Spurway v Police
[2011] SASC 177
•14 October 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SPURWAY v POLICE
[2011] SASC 177
Judgment of The Honourable Justice Blue
14 October 2011
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
CRIMINAL LAW - EVIDENCE - RES GESTAE
CRIMINAL LAW - EVIDENCE - COMPLAINTS
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - POWERS AND DUTIES IN RESPECT OF UNREPRESENTED LITIGANTS
Appellant found guilty of assault causing harm – accused self-represented at trial – whether extension of time to appeal should be granted – whether exceptional circumstances justify delay – whether a miscarriage of justice if extension not granted – whether Magistrate erred in admitting and using evidence of prior statements by complainant – whether Magistrate placed undue pressure on appellant to conclude his cross-examination
Held: appeal allowed, conviction set aside and matter remitted to the Magistrates Court for a new trial: (1) the appellant did not demonstrate exceptional circumstances to justify the lengthy delay; however there would otherwise be a miscarriage of justice if an extension were not granted (2) the Magistrate erred in admitting and using the evidence of prior statements as they do not fall within the doctrines of res gestae or proximate complaint (3) the Magistrate erred in placing undue pressure on the self-represented accused to conclude his cross examination.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Supreme Court Civil Rules 2006 (SA) r 281, r 295(1)(a), referred to.
Ratten v The Queen [1972] AC 378; Kilby v The Queen (1973) 129 CLR 460; MacPherson v The Queen (1981) 147 CLR 512; Walton v The Queen (1989) 166 CLR 283; M v The Queen (1994) 181 CLR 487; Suresh v The Queen (1998) 72 ALJR 769, applied.
R v Hart [2004] SASC 363, distinguished.
Cooling v Steel (1971) 2 SASR 249; Gikas v Police (1999) 202 LSJS 301; Jackamarra v Krakouer (1998) 195 CLR 516; Papakosmas v The Queen (1999) 196 CLR 297; Police v Warren [2000] SASC 285; R v Armstrong (1983) 35 SASR 356; R v Balchin (1974) 9 SASR 64; R v Brown [1963] SASR 190; R v Foster (1996) 187 LSJS 135; R v Hatfield [1971] Crim LR 700; R v Marsh (1935) 25 Cr App R 49; R v Rostom (2007) 98 SASR 528; R v Trotter (1979) 22 SASR 64, considered.
SPURWAY v POLICE
[2011] SASC 177Magistrates Appeal: Criminal
BLUE J: The appellant Mr Spurway was charged by the Police with assaulting the complainant and thereby causing her harm.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 20(4).
Mr Spurway was self-represented at trial. Each of the complainant and Mr Spurway gave evidence. The case turned upon the Magistrate’s assessment of the evidence of the complainant and Mr Spurway.
The Magistrate found Mr Spurway guilty and convicted him of the offence.
Mr Spurway seeks to appeal from that conviction and seeks an extension of time within which to do so.
Facts
In 2006, Mr Spurway and the complainant commenced a relationship.
The complainant lived in a house with her three children in the city while Mr Spurway lived in a unit on Greenhill Road.
In April 2008, an incident occurred between them at Mr Spurway’s unit. Mr Spurway asked the complainant to leave and never to return. However, after that incident, the parties resumed seeing each other.
On the morning of 27 May 2008 (“the morning”), the complainant telephoned Mr Spurway and then arrived at his unit with two take-away coffees.
They had a conversation, the content of which was in dispute.
After this, on the complainant’s account, the following occurred.
1.While they were both in the bedroom, Mr Spurway pushed her to the ground.
2.Mr Spurway:
(a) kicked her a number of times, including one kick to the right‑hand side of the back of her neck;
(b) picked her up and threw her onto the bed;
(c) put his knee on her spine and twisted her right arm behind her back;
(d) smashed her head against the wall and bed frame.
3.He then walked away into the kitchen and there was a further conversation between them.
4.The complainant and Mr Spurway walked towards each other and she pushed him in the chest.
5.He punched the complainant twice; one punch was blocked by her by her hand and the other connected with her chin.
Mr Spurway’s account of what occurred was as follows.
1.The complainant swung a number of punches at him, three of which connected with his face.
2.He put his arms around her to restrain her.
