Smythe v Duncan
[2003] WASCA 269
•30 OCTOBER 2003
SMYTHE -v- DUNCAN [2003] WASCA 269
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 269 | |
| Case No: | SJA:1064/2003 | 30 OCTOBER 2003 | |
| Coram: | ROBERTS-SMITH J | 30/10/03 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | PATRICK MAURICE SMYTHE PETER ROBERT DUNCAN |
Catchwords: | Appeal Justices Criminal law and procedure Assault occasioning bodily harm Onus and burden of proof "Difficult" for appellant to explain "obvious inference" Whether reversal of onus of proof Finding that appellant's account not consistent with his failure to complain to police that complainant assaulted him Reliance on fact complainant made complaint to police as showing consistency Whether permissible Turns on own facts |
Legislation: | Justices Act 1902 (WA), s 199(1)(b) |
Case References: | Petty v R (1991) 173 CLR 95 Lowndes v The Queen (1999) 195 CLR 6654 M v The Queen (1994) 181 CLR 487 R v Nevermann (1989) 43 A Crim R 347 R v Tognini & Anor (2000) 22 WAR 291 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SMYTHE -v- DUNCAN [2003] WASCA 269 CORAM : ROBERTS-SMITH J HEARD : 30 OCTOBER 2003 DELIVERED : 30 OCTOBER 2003 FILE NO/S : SJA 1064 of 2003
MATTER : The Justices Act 1902 BETWEEN : PATRICK MAURICE SMYTHE
- Appellant
AND
PETER ROBERT DUNCAN
Respondent
Catchwords:
Appeal - Justices - Criminal law and procedure - Assault occasioning bodily harm - Onus and burden of proof - "Difficult" for appellant to explain "obvious inference" - Whether reversal of onus of proof - Finding that appellant's account not consistent with his failure to complain to police that complainant assaulted him - Reliance on fact complainant made complaint to police as showing consistency - Whether permissible - Turns on own facts
Legislation:
Justices Act 1902 (WA), s 199(1)(b)
Result:
Appeal allowed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr R G W Bayly
Respondent : Ms L J Keane
Solicitors:
Appellant : Bayly & O'Brien
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Petty v R (1991) 173 CLR 95
Case(s) also cited:
Lowndes v The Queen (1999) 195 CLR 6654
M v The Queen (1994) 181 CLR 487
R v Nevermann (1989) 43 A Crim R 347
R v Tognini & Anor (2000) 22 WAR 291
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1 ROBERTS-SMITH J: This is an appeal from a decision of Mr Malone SM in the Court of Petty Sessions at Perth on 26 May 2003, whereby the learned Magistrate convicted the appellant of unlawfully assaulting the complainant, Donald George Hyland, on 24 November 2001 and thereby doing him bodily harm, contrary to s 317(1) of the Criminal Code. There is also an appeal against a sentence imposed by his Worship, which was a fine of $1000. It is said that his Worship erred in not making a spent conviction order. Leave to appeal was given by Miller J on 29 July 2003.
2 The charge arose out of an incident in Hyland's office on 24 November 2001. He and the appellant gave starkly conflicting accounts of what had occurred. As was recognised by all concerned, the case turned entirely on the credibility of the two protagonists. To understand the ground of appeal against conviction, it is necessary first to outline the evidence and his Worship's reasons for decision.
3 The evidence essentially, in short compass, began with some limited medical evidence from Dr Christopher Denz, a general practitioner, together with the tender of some photographs of Hyland. The injuries suffered by the complainant were essentially bruising and swelling and tenderness over the right cheek and pain in essentially the right thigh area. Subsequently more bruising became apparent and there was bruising on the chest below the left nipple and quite a large bruise over the left triceps; that is to say, the back of the arm. From the photographs it appears that the complainant suffered bruising and some marking to the right side of his face by the cheek, under the right eye and to the front of the nose. The bruising is more apparent around the orbit of the right eye in one of the photographs.
