club. As has been mentioned, the learned Magistrate derived no assistance from the evidence of Mr Zunic or Ms Byron to resolve the factual issues. The appellant’s male friend was not called and I understand his absence from the witness box was satisfactorily explained to the learned Magistrate.
I turn now to the evidence of the two police officers, Constable Westworth and Constable Terlikowski. They were on duty travelling east along Pirie Street when they saw persons standing on the road outside the Club. Constable Terlikowski stopped the vehicle and spoke to Mr Hendry who told him he had been assaulted. There was blood around his mouth. He said it was possible that the appellant was also on the road but that he did not approach the police officers. Constable Westworth left the vehicle and spoke to Mr Hendry who pointed out the appellant as the person who had assaulted him. Constable Westworth told the learned Magistrate that the appellant was about five metres away at this time and a few other persons were nearby standing on the corner. She noticed that Mr Hendry was missing some teeth. She did not conclude that he was intoxicated. She said he was coherent and his speech was not slurred and she did not smell alcohol on his breath. She spoke to him for about 10 minutes.
Constable Westworth told the learned Magistrate that when the appellant was pointed out to her by Mr Hendry, the appellant was standing or sitting near a building. He was yelling, but not at anyone in particular. She then approached the appellant and spoke to him. She cautioned him and arrested him. When he was questioned, the appellant told the police officers that two men assaulted him. He saw them in the toilet and one of them approached him to sell drugs. He refused and left. He was then assaulted. The appellant then told them that one of the men had given drugs to the other in the toilet. He said that he was then pushed into the bar and threatened by a person dressed in black. I assume that person could have been Mr Zunic. He told them of the incident in the street and said that he did not think he hit anyone. He showed his hands to the police officers. Constable Westworth saw no signs of injury.
The following was said during the interview:
“CT,‘How did the shirt get ripped off if you had the jacket on?’
He said,‘Well, I took the jacket off, cos I was pissed off and ra, ra, ra, and that was it and the shirt got ripped off when I was in the scuffle, and that was it.’
CT,‘Why did you take your jacket off?’
He said,‘Because I was pissed off and the guy came at me, I was ready to fight, I was ready to try and lay him out. And that’s when I figured I couldn’t and I just backed up, and I was hoping someone was going jump in front and stop him from coming at me and just say ra, ra, ra and I’d walk off and go home, but that didn’t happen so yeah.’
CT,‘Who ripped your shirt off?’
He said,‘The guy in the black.’
CT,‘Have you ever seen this guy in the black before?’
He said,“Yeah in the toilet.’”
Constable Westworth told the learned Magistrate that when she spoke to the appellant in Pirie Street, he was shouting. He was “fairly worked up” and the police officers had to tell him to calm down. Neither police officer was asked about the state of sobriety of the appellant. It appears from the record of interview that he answered all questions relevantly and appropriately. The same observation must be made about his answers to police when in Pirie Street. There is no reason disclosed in the evidence to conclude that he was significantly affected by alcohol at relevant times.
Both police officers told the learned Magistrate that there were about 20 to 30 persons outside the Club when they arrived. Constable Westworth did not speak to anyone other than Mr Hendry and the appellant. Constable Terlikowski did not speak to any of the bystanders except the friend of the appellant whom I have mentioned and Mr Zunic, both of whom approached him. However, as has been mentioned, the friend did not give evidence and the evidence of Mr Zunic was found by the learned Magistrate to be unsatisfactory.
The learned Magistrate found that there had been an altercation in the toilet between the appellant and Mr Hendry or Mr Zunic. In his reasons for judgment he said he could not make any other findings as to what happened in the toilet. He found that the three men left the toilet and soon after Mr Hendry went to the entrance door of the Club and was immediately struck on the right side of his face by the appellant, causing two teeth to be dislodged. The appellant had removed his jacket and was in a fighting stance soon after Mr Hendry was assaulted. He was behaving aggressively and shouting abuse when the police officers arrived. The learned Magistrate rejected the evidence of the appellant that he was involved in a scuffle with Mr Zunic outside the Club. He found the appellant guilty of the charge.
The grounds of the appeal are that the verdict was unreasonable and against the weight of the evidence, and that the reasons given by the learned Magistrate failed to adequately deal with the issues of the trial.