3.She struggled and both parties slipped on the carpet and fell onto the bed.
4.The complainant struggled, kicked and bit him.
5.Mr Spurway released her. He walked away into the kitchen.
6.She pushed him aside and left.
On both accounts, the complainant then proceeded downstairs and out onto Greenhill Road. Mr Spurway went onto the balcony of the unit and called something down to her.
On Greenhill Road, the complainant called the police number 131 444 and spoke to the operator.
A police officer and an ambulance officer attended at Greenhill Road, and spoke to the complainant.
The complainant was conveyed to a hospital, where she was treated by a doctor and seen by two other police officers.
Application for extension of time
Pursuant to r 281 of the Supreme Court Civil Rules 2006 (SA), the time to appeal from a judgment of the Magistrates Court is 21 days. The time to appeal expired on 10 June 2010.
Mr Spurway did not file the notice of appeal until almost 12 months later on 2 June 2011. He applied for an extension of time within which to appeal pursuant to r 295(1)(a).
I determined to hear argument on the application and on the appeal concurrently.
Mr Spurway’s application was supported by an affidavit on which he was cross-examined.
The effect of Mr Spurway’s evidence is as follows.
1.He was very shocked by the guilty verdict, felt depressed and humiliated, and withdrew from his friends and society and largely stayed home by himself.
2.Within the time limit, he spoke casually to a solicitor about the importance of the time limit within which to appeal. The solicitor said that although there was a time limit the court had power to extend it, and he was currently doing an appeal in a matter in which the verdict had been delivered two years before.
3.Mr Spurway wanted to appeal, but put off thinking about it and could not face doing it.
4.Mr Spurway was particularly embarrassed because he had been a police officer before his retirement. He felt he now wore a stigma of a perpetrator of domestic violence.
5.In May 2011, Mr Spurway was served with a notice of a claim by the complainant for victims of crime compensation, which included a medical report from her treating doctor.
6.Mr Spurway’s resentment at the verdict, prompted by the notice of claim and medical report and coupled with the stigma he felt, finally prompted him to consult a solicitor and thence to apply for an extension of time within which to appeal.
During cross-examination, it was put to Mr Spurway that it was the victims of crime claim per se which prompted him to seek an extension of time within which to appeal. He denied this, and effectively said that it prompted resentment which in turn prompted his action. Mr Spurway did not adduce any medical evidence concerning his reaction to the verdict.
Legal Principles
The following principles apply to an application for extension of time.
1.The question whether or not an extension of time should be granted involves an exercise of discretion, which should not be circumscribed by fixed and binding rules.[2]
2.An applicant for an extension must bring forward material to show why the appeal was not filed within time and why the application for an extension ought to be granted.[3]
3.Prejudice suffered by the other party by reason of the delay is a factor tending against exercise of the discretion to extend time.[4]
4.Where the delay is substantial, the applicant must give a detailed explanation for the delay.[5]
5.Where the delay is substantial, the applicant must establish either:
(a) that the delay was caused through exceptional circumstances or some untoward vicissitude of life which prevented the applicant from applying his or her mind to the question of appeal;[6] or
(b) otherwise, that on the merits the appeal would be likely to succeed.[7]
6.The overriding question is whether, if an extension is not granted, there will be a miscarriage of justice.[8]
[2] Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at 539 per Kirby J; Police v Warren [2000] SASC 285 at [17] per Gray J.
[3] R v Foster (1996) 187 LSJS 135 at 138 per Lander J.
[4] Gikas v Police [1999] SASC 139; (1999) 202 LSJS 301 at 306 per Lander J.
[5] R v Brown [1963] SASR 190 at 191 per Napier CJ, Millhouse and Hogarth JJ; R v Foster (1996) 187 LSJS 135 at 139 per Lander J.
[6] R v Hatfield [1971] Crim LR 700; R v Balchin (1974) 9 SASR 64 at 65 per Hogarth ACJ, Bright and Walters JJ; Police v Warren [2000] SASC 285 at [17] per Gray J.
[7] R v Marsh (1935) 25 Cr App R 49; R v Balchin (1974) 9 SASR 64 at 65 per Hogarth ACJ, Bright and Walters JJ; R v Foster (1996) 187 LSJS 135 at 139 per Lander J.
