Somuncu v Police - [2010] SASC 307

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SOMUNCU v POLICE
[2010] SASC 307
Judgment of The Honourable Chief Justice Doyle
4 November 2010
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - INJURY OR DAMAGE TO PROPERTY - EVIDENCE AND PROCEDURE
CRIMINAL LAW - PROCEDURE - WITNESSES - OTHER MATTERS
Appeal against conviction - appellant convicted of property damage - whether Magistrate erred in finding prosecution witnesses to be truthful witnesses - whether there were weaknesses and inconsistencies in the witnesses' evidence that told against their credibility - whether deficiencies in Magistrate's reasons - open to Magistrate to make findings that she did - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 85(3), referred to.

SOMUNCU v POLICE
[2010] SASC 307
Magistrates Appeal: Criminal

DOYLE CJ: Mr Somuncu and Mr Ildirar were jointly charged on Information with two counts of property damage contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (SA).
The charges were tried before a Magistrate. She found Mr Somuncu guilty on both counts. She found Mr Ildirar not guilty on both counts.
Mr Somuncu has appealed. There are several grounds of appeal. In submissions Mr M Mead, counsel for Mr Somuncu, argued one central point. It is that the Magistrate erred in finding the three principal prosecution witnesses to be truthful witnesses, and in convicting on the basis of their evidence.
The trial took place on 20 May 2010 and 24 June 2010. The Magistrate gave oral reasons at the conclusion of the trial on 24 June.
Mr Mead submits that there were weaknesses and inconsistencies in their evidence, and certain other matters told against their credibility. He pointed also to some deficiencies in the Magistrate’s reasons. He submits that the matters relied on by him were, taken together, of such force that it was not open to the Magistrate to accept the three principal prosecution witnesses as honest. If they were honest, he did not dispute that the Magistrate was entitled to accept them as reliable, and to make a finding of guilt on the basis of their evidence.
Facts
There is either no dispute about most of the facts, or at least no challenge to most of the findings about what happened at the time in question. The issue at trial and on appeal is whether Mr Somuncu was involved in the events in question.
The events occurred in Berri and Lyrup on the night of 21 November 2009 and in the early hours of the morning of 22 November 2009.
The three principal witnesses for the prosecution were Mr Lippis, Mr Westley and Mr Wood. They and some others (partners or friends) were drinking together at a disco in Berri. Mr Somuncu and Mr Ildirar were there also. During the night there was some kind of dispute between Mr Lippis, the complainant on count one, and Mr Ildirar. Mr Lippis and the rest of his group left the disco between about 2.30 am and 3.15 am.
They went to Mr Lippis’ home at Lyrup. There were six of them in all. Mr Lippis, Mr Westley and Mr Wood all said they had seen Mr Somuncu around town, but had not met him before that night.
The group, with the exception of two of the women who had gone to sleep in the house on the property, were in a large shed or garage. It had a roller door at the front that was raised and lowered electronically. The door faced the street. There were chairs and a lounge and a bar in the shed. The four people present were drinking and talking.
About 3.45 am they heard the sound of motor cars. Mr Lippis raised the roller door. How far up it went was disputed. That is relevant to the observations he made.
But there is no challenge to the Magistrate’s finding that three motor cars stopped outside. Several people got out. It was clear that they were not in a friendly mood, and Mr Lippis caused the roller door to go down.
The people outside the shed then struck or kicked the roller door forcibly. The force was enough to push it off its hinges or support. Damage was done to a motor car parked at the house, and the front window of the house was smashed. The people concerned left after a short time, the police were called and they arrived about 4.00 am or a little later.
The only dispute so far relates to the issue of how far the roller door went up.
Mr Lippis said that he saw Mr Somuncu and Mr Ildirar coming towards the shed. Mr Westley and Mr Wood both said that they saw Mr Somuncu.
As I have indicated above, the defence submission was that the identification of Mr Somuncu was false. In part that turned on how far the roller door was raised, but that was only one issue. The defence pointed to inconsistencies in the evidence of the principal witnesses, and to inconsistent prior statements. The defence argued before the Magistrate that the principal witnesses had concocted their evidence to get back at the defendants because of hostility towards them over previous matters involving them. No evidence was led for the defence.
The issue now is whether it was open to the Magistrate to accept the principal prosecution witnesses as truthful, and to convict on the basis of their evidence.
The Magistrate’s Reasons
The Magistrate summarised the criticisms of the principal prosecution witnesses and their evidence. They were matters going to credibility and reliability. She then focused on a number of criticisms made by Mr Mead of their evidence, which went mainly to their credibility. On three occasions she appears to have named the wrong witness. The Magistrate then dealt with criticisms of the same witnesses made by counsel for the co-defendant.