4 The complainant's evidence was essentially that on the day in question he was in his office at Unit 5, 158 William Street in Perth. He is the proprietor of a business and was at the time in the business of what he described as workstay hostels and employers in Western Australia. He is a director of companies involved in businesses of this description. It seems that essentially the business involves coordination services for workstay hostels and employers. One of the businesses is a property in Donnybrook and that apparently is a property which involved some connection with the appellant's business in the sense that it was a competitor.
5 On 24 November 2001 the complainant, as I say, was in his office. According to his evidence before the learned Magistrate, he noticed
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- somebody walk up to the reception desk at which he was working but did not recognise the person initially and then recognised him as the appellant, being somebody he knew. He says that the appellant threw something on his desk and he asked words to the effect of "What's this?" The document was an advertising poster. According to the complainant, he said that to the appellant, who then said something along the lines that it was hurting or killing his business and, as the complainant put it, said some other things in a threatening way.
6 He told the Magistrate that he then stood up and suggested to the appellant that he should leave. He walked around from behind the reception desk table. He said he felt threatened at the time, and that as he came around the desk and was making his way to the door, the appellant came towards him and stopped him by pushing him in the chest. The complainant said he told the appellant something like "That's assault." There was some further exchange and the complainant, according to his evidence, then went around the appellant, outside the room and down the corridor to the caretaker's office.
7 The caretaker was not there and the complainant could not see anyone else. He returned to his office and the appellant was still there. According to the complainant, he went around to the appellant, raised his voice and ordered him to leave. He said the appellant took some steps towards the door and then stopped and he ordered him again to leave and went to push him in the chest, at which point the complainant said the appellant assaulted him.
8 He made it clear both in his evidence-in-chief and cross-examination that he did not actually push the appellant, but certainly intended to do so and had moved to do that at the point at which the appellant, on his description, assaulted him by a flurry of punches to his face which knocked him back into the furniture, mainly comprising of a brochure rack and some partitioning which gave way and collapsed under the force. The complainant found himself lying amongst the furniture. He said that the appellant then disappeared, that he got up and went into the corridor and saw the appellant standing at the lift slightly along the corridor. He said that he then went into another office where there were people and asked them to help him. A young man went with him and saw the appellant who was still standing by the lift at that stage. The complainant said at that point he noticed he had blood on his face.
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9 Without developing it to any extent, the effect of the complainant's evidence about the document which had been shown to him was that it was a poster which he had put together and distributed to the public and which he ultimately admitted had in some apparently significant way reflected what had been on the appellant's own poster. He admitted that he plagiarised from the appellant's poster.
10 In cross-examination it was put to the complainant that the appellant had not punched him at all, but rather the situation was that what led to the skirmish was that having first left the room, the complainant then returned to it and took the appellant over the shoulder from behind, putting him in a headlock. The complainant denied that adamantly. He did, however, agree that he had plagiarised the appellant's work on the flier or poster and that the appellant had said to him when he first entered the office that it was hurting his business.
11 He said that when the appellant threatened him, he stood up and asked the appellant to leave. He denied the appellant said to him anything along the lines of wanting his undertaking that the complainant would not use his material.
12 Again it was put to him that he grabbed the appellant from behind over the shoulder and he firmly denied that had occurred. It was suggested to him that both of them then went careering into the brochure rack and again he denied that. It was put to him that the appellant tried to get out from the headlock and in the course of that the complainant banged into the wall leading down to the doorway. Again the complainant denied that assertion. He said he was not angry. He was more afraid of the appellant than anything. His real and only concern was to have the appellant leave the office.
13 There was evidence given by a police officer who attended at the premises on the day. His testimony was that he and his partner located the complainant and two other males in a first floor office, at which point the complainant said that the appellant had assaulted him. The officers could see that the complainant had sustained injuries to his face. They then located the appellant in the lobby and spoke briefly to him. According to Constable Benson, the appellant stated that he wished to make a complaint in relation to being assaulted by the complainant, but at that time did not want to make any further comment until he had obtained legal advice.
14 Constable Peter Duncan in his evidence said that he interviewed the appellant on 19 February, but the appellant declined to make any
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- further comment. He was asked in chief whether the appellant had ever approached his police station, that being the Donnybrook police station, to file a complaint at being assaulted and he said not to his knowledge. There was no cross-examination.