[8] R v Trotter (1979) 22 SASR 64 at 65 per Walters J; R v Armstrong (1983) 35 SASR 356 at 367 per Matheson and Johnston JJ; R v Foster (1996) 187 LSJS 135 at 140 per Lander J.
Analysis
In the present case:
1.the delay is very long;
2.there is an explanation, but not a satisfactory one, for the delay;
3.the Police do not assert that specific prejudice will be caused, but point to the general prejudice involved in subjecting the complainant to the harrows of giving her evidence again, and the general fading of memories with the passage of time;
4.Mr Spurway explains what he characterises as a vicissitude of his life which prevented him from applying his mind to the question of appeal, but it is not supported by any medical evidence.
Mr Spurway’s reasons and explanation for the lengthy delay are not satisfactory and do not amount to exceptional circumstances.
But for my view that otherwise there would be a miscarriage of justice and that if an extension of time is granted the appeal succeeds, I would have exercised my discretion against granting an extension of time.
However, for the reasons which follow, the trial did miscarry and it is necessary to grant an extension of time within which to appeal to avoid a miscarriage of justice.
The reasoning of the Magistrate
Upon analysis, the reasoning of the Magistrate involved an assessment of four matters:
1.the manner of giving evidence of the complainant and Mr Spurway;
2.the medical evidence as to the complainant’s injuries, or lack thereof;
3.evidence of distress exhibited, and statements made, by the complainant to the police and medical witnesses;
4.aspects of the evidence of the complainant and Mr Spurway which might be considered inconsistent or unsatisfactory.
First, as to manner of giving evidence, the Magistrate assessed both the complainant and Mr Spurway as having given their evidence well and as having clearly articulated their respective accounts of the incident. This aspect was therefore neutral.
Secondly, as to the medical evidence, photographs of the complainant were tendered and evidence adduced from the medical and police officers. While the ambulance officer and doctor who saw the complainant on the day in question observed some injuries, the complainant’s general practitioner (who examined her the following day) observed no injuries at all. The Magistrate concluded that the nature and degree of the injuries which were sustained by the complainant were consistent with her account and also consistent with Mr Spurway’s account. This aspect was therefore neutral.
Thirdly, the Magistrate had regard, not only to the distress exhibited by the complainant during the 131 444 call and to the police and medical officers, but also to the content of statements made by the complainant during the 131 444 call.
Fourthly, as to potential inconsistencies and unsatisfactory aspects of the evidence of the complainant and Mr Spurway, the only comment made by the Magistrate concerning the complainant was that “there was occasion where she was unresponsive in answer to questions and sought to introduce impermissible evidence of bad character”. Concerning Mr Spurway’s evidence, the Magistrate identified seven aspects which he considered either involved inconsistencies or were otherwise unsatisfactory and cast doubt upon the reliability of his evidence.
In summary, the Magistrate’s decision turned on his assessment of statements made by the complainant during the 131 444 call and of distress exhibited by the complainant, together with his assessment of inconsistencies in and unsatisfactory aspects of the evidence of Mr Spurway as compared to the complainant.
Mr Spurway’s contentions on appeal
Essentially, Mr Spurway’s principal contentions on appeal are:
1.the Magistrate erred in admitting and using evidence of prior statements by the complainant to the police and medical officers (including the 131 444 call);
2.the Magistrate erred in failing to advise Mr Spurway of his right to object to the admissibility or use of such evidence of statements by the complainant to the police and medical officers;
3.the Magistrate placed inappropriate and undue pressure on Mr Spurway to conclude his cross-examination on day one of the trial;
4.the Magistrate erred in his assessment of inconsistencies and unsatisfactory aspects of the evidence of the principal witnesses, being the complainant and Mr Spurway;
5.the Magistrate erred in concluding that the low level of injuries sustained by the complainant were consistent with her account;
6.the Magistrate failed to identify to Mr Spurway issues to cover in his closing address.
Evidence of Prior Statements by the Complainant
The Police called evidence from the responding police and ambulance officers who attended at Greenhill Road, the doctor who treated the complainant at the hospital and two police officers who attended on her there.
Each of the five witnesses gave evidence of the complainant’s apparent emotional state including, initially, fright, and throughout distress.
In addition, the Police led evidence of the witnesses’ discussions with the complainant as follows.