I have considered all of the evidence before the learned Magistrate. This appeal is an appeal by way of rehearing: see the discussion by Lander J in Police v Cadd (1997) 69 SASR 150 at 189-190 and I have approached the matter on that basis. There was no further evidence led, or any witnesses at the trial recalled upon the hearing of the appeal and so the issues must be resolved by consideration of all of the evidence which was before the learned Magistrate.
It may be accepted that the evidence clearly established that Mr Hendry had been assaulted and suffered actual bodily harm. The issues at the trial were the circumstances of the assault and whether the appellant was the assailant. There was no evidence independent of Mr Hendry which the learned Magistrate found acceptable which confirmed that the appellant was the assailant.
The various complaints made by the appellant on the appeal relate to both grounds of the appeal. I mention them in the order which appears to me to be convenient.
The first matter of complaint is that the learned Magistrate did not make any findings about what happened in the toilet apart from what has already been mentioned. As has been mentioned, according to Mr Hendry, the appellant was aggressive towards him and claimed that he was a security guard. The appellant asserted that Mr Hendry and Mr Zunic were in a cubicle together and were undertaking a transaction which could have been a drug deal and they were aggressive towards him and Mr Zunic was aggressive shortly after they left the toilet.
If the learned Magistrate accepted the evidence of Mr Hendry he could have found that there was no transaction in the cubicle, the two men were not in the cubicle together and that the appellant was aggressive towards Mr Hendry at this time. Such an attitude on the part of the appellant could be a significant circumstance in deciding whether he struck Mr Hendry without warning as he was leaving the Club.
I mention the evidence of Mr Zunic. He said that there was no incident in the toilet shortly before he and Mr Hendry left the club. He said that he did not see the person who later assaulted Mr Hendry in the toilet at this time. He thought that the toilet was nearly full of patrons. He said that he saw the incident when Mr Hendry was assaulted. The assailant was in front of Mr Hendry and struck him in the face. Mr Hendry went to his knees and was looking for his teeth. The assailant was standing with a fighting stance and was yelling abuse. Mr Zunic approached. The appellant ran away. Mr Zunic chased him across the road and up a side street. The appellant then ran back into a police car. In cross- examination he said that he did not see the blow to Mr Hendry. Later in cross-examination Mr Zunic acknowledged that he had consumed a considerable amount of alcohol before the incident outside the Club. He had been drinking before he went to the Club and whilst there he consumed about 20 glasses of whiskey and Coca-Cola. He said that he did not see the blow which struck Mr Hendry but immediately thereafter he saw a man standing in front of Mr Hendry with a boxing stance who, he said, also tried to hit him before he ran away. He said that eventually the man ran into the police car and then spoke to the police. He was the first person to make contact with the police. He denied following the appellant out of the toilet.
Mr Zunic acknowledged that in his statement to the police he said that he and his friends were about to leave the Club when a male person, whom he had not seen before, approached Mr Hendry from behind, walked in front of him and then punched him in the mouth. This statement is inconsistent with his version of events as given in evidence. He said, in evidence, that the assailant did not approach Mr Hendry from behind, otherwise the statement was correct. He said that he did not tell the police that he saw the punch only that the assailant punched Mr Hendry because of his observation of him immediately after the attack, which I have described.
Having carefully considered Mr Zunic’s evidence, it is not difficult to see why the learned Magistrate took an adverse view of him as a witness. He was obviously significantly intoxicated by alcohol at the time of the incident. He could not remember the incident in the toilet. Both Mr Hendry and the appellant gave evidence about the incident but described it differently. It is possible to discern from the transcript aspects of Mr Zunic’s demeanour and manner of giving evidence. He was argumentative and uncooperative at times. It is not possible to reach an independent view about his credibility merely from reading the transcript. However, it may safely be said that there is no reason to suppose that the learned Magistrate misused his position of advantage in seeing and hearing the witnesses, including Mr Zunic.
It is submitted by Mr White, who appeared for the appellant, that there was support for aspects of the appellant’s case to be found in the evidence of Mr Zunic. He contended that Mr Zunic acknowledged that there was an incident in the toilet because he spoke coarsely while greeting a fellow patron. I do not accept that contention. The language used by Mr Zunic is described by some as “lavatory language” and there is no reason to regard it in any other way. His evidence was clear. There was no incident in the toilet. He was not in a cubicle with Mr Hendry. There was no altercation involving the appellant. It is also submitted that both Mr Hendry and Mr Zunic said they had gone into separate cubicles and therefore it is reasonably possible that they were both in the same cubicle, which accords with the appellant’s evidence.