15 The evidence of the appellant was that he is a professional social worker and that on the day in question was dropping posters off at various outlets in the Perth area in an attempt to encourage young holiday-makers to go down to the Donnybrook region to work. That was in the course of his own private business which he was conducting at that time. He owned a hostel in Donnybrook which he used to accommodate people for whom he found employment in the Donnybrook region, fruit picking on a seasonal basis.
16 He said that he had gone to the complainant's office on 24 November 2001 because in the course of distributing his posters that afternoon he had come across posters of the complainant's which had obviously plagiarised the material that he had used to market his business.
17 He said that when he arrived at the office, the complainant was sitting behind his counter at the desk, that he, the appellant, took two posters out of his backpack, placed them on the desk in front of the complainant and asked whether he had any idea who was using that material to advertise the business. He said that the complainant was not very forthcoming and after a little bit of discussion did acknowledge that the particular poster or one very similar to it had come from his office, although he did not identify himself as the person responsible for doing it.
18 He then testified that he said to the complainant that he thought it was unethical and immoral that Hyland should be undertaking such an exercise and he did ask him to refrain from utilising the appellant's material in future. He said that at that stage the complainant jumped up out of his chair, saying, "I want you to leave," or, "Get out," and came rushing around to the appellant's side of the counter.
19 He said the complainant came around in a fairly threatening way and as he did so, the appellant turned away from the counter to face him. The appellant said he thought the complainant was going to make impact with him, but about a stride before he reached the appellant, the complainant swerved and kept going out the door, saying as he went past that he was going to get a witness.
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20 The appellant said that he waited for some time and as the complainant did not return, he went over to the brochure rack and began reading information on the brochures. He said the next thing he knew he was being cannoned forward into the brochure rack with an impact of such force that it knocked the rack and whatever else it was attached to off its mounting and it crashed to the floor. He said the next sensation he had was that he was wrapped in a headlock and there was a struggle which ultimately led towards the door area in the office which they crashed into before he was able to break himself free from the headlock.
21 He said when that happened, he saw the complainant Hyland place his head in his hand and observed there was blood on his face. He said the complainant immediately went to the other side of the counter and rang a person he came subsequently to know as Rory Cusack who arrived with another male.
22 The appellant denied punching the complainant in the face. He said after the arrival of Cusack and the other man, he went and sat in the foyer to await the arrival of the police. He said when they arrived he went up the stairs and introduced himself as being one of the people involved in the scuffle. The police officers told him to wait where he was and they went in to talk to the complainant and Mr Cusack. He said they were in there for a long time. One of them came out on at least one occasion to ask him some questions and then went back in.
23 The appellant said that he recalled that they then both came out, said that was basically it and led him to believe they were not pursuing any charges because they had two different stories. He said he walked down the stairs with the two policemen at that time and they encouraged him to come down to the West Perth or Leederville police station and make a statement, to which he responded that he was happy to do that, but would just like to talk to his solicitor first.
24 The appellant was extensively cross-examined but essentially adhered to the account he had given in his evidence-in-chief. He agreed that he had gone to the premises that afternoon wanting to confront the complainant about the use of the promotional material. He said he wanted an undertaking from the complainant to cease using it and the complainant would not give that. It was put to him that he was angry about that, but he would not agree with that, although he conceded it was something which certainly needed discussion. He denied that he was the aggressor and maintained that it was the complainant who took
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- umbrage at whatever was said and came flying around the counter in a threatening and intimidating manner.
25 In substance, he said it was his intention to obtain an undertaking from the complainant that the complainant would cease using his promotional material in the future.
26 He was then in cross-examination referred to another document, one which he agreed he had produced in about January 2002; that is to say, some time later. That was a document indicating that people, as he put it, needed to be aware of particular businesses and individuals. The particular document read in part, that being the complainant's business:
"Beware Workstay Perth
on the first floor at the corner of William and Wellington Streets is a backyard operation without official approval to operate. It is run by a two-bit hustler who cannot be believed or trusted. He operates through smear and innuendo and is totally discredited as a bankrupt and a con artist. Use at your peril.
