Sprigg v Police - [2015] SASC 197

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SPRIGG v POLICE
[2015] SASC 197
Judgment of The Honourable Justice Vanstone
16 December 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Application for extension of time within which to appeal against conviction - applicant found guilty in the Magistrates Court of assault causing harm, aggravated - whether magistrate erred in accepting the evidence of the complainant - whether applicant's evidence was unduly deprecated.
Held: appeal dismissed. The observations made by the magistrate regarding the complainant and the applicant were open to him. There were sound reasons to find the prosecution case proved.

SPRIGG v POLICE
[2015] SASC 197
Magistrates Appeal
Criminal

VANSTONE J: Brett Richard McKenzie Sprigg applies for an extension of time within which to appeal against his conviction in the Magistrates Court for an aggravated offence of assault causing harm. He argues that there are infirmities in the manner in which the magistrate approached and evaluated the evidence called at trial.
Background
The applicant was convicted after a two-day trial. The victim, Mr Graham Smith (V), gave evidence that he was assaulted at his home at Brukunga by the applicant on 6 June 2014. V said that on the evening of that day he was at his home with two others when the applicant, a younger man known to him, telephoned and asked to visit. V said he had known the applicant’s father all his life and had known the applicant since he was a child. When he arrived the applicant had liquor with him. All four of them had some drinks. Later the other two dispersed and V went into the lounge room to feed the two joeys he was caring for. He said that there was a discussion between the two of them about V going to bed and then the applicant repeatedly struck him with a heavy piece of iron piping used as a fire iron, on the head, face, arms and leg. The blows drew blood and the applicant said to him “Go and clean yourself up before I kill you” or words to that effect. V said he left the house and went to get help from his neighbour. The neighbour rang the police.
The victim attended the local hospital. The doctor who examined him gave evidence. V was found to have bruising to the left side of his forehead, swelling over the right side of the face (both areas showing dried blood), abrasions to the upper arms and a fracture to the tibia bone of the lower leg. He also complained of pain to the upper left arm, left thigh, both knees and lower left leg. Photographs of the injuries were presented.
In cross-examination it was suggested to V that there was an argument about the manner in which he was looking after the joeys. It was suggested that V had started to yell at the applicant, that he got very angry with him and that it was he who had picked up the iron piping and swung it at the applicant. It was suggested that the applicant’s actions in taking hold of the piping were in self-defence and that in the ensuing wrestle they had both tripped over and fallen, with the applicant on top of the victim. It was then suggested that V had placed his hands around the applicant’s throat, choking him, and that it was this which led to the applicant picking up the piping and hitting V on the head. All that was denied.
The neighbour who called police gave evidence. He described the victim as being “covered in blood”, with a “nasty gash on his head” and “limping very badly”. A crime scene officer who examined V’s home also gave evidence. He located the iron piping on the sofa in the lounge room. A young kangaroo was sitting on it at the time.
The applicant gave evidence broadly consistent with the instructions which had been put to V.
In his written reasons the magistrate summarised the evidence of each witness, noted that the onus of proof remained on the prosecution, and then turned to an analysis of the evidence in support of the charge. The magistrate observed that V “was not a perfect witness”. He described V as being “unsophisticated and slow thinking”. He said that he formed the impression that V was an honest witness, though his recollections were imperfect and there were some contradictions with his statements to police.
As to the applicant, the magistrate found that in giving evidence his demeanour was “controlled”, consistent with his presentation when interviewed by police. Several implausible aspects of his account were noted. Those included his claim that despite his concern that V was going to “finish him off” he went back into the house, sat down and had a cigarette, and that, despite his account of the two men having fallen on the mattress in the course of the scuffle, there was no blood found on it. The magistrate also found improbable the applicant’s claim that he had inflicted only one or two of the injuries sustained by V.
The magistrate found that V was repeatedly beaten by the applicant with the iron piping and that he sustained significant harm as a result. He rejected the applicant’s evidence.
Arguments on appeal