It follows that having reached that conclusion, it may be concluded that it is also reasonably possible that either Mr Hendry or Mr Zunic, or both, was the aggressor. Such a leap in reasoning is not appropriate. There is simply no basis for such conclusions. As has been seen, the evidence of Mr Hendry and the appellant as to what happened in the toilet was diametrically opposed. For some unspecified reason, the learned Magistrate could not make a finding about what occurred in the toilet. He may have not been prepared to make adverse findings against either of them because he did not regard their evidence as reliable. Whatever the reason, he should have stated why he could not make a finding. The consequence is that there is no finding that the appellant was aggressive at this stage. The lack of a finding that Mr Hendry or Mr Zunic was the aggressor does not establish that the appellant was not.
Criticism is also made of the findings of the learned Magistrate set out towards the end of his reasons for judgment. He found that Mr Hendry went into the toilet. The appellant entered and stood near him. There was an exchange of words between the appellant and Mr Hendry or Mr Zunic who was also in the toilets. All three men left. I do not think these findings are inconsistent with his finding that he could not determine “with any degree of certainty precisely what happened” in the toilet. The only sensible conclusion to be drawn from the evidence of Mr Hendry and the appellant is that they were in the toilet at the same time. The appellant said that Mr Zunic was in the toilet at the same time as Mr Hendry, who accepted that it was possible. This evidence establishes that all three men were in the toilet at the same time.
The appellant also complains that the learned Magistrate did not correctly apply the onus of proof which he acknowledged rested upon the prosecution. It is submitted that because the learned Magistrate referred to Mr Hendry as “the victim of the alleged offence” and found the appellant’s “version of events, certainly from the time he left the Club improbable and inconsistent with his own record of interview”, the onus of proof was not correctly applied.
I do not think there can be any doubt that Mr Hendry was the victim in the sense that the learned Magistrate used that expression. He was struck in the mouth as he left the Club. He was injured. There was no warning of the attack. There was no evidential basis for consideration of self-defence. There is no substance in this complaint. As to the second matter, the learned Magistrate said:
“I found the defendant’s version of events, certainly from the time he left the nightclub improbable and inconsistent with his own record of interview, Mr Hendry’s evidence and was not supported in any significant way by the evidence of Mr Zunic. In evidence he denied striking Mr Hendry but when interviewed on the night he could go no further than saying he could not recall hitting anyone. However, in his record of interview he described his actions as ‘shaping up’ and he was ‘ready to lay him out’. To this extent his answers were consistent with Mr Hendry’s evidence that after he was struck he saw the defendant immediately to his side ‘shaping up’.
For these reasons, on the critical issue of what happened outside Club 110 I do not accept the defendant’s evidence.”
It is submitted that even if the appellant’s version of events was improbable, he may still be acquitted unless his evidence is rejected beyond reasonable doubt. I do not think that proposition is correct. The appellant could be acquitted if his evidence was totally rejected unless other evidence proved each element of the offence beyond reasonable doubt. An example is where an accused alleges an alibi which is rejected. There is no evidence from him about the circumstances of the alleged crime. Unless the evidence in the prosecution case does prove each element of the charge beyond reasonable doubt, the accused must be found not guilty. The same observation must be made when an accused remains silent.

As can be seen, the learned Magistrate made these observations in the context of assessing the reliability of the evidence of the appellant and he regarded them as a reason for rejecting his evidence as to the incident outside the Club. I do not think that the learned Magistrate reversed the onus of proof. Having rejected the appellant’s version of what happened and the evidence of Mr Zunic and Ms Byron, he was left with the evidence of Mr Hendry and the police officers, and the undisputed facts that Mr Hendry was not injured before he left the Club, he was injured shortly thereafter and the appellant was nearby and aggressive. Other matters which tended to confirm Mr Hendry’s evidence in important respects is that he was the first person to approach the police vehicle. The evidence of the two police officers is clear about that matter. Also, he identified the appellant to the police officers.
The evidence of Mr Hendry was accepted which made a finding of guilt inevitable.