Signed 10 Disgruntled Backpackers."
27 He admitted that he developed the content of that poster. He agreed that he had no basis for saying that the complainant operated without official approval. He said that so far as he was concerned, he was just referring to his own experience of the complainant's immorality and his lack of ethics in plagiarising the appellant's material.
28 He was cross-examined about what he had said to the police on their arrival. It was put to him that he had told the first police officer that he wanted to put a complaint in on Hyland and he agreed that was what he said. It was then put to him that he never went to the Donnybrook police station and made a complaint and he agreed that he had not.
29 A little later he said that he did not file a complaint because he did not operate that way. His solicitor did not advise him to file a complaint. His lawyer did not say either file one or not. He simply gave no advice about that at all.
30 Addresses by counsel for the appellant and by the police prosecutor concluded before lunch on 26 May 2003 and his Worship
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- gave his reasons for decision after the lunchtime adjournment. They run to some seven pages of transcript beginning at AB73.
31 After reciting the charge and making some introductory remarks, his Worship noted that in substance he was dealing with a case of conflict of evidence and the essential question involved an assessment of the credibility of the complainant and the appellant.
32 As to that, his Worship said that it was of particular importance that in approaching credibility the appellant had nothing to prove at all and that at all stages it was necessary for the prosecution to satisfy the Court beyond reasonable doubt as to each element of the offence and to negative any defences that may be available on the evidence so, his Worship reiterated, the appellant had nothing to prove at all.
33 His Worship then made some further remarks generally about the assessment of the evidence and returned to the question of credibility. He acknowledged expressly that it was not a matter of simply choosing one or other of the two versions which had been presented to him on the basis that one must be telling the truth and one must be lying. His Worship correctly said that was not the question at all but it was necessary for him to look at the matter on the basis that the prosecution had to prove the charge.
34 It was after having made those remarks that his Worship turned to what he described as a critique of the complainant's evidence. He expressed the view that the evidence given by the complainant did not have anything particularly incredible about it, nor anything particularly unusual. As his Worship perceived it, the complainant's evidence appeared to be an account of fairly credible events.
35 He acknowledged aspects of the cross-examination of the complainant as having demonstrated some inconsistency in the description given in his evidence-in-chief as against that which had been earlier given to the police but the inconsistency was not such that his Worship thought gave reason to create any doubt about the credibility of the evidence generally.
36 He noted that the complainant admitted plagiarising work of the appellant and said that from that point of view the complainant's ethics were impeachable but again did not think that was of any particular significance in the final assessment. He noted that the photographic evidence was not inconsistent with the account that the complainant had given. He acknowledged that it is very difficult sometimes to draw
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- conclusions from the appearance of injuries as to the way in which they may have been caused, but repeated that having considered the evidence he thought the photographs were not inconsistent with what the complainant had said. At that point he made the following comment:
"And whilst I'm on the subject of consistency, I certainly think that can be the observation made of Mr Hyland in his activities in terms of reporting the matter to the police at the very early time and going forward and making the complaint to police and those sorts of things. Again not necessarily decisive but it does show consistency of conduct, and that's something that perhaps can't be said to the same degree of course of Mr Smythe."
38 He then turned to conduct a similar "critique" (his Worship's word) of the appellant's evidence. At AB75 his Worship said:
"It was always going to be the case of course and put to him fairly and squarely that Mr Smythe was going to have difficulty explaining away the obvious inference that he was the aggressor on this day. He went unannounced to the office of Mr Hyland and had a motive to be annoyed which was of course the alleged use of, in a photocopied sense at least, the artwork on one of Mr Smythe's posters. Now, as I say, it's difficult at the end of the day for Mr Smythe to resist the obvious interest (sic inference) that he went along there quite cranky about the whole exercise. Mr Smythe insisted that he did have control and all that he was after was an undertaking, but as I say, difficult really with that situation."