1.The responding police officer said that the complainant gave him information on who had brought her to the state she was in.
2.The responding ambulance officer said that she told him that she had gone to Mr Spurway’s unit for coffee and he had assaulted her.
3.Both police officers attending at and the doctor at the hospital said that the complainant told them that she had been assaulted.
The Police also tendered both the audio recording and a transcript of the telephone call between the complainant and the 131 444 operator.
As to the evidence of statements made by the complainant to the police and medical officers, the Magistrate received the evidence without comment.
As to the evidence of the content of the 131 444 call, Mr Spurway initially objected on the basis of late disclosure and lack of proof of provenance. After provenance was proved, the Magistrate admitted the recording and the transcript without comment about their relevance, admissibility or use.
During the closing address, the prosecutor made submissions by reference to proximate complaint by the complainant, and submitted that the complaints were consistent with her evidence of what had occurred at Mr Spurway’s unit.
The Magistrate had regard to the content of what the complainant said during the 131 444 telephone call. He expressed himself as follows:
I have had regard to the emergency call in assessing [the complainant’s] credibility as a witness. The terms of that call are consistent with her evidence of the incident. Her description of the assault during the call is largely in keeping with the evidence that she gave although there are some differences.
Admissibility and use of 131 444 call
At a theoretical level, the Magistrate might have admitted and used the evidence of the 131 444 call in three different ways:
1.under the doctrine of res gestae, using the words spoken by the complainant as evidence of what occurred at Mr Spurway’s unit;
2.under the doctrine of proximate complaint, using the words spoken by the complainant as to what had occurred within Mr Spurway’s unit to assess her credit, having regard to whether or not her story to the police was consistent with her evidence;
3.as palpable evidence of the complainant’s distress to assess her credit.
The Magistrate did not, either during the trial or in his reasons, make any explicit distinction between these three different types of admissibility or use. In so doing, he erred.
As this evidence was an important aspect of both the case and the Magistrate’s reasons for judgment, it was vital that he direct himself as to the legitimate uses he could make of it. To do this, he needed to identify and analyse the three different possible bases of admissibility and use.
Res gestae
If the evidence was admissible under the res gestae doctrine, it necessarily follows that the Magistrate did not err in his actual reception and use of that evidence.
The doctrine that statements which form part of the res gestae are admissible as evidence of the truth of their contents is regarded as an exception to the rule against hearsay.[9]
[9] Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 at 304 per Wilson, Dawson and Toohey JJ.
Evidence of a statement is admissible under the res gestae doctrine if: [10]
the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening…
it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused;
[10] Ratten v The Queen [1972] AC 378 at 389 and 391 per Lord Wilberforce; approved by the High Court in Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [22] per Gleeson CJ and Hayne J; [53]-[54] per Gaudron and Kirby JJ.
In Walton v The Queen, Wilson, Dawson and Toohey JJ said:[9]
Such statements will rarely be purely assertive. Ordinarily they are reactive and are uttered in a context which makes their reliability the more probable. On the other hand, if a statement by a person about … is a bare assertion not amounting also to conduct from which a relevant inference can be drawn, then it ought to be excluded as hearsay.
In Papakosmas v The Queen,[11] Gaudron and Kirby JJ, after citing the passages from Ratten quoted at paragraph [47] above, said:
The principle expressed in Ratten is crucially dependent on the virtual certainty of the statement in question being true and, to that extent, it reflects the common law’s bias against the reception of hearsay evidence.
[11] Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [55].
In the present case, the complainant had left Mr Spurway’s apartment, which was on the first floor, gone down the steps and reached the footpath of Greenhill Road before phoning the police. Mr Spurway did not follow her down the stairs, and remained on the first floor in the unit or on the balcony.
The content of the statements made during the phone call shows that the complainant was giving a narrative of past events (albeit extremely recent). For example:
1.the complainant commences the phone call by saying “There’s been an assault, please” and “I want to report an assault, please”;
2.the complainant says “I’m on Greenhill Road waiting now”;
3.the complainant says “He’s still inside, I’ve walked away”;
4.the complainant then gives an account of what had occurred inside the unit.