Upon the appeal Mr Redford, for the applicant, levelled a number of criticisms at the evidence of V. He argued that these had not been adequately taken into account by the magistrate. For instance, V was cross-examined to the effect that in his evidence-in-chief he had not mentioned an allegation made previously that the applicant had held the piping across his throat. When asked about that he said that he had forgotten to mention it. Mr Redford pointed to V’s inconsistency about what time the applicant had telephoned him, prior to attending at his home. Then, counsel suggested there was a certain vagueness in V’s evidence as to what the applicant was doing immediately prior to the assault, and whether he used the iron piping to stoke the fire before using it on V. Further, V did not claim in his evidence, as he had to police, that the applicant threatened to kill him at the time he was first struck with the weapon. Finally, there was some prevarication by V as to whether the applicant or V himself, at the instance of the applicant, had washed the iron piping after the incident. Mr Redford argued that these inconsistencies should have been weighed, along with the fact that V had been drinking, and should have led to reticence in relying on V’s account.
Counsel also argued that the magistrate’s assessment, both of the applicant’s interview with police shortly after the incident and also of his evidence, was unduly critical. He argued that the magistrate’s observations that, upon interview, V was “calm”, that he showed “the occasional flash of aggression” and that he showed an “incongruous concern over the welfare of the kangaroos”, despite V’s serious injuries, were unfair. Counsel argued that it was equally possible that these appearances were due to the applicant being intoxicated and shocked. Counsel submitted that the adjective “aggressive” was not warranted. He added that it was not suggested to the applicant in evidence that he was aware of the full extent of V’s injuries. The magistrate described the applicant’s demeanour in giving evidence as “similarly controlled”. Counsel submitted that those aspects of the applicant’s evidence which were found to be “implausible” were explicable.
Discussion
Like the magistrate, I consider that, despite some deficits in V’s evidence, he presented as an honest witness. Moreover, there was substantial support for his account. For instance, there was blood found on and about the lounge chair in which he claimed to have been attacked. Then, he had a number of injuries at different sites which supported his account that he was struck repeatedly. The inconsistencies noted by the applicant’s counsel went to rather insignificant matters. It was not surprising that V might not recall exactly what the applicant was doing immediately prior to the attack. After all, he suffered significant injuries. The fact that he failed to say in evidence-in-chief that he was also partially choked by the applicant bore that out. He similarly overlooked the applicant’s threat to kill him. The time of the applicant’s arrival at his house was neither here nor there. The same could be said of what led to the washing of the iron piping after the incident. Inconsistencies of this nature are commonly seen in the evidence of persons who have undergone a traumatic incident. The magistrate was entitled to accept V’s evidence notwithstanding them. His reasons make clear that he took them into account.
I have viewed the recording of the interview with the applicant which accompanied his arrest on the night of the incident. I agree with the magistrate that the applicant’s presentation was unusual. The only matters which seemed to concern him were the plight of the joeys and his wish to recover his telephone and bag from V’s house. His insistence on so doing appeared to be instrumental in police placing handcuffs upon him. He did not appear to be particularly intoxicated or in shock. His suggested lack of knowledge of the extent of V’s injuries could be contrasted with the neighbour’s observation of V’s appearance. In all, his contention that it was the older and weaker man who attacked him was tenuous, especially considering the degree of V’s injuries and his flight to his neighbour’s house for assistance. The magistrate was entitled to reject the applicant’s claim that V’s broken leg might have been caused by a fall down the front steps when he left his home. I agree with the magistrate that the applicant’s conduct after the event in remaining in the house and having a cigarette in the living room was surprising for one who claimed that he feared for his life and was afraid V would return to finish him off.
Not only were the various impugned observations of the magistrate open to him, but I agree with them. The evidence was capable of proving the charge. There were sound reasons to accept V’s evidence and to reject that of the applicant.
Conclusion
The applicant’s solicitor filed an affidavit explaining the delay in filing the notice of appeal. I accept the explanation and would allow an extension. However, I have no misgivings about the decision of the magistrate.
The appeal must be dismissed.
The orders I make are:
1.the time within which to appeal is extended to 28 October 2015;
2.the appeal is dismissed.