39 His Worship then referred to the evidence about what the appellant had done with the later poster, which his Worship seemed to think raised serious questions as to the appellant's proportion and restraint. He expressly observed that the appellant was not before him to answer for his behaviour in respect of the poster but he mentioned it because it did put a question mark over the proportion and restraint shown by the appellant and made it a little bit easier for his Worship to characterise that sort of behaviour perhaps occurring on 24 November - a lack of proportion and a lack of restraint.
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40 At that point his Worship turned to consider the actual account given by the complainant. It is obvious that he was approaching this exercise in the same way he had approached his "critique" of the evidence of the complainant. He said that to his way of thinking, the appellant had some more incredible aspects than the way the complainant had told he story. He then recounted in brief terms what the appellant had said. He commented that it was very difficult to understand from the "usual versus the unusual" why the complainant would re-enter the office by going in without any notice at all and grabbing the appellant in a headlock. That, he thought in the context, was an unusual aspect of the account given by the appellant.
41 He then turned to the injuries suffered by the complainant. He suggested that the way the appellant said they happened gave rise to two facets. His Worship continued at AB77:
"… first of all, Mr Smythe, must have known from moment one that he had to explain the fact that Mr Hyland had injuries. They were there for all the world to see, and of course the police officers observed them and there was blood on Mr Hyland's face, so there was no getting away from Mr Smythe's point of view with having to explain the injuries in some way, and of course his version is that they happened I the staggering around associated with the - - with the hold that Mr Hyland had and when they crashed into the wall."
42 His Worship said he was not saying that was not possible, but in effect expressed the view that he preferred the account given by the complainant as being more likely and more sensible; that is to say, more in accord with what commonsense would suggest.
43 His Worship had difficulty in accepting the account given by the appellant, which he summarised in part as being that the appellant managed to be involved in a struggle and not be injured himself but that the complainant ended up with injuries by crashing his face into something when he was actually being the aggressor towards the appellant.
44 His Worship said that although it was not decisive, he thought the account given by, the complainant, of how he got the injuries was more credible. His Worship then said again at AB77:
"As far as consistency, I made this point in respect of Mr Hyland. Mr Smythe had supposedly, on his account,
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- reason to complain to the police about an assault perpetrated on him, suggested that he was going to do that and never did. I certainly take counsel's point that there are areas of concern about right to silence and those sorts of things, but when one measures it certainly there was consistency of conduct as far as Mr Hyland was concerned making the complaint to the police and following it through. There wasn't that same consistency associated with Mr Smythe."
45 Then at AB78 his Worship, summarising, said that when it came down to it:
"… I come to the conclusion that I think Mr Hyland is to be believed. Of course it's the situation, as I say, Mr Smythe had nothing to prove and it isn't necessary for me to decide between the two stories, but having heard from Mr Hyland I'm not left at the end of my consideration with any reasonable doubt that he is telling the truth."
46 Concluding his summary of the assessment of credibility, his Worship said that in weighing up the testimony of the appellant, it had so many inconsistencies in a broad sense or aspects that made it not believable, that he was in fact unable to accept it, but he took a different view about the evidence of the complainant. He accepted what the complainant had to say and did not accept what the appellant had to say.
47 Against that background his Worship made findings which it is for present purposes not necessary for me to set out, nor to detail in any way.
48 There is one ground of appeal against conviction. It is that the learned Magistrate erred in law in taking into account irrelevant considerations in making his decision; namely that:
(a) the appellant was going to have difficulty explaining away the obvious inferences that he was the aggressor
(b) the appellant's conduct was not consistent with innocence because he made no complaint to the police, and
(c) the conduct of Mr Hyland was consistent because he made complaint to the police.
49 As to ground 1(a), the argument put by Mr Bayly on behalf of the appellant is in substance that in concluding at AB75 that the appellant
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- was going to have difficulty explaining away the obvious inference that he was the aggressor, the learned Magistrate was placing an onus upon the accused to prove his innocence and that was an error of law because an accused person is never obliged to explain away an inference and there is never an obligation upon an accused to prove anything.