It is true that after this and some three minutes into the phone call, the complainant says that she is scared standing there because, if Mr Spurway comes out, he will kill her, and that she wants to run away. It is also true that the complainant exhibits an intense state of apparent anxiety and breathlessness. However, both the objective circumstances and the content of the telephone call prior to that point demonstrate that the statements made by the complainant form a narrative of a past event, and the circumstances do not satisfy the tests laid down in Ratten as approved by the High Court.
Accordingly, the statements do not fall within the res gestae doctrine and were not admissible on that basis.
Proximate complaint
In Kilby v The Queen,[12] Barwick CJ (McTiernan, Stephen and Mason JJ agreeing) said:
evidence of a complaint at the earliest reasonable opportunity is exceptionally admitted only as evidence of consistency in the account given by the woman claiming to have been raped: that is to say, it is admitted as going to her credit … the fact of the complaint buttresses her evidence of no consent or, as was said in R v Lilyman, is inconsistent with consent …
A review of the subject begins, in my opinion, with Reg v Lilyman … [in which] the Court of Crown Cases Reserved … [said] “It clearly is not admissible as evidence of the facts complained of … the complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness box, as being inconsistent with her consent to that of which she complains … the evidence … can be legitimately used only for the purpose of enabling the jury to judge for themselves whether the conduct of the woman was consistent with her testimony on oath given in the witness box negativing her consent”.
Halsbury (1952) 3rd ed vol 10 p 468 para 859 in my opinion, puts the matter in proper perspective where it is there said “the admissibility of the particulars of a complaint made soon after the commission of an alleged offence in the absence of the defendant by the person in respect of whom a crime is alleged to have been committed is peculiar to rape, indecent assault and similar offences upon females, and also offences of indecency between male persons …” The admission of a recent complaint in cases of sexual offences is exceptional in the law of evidence.
[12] Kilby v The Queen (1973) 129 CLR 460 at 466-472.
In M v The Queen,[13] Gaudron J said:
Complaint is a matter of some significance in sexual cases … in the case of sexual offences, evidence of early complaint is admissible to negative any effect the alleged victim’s silence might have on her credibility.
[13] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 513-4.
In Suresh v The Queen,[14] Gaudron and Gummow JJ said:
Evidence of prior complaint is admissible in sexual offence cases by way of exception to the rule against hearsay. It is admissible because of the tendency of people to assume, at least in earlier times, that the victim of a sexual offence will complain at the first reasonable opportunity and that, if complaint is not then made, a subsequent complaint is likely to be false … It is admitted not as evidence of facts in issue, but as evidence of consistency which buttresses the credit of the complainant.
[14] Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 at [4].
These High Court authorities establish that the admissibility of evidence of proximate complaint on this basis is confined to sexual offences.
However, the Police contend that the decision of the Full Court in R v Hart[15] is authority for the proposition that the admissibility of evidence of proximate complaint applies as much to the non-sexual offences (in particular assault) as it does to sexual offences. I reject that contention.
[15] R v Hart [2004] SASC 363.
In R v Hart, the defendant was charged with false imprisonment, threatening life and assault. The trial Judge had admitted[16] evidence by the alleged victim’s sister. The Full Court described the entirety of her evidence as follows:[17]
Natalie Mickan said that she had received a phone call from her brother at about 8.30 am on 29 October 2002. He asked her to pick up the video from Melrose Park Laundromat. She said he sounded terrified.
[16] Perhaps without objection, as far as can be ascertained from the report.
[17] R v Hart [2004] SASC 363 at [32].
The Full Court addressed Mrs Mickan’s evidence at paragraph [55] of the joint judgment of Nyland and Gray JJ. Read in light of the state of High Court authority that the admissibility of proximate complaint is confined to sexual cases, and in light of the fact that the evidence of Mrs Mickan as summarised by the Court was of her observing her brother’s distress, as opposed to her brother giving her an account of what had occurred, the Full Court in that passage was dealing with the admissibility of distress and not complaint. The majority of references in that paragraph are addressed solely to distress, and the two references to complaint, in context, do not suggest otherwise.
The Police have been unable to cite any authority (other than Hart) in which evidence of proximate complaint was admitted in a non-sexual case as bolstering the complainant’s credit or in which it has been held to be admissible on that basis.[18]
Evidence of distress
[18] Such evidence may be admitted to rebut a suggestion of recent invention but there is no suggestion of that here.