Next she explained why she accepted the evidence of the three principal witnesses. Her assessment of their manner of giving evidence is significant. So is her acceptance of their explanations for deficiencies in their evidence. For example, she said at [49]:
[49]Having considered all the criticism of the prosecution case, I am not persuaded that the evidence of prosecution witnesses should be rejected because of a lack of precision and due to inconsistencies in account. The prosecution witnesses were persons of good character doing their best to give a candid account. …
She also accepted their explanations for matters that were the subject of evidence but not referred to in statements made to the police. She continued at [49]:
[49]… In submissions, much emphasis was placed on what was not said in police interviews. Given the fairly basic account recorded in those statements compared to what I’ve heard in court, none of those criticisms ran true. I didn’t consider any of the prosecution witnesses came to court with an ulterior motive. I considered that they were all reasonable. I expect inconsistencies given the fact that this incident happened over a short period of time.
The Magistrate had doubts about the reliability of Mr Lippis when considering his evidence identifying the co-defendant as one of those present. She considered the possibility that while honest he had jumped to the wrong conclusion. She thought it was reasonably possible that he had, and was not prepared to act on his evidence identifying the co-defendant.
But when it came to the evidence against Mr Somuncu, she was prepared to accept and rely on the evidence of Mr Wood and Mr Westley. She said at [59]:
[59]… Neither the criticism of defence counsel nor any inconsistencies have caused me to doubt the veracity of their evidence. I reject Mr Mead’s assertion that there were signs of concoction, the inconsistencies were measured and the mistakes that they made suggests that they are not to be trusted or relied upon. I had the opportunity to see them and they were candid, helpful, honest, and if they made a mistake they were prepared to agree. …
[Counsel agreed that the word “measured” was a transcription error.]
Relying on the evidence of Mr Westley and Mr Wood to support the evidence of Mr Lippis, the Magistrate found Mr Somuncu guilty.
Consideration of appeal
It is evident that the Magistrate considered with care the attack on the credibility and reliability of the principal prosecution witnesses. She acknowledged deficiencies in their evidence, but decided that these deficiencies did not undermine their evidence.
It cannot be said that the Magistrate failed to identify or deal with the central issues. The three errors as to the name of a witness do not detract from her reasoning considered overall.
Mr Mead’s submission became, and had to be, an attack on the Magistrate’s approach to particular aspects of the evidence.
He pointed to the fact that Mr Lippis gave some significant evidence identifying Mr Somuncu as present at the scene, this evidence not being in the statement that he gave to the police on the night in question. But the Magistrate accepted Mr Lippis’ explanation for this. The explanation was credible. He made the point that the Magistrate said that Mr Lippis’ evidence identifying the co-defendant was “fundamental” to the case against the co-defendant, but she had not been prepared to act on his identification of the co-defendant. In her reasons the Magistrate said at [58] that she could not be satisfied that Mr Lippis did not hold a mistaken but genuine belief that the co-defendant was involved because of his involvement in an earlier incident. Mr Mead argued that it was inconsistent of the Magistrate to accept his evidence in one respect, but not be prepared to rely on it in another and important respect. I disagree. The point is that on the identification of the co-defendant the Magistrate was not prepared to rely on his evidence to make a finding beyond reasonable doubt. There is nothing illogical or unreasonable in that.
In cross-examination, Mr Westley admitted to certain prior convictions. One was for a minor public order offence. The others were for traffic offences which were moderately serious. Mr Westley also freely admitted having made a false statement to the police to back his friends up. I do not consider that the convictions were an obstacle to the Magistrate’s conclusion that the prosecution witnesses were persons of good character. The Magistrate dealt specifically with this issue, and with the fact that Mr Westley admitted he had lied. Again, in the case of Mr Westley there was some evidence that was not in the statement made to the police. But once again, the Magistrate accepted the explanation for this.
These are the main criticisms made by Mr Mead of the evidence and of the Magistrate’s reasoning, although there were other points that he made.
I am not persuaded that it was not open to the Magistrate to reason as she did. In general terms she accepted the principal witnesses as truthful, and by and large reliable, and she accepted their explanations for identified deficiencies or problems in their evidence. It was open to her to reason as she did.
I am not satisfied that the Magistrate erred, let alone that it was not open to her to make the findings that she made.
I dismiss the appeal.