50 The same point was made in relation to what the learned Magistrate said about the fact that the complainant had injuries at AB77.
51 Mr Bayly submits that the error is clear notwithstanding the remarks made by the learned Magistrate which did correctly set out the onus and burden of proof. It is apparent, he says, because the learned Magistrate first made the comment in relation to the appellant before making an assessment of the evidence. As Mr Bayly put it, it was before even making an assessment of the evidence of the appellant that his Worship took the position there was some obligation on the appellant to counter the inference that he was the aggressor.
52 He submitted that it was necessary for his Worship to look at the evidence as a whole and determine whether or not, looked at in that way, the inferences necessary to support the crown case could properly be drawn beyond reasonable doubt and that it was wrong to look at the prosecution case first and conclude that gave rise to an inference adverse to the accused and to then look at the evidence of the accused to see whether or not he had displaced or disproved the inference.
53 Ms Keane for the respondent submits that the comments made by the learned Magistrate were appropriate. The inference to which he referred was properly open, not just from the complainant's testimony but from the evidence as a whole. She submitted that the appellant's own evidence as to his reason for going there supported the inference that he was the aggressor, as did the other evidence of the surrounding circumstances and the injuries suffered by the complainant.
54 As argued, this ground was somewhat expanded to include the assertion that in saying the appellant was going to have difficulty explaining away the obvious inference that he was the aggressor and that from the outset he must have known that he had to explain the fact that Hyland had injuries, the learned Magistrate was reversing the onus of proof. The argument was put essentially on that basis rather than that the learned Magistrate had taken into account an irrelevant consideration.
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55 It is fundamental law that subject only to specific and limited statutory defences an accused or defendant never has to prove anything. His Worship expressly and correctly stated the law relating to the onus and burden of proof several times in quite clear terms. I have already referred to them and they appear particularly at AB73, 74 and 78.
56 The particular impugned statements of his Worship must be looked at as a whole and in context. The first is that which appears at AB75 and 76. I think the gravamen of it is reflected at the top of AB76 where his Worship says:
"It's difficult at the end of the day for Mr Smythe to resist the obvious interest … (sic inference) that he went along there quite cranky about the whole exercise."
57 I accept that in this area his Worship's reasons are somewhat unfortunately expressed. Looked at in isolation they were capable of being construed in the manner now advanced on behalf of the appellant. However, perfect felicity of expression cannot always be expected of a judicial officer delivering ex tempore reasons in a busy Court. The question must always be whether what he said reflects actual error. Looking at it in that way I am not persuaded that his Worship was placing any onus upon the appellant to explain.
58 The submission by the appellant that an accused is never obliged to explain away an inference as that places a burden of proof upon the accused may be accepted, but where the prosecution evidence gives rise to the relevant inference and it is one the tribunal could be satisfied of beyond reasonable doubt in the absence of any further evidence, then the consequence of an accused not adducing other evidence must inevitably leave that inference as the only one available to be drawn.
59 To recognise that practical situation is not to reverse the onus of proof. Furthermore, here it seems to me that what his Worship was saying was that the evidence as a whole, including that of the appellant, gave rise to an obvious inference that he went to Hyland's office quite cranky about the plagiarism of his advertising posters and that he was the aggressor. All the learned Magistrate was saying in the context of an assessment of credibility was that at the end of the day, that is to say on a consideration of the prosecution evidence and that of the appellant himself, it would be difficult to resist the obvious inference that he went to Hyland's office cranky and as the aggressor.
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60 It was open on the evidence for his Worship to take that view and although it would have been better phrased differently, given his Worship's obvious and clearly stated appreciation of where the onus of proof properly lay I do not think what his Worship said reflects actual error.
61 The same conclusions apply in respect of what his Worship said about the complainant's injuries. The critical aspect of his Worship's reasons in that regard, it seems to me, is the portion of the reasons which I have quoted from AB77, that in a practical sense it was obvious to all that the complainant had injuries and there needed to be some explanation for those consistent with the account given by the appellant. However, the account so given was not consistent with those injuries. It was in that context that, as his Worship said, he found the complainant's explanation of how he came to get those injuries somewhat more credible.