The appellant also complains about the approach of the learned Magistrate to the evidence of identification of the appellant as the assailant. It is submitted by the appellant that Mr Hendry’s identification of the offender was based upon the presence of the appellant with the police, the brief sighting of the assailant outside the Club and a brief encounter with the appellant in the toilet at the Club. It is further submitted that Mr Hendry’s identification of the appellant had to be assessed in the light of Mr Hendry’s level of intoxication and his acknowledgement that his recall of events after he was injured was “probably a little hazy”. As to this last matter, Mr Hendry was being cross-examined about matters of detail. He was asked about the location of the police officers and where he was standing when he made his statement outside the Club, which he answered precisely. He was asked whether the police car was parked in a side street. He replied that he did not think so and went on to say:
“You must understand I had just had a huge shock and my mouth is all bloodied and I have no teeth, is (sic) the chain of events, after that incident are probably a little hazy.”
This evidence and his other evidence does not suggest any difficulty in recollecting significant matters.
As to the first of these matters, the evidence of Mr Hendry was that he was with Constable Westworth when he pointed out to her the appellant as the assailant. The appellant was not with a police officer at that time. According to Mr Hendry, he was sitting down and on a street corner. There was a girl and a man with or near him.
It is submitted that in pointing out the appellant to Constable Westworth, Mr Hendry was identifying the appellant as the assailant and the learned Magistrate erred in not warning himself about weaknesses in this evidence of identification: see Domican v The Queen (1991-1992) 173 CLR 555. The evidence of Mr Hendry in pointing out the appellant as the assailant to Constable Westworth is not identification evidence of the usual type discussed in the cases, including Domican. Usually identification evidence is where a witness identifies a person not previously known to the witness and is not familiar with the appearance of the person being identified.
In the present case, Mr Hendry became familiar with the appearance of the appellant during the altercation in the toilet. He told the learned Magistrate that the person who attacked him was that person. On the evidence of both Mr Hendry and the appellant, there was an altercation in the toilet and the appellant acknowledged that he was in the toilet at the same time as Mr Hendry. A more accurate description of the evidence is evidence of recognition.
On the version of events accepted by the learned Magistrate, the appellant behaved aggressively and abusively towards Mr Hendry in the toilet.
Immediately after Mr Hendry was struck, he saw the appellant standing in front of him with an aggressive stance and heard him make a threat. He said he then ran away. There is no basis in the evidence for the suggestion that someone other than the person who Mr Hendry saw in front of him was the assailant. It was submitted that as Mr Hendry said that the blow came from his side, the assailant may have been someone else. However, it must be remembered that Mr Hendry was relating his impression having been violently and suddenly attacked.
Of course, the learned Magistrate was obliged to direct himself relevantly to the circumstances revealed by the evidence which he found acceptable. However, in my view, he was not required, in the circumstances, to warn himself about the inherent dangers of accepting evidence of identification as would be the case if Mr Hendry was not familiar with the appearance of the assailant before the incident occurred.
The reasons for judgment of the learned Magistrate are relatively brief. Consequently, it has been necessary to consider carefully all of the evidence at the trial to see if his conclusions are soundly based. He had the advantage of seeing and hearing the witnesses and there is nothing in the evidence to suggest that his conclusions about the credibility and reliability of the witnesses are incorrect. He accepted the evidence of Mr Hendry and rejected the evidence of the appellant. I can detect no error in his reaching those conclusions. The evidence of Mr Hendry and the police officers support the conclusions.
The next complaint is that the analysis of the record of interview by the learned Magistrate was unfair to the appellant. I need not repeat this submission in detail. The effect of it is that when viewed as a whole the appellant gave an account of the incident and the earlier events which is consistent with his evidence that he believed Mr Hendry and Mr Zunic were dealing with drugs in the cubicle in the toilet, that Mr Zunic pushed or bumped him inside the Club, the appellant left the Club before the others, that he was involved in a scuffle and that he told the police there was no injury to his hands and showed his hands to them.
I do not think the learned Magistrate’s treatment of the record of interview was unfair to the appellant. The learned Magistrate set out in his reasons for judgment the passage of the record of interview in which the appellant’s case is recorded. He also set out the appellant’s answers to the police whereby he acknowledged that he was aggressive, angry and ready to fight. He was referring to Mr Zunic, but his general state of mind and aggressive attitude are relevant considerations.
I reject all of these complaints. In my view, the finding of guilt is supported by the evidence. The learned Magistrate was entitled to accept the evidence of Mr Hendry as to the circumstances of the assault and to reject the evidence of the appellant. Neither ground of appeal is established.
The appeal is dismissed.

[2004] SASC 25

30 January 2004