62 I turn to the second ground of appeal against conviction, which is the learned Magistrate's conclusion that the appellant's conduct was not consistent with innocence because he made no complaint to police. The appellant submits in relation to that that his Worship was clearly drawing an inference adverse to the appellant because he chose not to speak to police about the matter.
63 The first point I would note is that in fact the evidence was that the appellant did complain to the police at the time that the complainant had assaulted him but said that before he said anything further about it he wanted to speak to his lawyer.
64 Counsel for the appellant relies upon the proposition that an accused person is entitled to remain silent when questioned by police. There is no obligation upon him or her to speak to the police and any failure to do so is not evidence which can be used against the accused. Mr Bayly relies upon Petty v R (1991) 173 CLR 95 and particularly at page 99. The judgment of Mason CJ and Deane, Toohey and McHugh JJ at that page commences with this passage:
"A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in
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- the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless."
65 The exercise in which his Worship was engaged in at the time was, as Ms Keane points out, one of evaluating a number of factors and considerations for the purpose of the assessment of credibility of the protagonists. Ms Keane says that that was a proper and appropriate exercise.
66 But no challenge is made to the process. The point is whether his Worship could use the fact the appellant made no formal complaint to the police to draw an inference against him, as he did.
67 As I have already observed, the appellant did make a complaint at the time. His Worship must necessarily be referring to the fact that the appellant did not subsequently make a formal complaint to the police. It is necessary to think what that would have involved. It would undoubtedly have involved the appellant giving to the police in the form of a statement an explanation of the events, in essence, in the way in which he described them in his evidence before the learned Magistrate. That would ex hypothesi have been pertinent information about the occurrence of an offence, the identity of the participants and the roles which they played, to use the terminology of the judgment of the majority in Petty. It seems to me that although no complaint can be made about the process engaged in by his Worship, his reliance upon the fact that the appellant did not make a formal complaint to the police officers is one which does necessarily infringe the rule articulated in that judgment. I have come, on that basis, to the conclusion that this was therefore an impermissible use of that evidence and I would uphold this ground.
68 I turn now to the third ground, that the learned Magistrate erred in acting on the basis that the conduct of the complainant in making a complaint to the police was consistent with his evidence and in that way buttressed his credibility. Mr Bayly submits that the complainant's complaint is either hearsay, if it comes from the police officers, or a prior consistent statement, if it comes from the complainant, and that it is inadmissible on both bases and should not have been used for any purpose.
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69 It has to be said that the fact that Hyland made a complaint to the police is not logically probative of the appellant's guilt. It cannot therefore be relevant and it would not be admissible for that purpose. It could only go to consistency, that is to say, to buttress his credibility, but there it runs into the problem of being simply a prior consistent statement and it is again trite law that, subject to certain exceptions which do not apply here (such as recent invention or res gestae or a complaint in a sexual case), such statements are not admissible. No objection was taken to this evidence but that seems to me not to be an answer to the fact that the learned Magistrate relied upon it. Again I would uphold this ground of appeal on that basis.
70 That brings me then to a consideration of what the outcome of this appeal should be. Section 199(1)(b) of the Justices Act 1902 provides:
"Upon the hearing of an appeal, the Court may do one or more of the following –
…
(b) dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant if it considers that no substantial miscarriage of justice has occurred."
71 It seems to me that given the circumstances of this case as it was before the learned Magistrate, it would be impossible to come to the conclusion that there was no substantial miscarriage of justice. The case turned wholly on the credibility of the complainant and the appellant, and the considerations to which the grounds I have upheld go, are directed entirely to his Worship's assessment of credibility. Although one might well think it likely that his Worship may well have come to the same conclusion, quite apart from the fact that the complainant made a complaint to the police and the appellant did not, nonetheless given the importance of credibility to the outcome of the prosecution, it seems to me one cannot necessarily say that, and if that be so, then it cannot be said that there was no substantial miscarriage of justice. I would accordingly uphold the appeal on those two grounds. That being so, the appeal against sentence falls away.
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