Counsel for Mr Spurway did not contend that evidence of distress exhibited (as opposed to statements made) by the complainant was inadmissible.
Conclusion
While Mr Spurway does not contend that the Magistrate erred in having regard to distress evidenced by the police tape, it was not permissible to have regard to the content of what was said by the complainant. The same applies to the evidence of the police and medical officers as to statements made by the complainant to them.
The Magistrate had explicit regard to the content of the complainant’s statement as recorded on the police tape, and indeed, given his assessment of the factors identified at paragraph [27] above, his assessment of the credit of the complainant by reference to the tape necessarily formed a major component of his overall analysis.
The Magistrate did not refer in his reasons to the content of the statements made by the complainant to the police and medical officers (as opposed to distress exhibited by her), although he had received that evidence. It is impossible to assess the effect of that evidence upon his conclusion.
It follows that the Magistrate erred in admitting evidence of the content of prior statements by the complainant, and in using them (at least in respect of the 131 444 call) to assess her credit.
Advice concerning right to object
A trial judge has a duty to ensure that an unrepresented defendant is apprised of his or her rights and to provide such assistance in the conduct of his or her defence as is appropriate to the particular circumstances.[19] In particular, a judge presiding at a criminal trial must exclude evidence tendered against the accused which is not shown to be admissible.[20]
[19] Cooling v Steel (1971) 2 SASR 249 at 251-252 per Wells J; MacPherson v The Queen (1981) 147 CLR 512 at 523-525 per Gibbs CJ and Wilson J, 534-535 per Mason J, 537 per Aickin J, 545-547 per Brennan J; R v Rostom [2007] SASC 210; (2007) 98 SASR 528 at [35], [43] per Gray and Sulan JJ.
[20] MacPherson v The Queen (1981) 147 CLR 512 at 523 per Gibbs CJ and Wilson J.
Towards the beginning of the trial, the Magistrate advised Mr Spurway as to the course of the trial, but did not provide any advice about his right to object to the tender of evidence on admissibility grounds or otherwise.
When the prosecutor tendered the audio disk through one of the constables who attended at the hospital, Mr Spurway objected on the ground that the constable had no involvement in the recording of the tape. Subsequently, the Police called the technical support officer who had recorded the tape and re-tendered the tape and the transcript of it. Mr Spurway did not object at that point.
Given that Mr Spurway had not been advised about his right to object, the fact that real and important issues arose as to the admissibility and use of the tape and transcript and the fact that Mr Spurway was unlikely to be familiar with the doctrines of res gestae and proximate complaint, the Magistrate ought to have identified the issues of admissibility and use which arose at the time of tender, and advised Mr Spurway of his right to object in relation thereto. This ground of appeal is interrelated with the ground of appeal as to the substantive admissibility and use of the audio tape and transcript.
Taken together, the Magistrate erred in admitting and using the audio tape and transcript in respect of the content of the words spoken. In the circumstances, the fact that Mr Spurway did not object does not avoid or overcome this error.
Given the importance of the audio tape and transcript in the overall conclusion of the Magistrate, as summarised at paragraph [41] above, this error vitiates the decision of the Magistrate, as a result of which the conviction must be quashed.
Influence on Conclusion of Cross-examination
The complainant gave evidence in chief for just over 80 minutes on the first day of trial. As the Police also opened the case and called two other witnesses on that day, including one witness who was interposed (for his own convenience) during the complainant’s evidence in chief, the complainant did not conclude her evidence in chief until 4.10 pm. This left only 20 minutes for cross-examination prior to the normal finish at 4.30 pm that day.
During that 20 minutes, Mr Spurway cross-examined the complainant principally about matters other than the events on the morning in question. His cross-examination about the events the subject of the assault charge was cursory.
At 4.30 pm, the Magistrate asked Mr Spurway if he had any further questions. Mr Spurway asked to adjourn, so that he could mull over his cross‑examination and resume in the morning. The Magistrate said that was possible, but strongly and repeatedly encouraged Mr Spurway to conclude his cross-examination that day. In the course of the dialogue, Mr Spurway said on four further occasions that he would prefer to resume in the morning. Ultimately, under the influence of the Magistrate, Mr Spurway concluded his cross‑examination that afternoon.
The trial Judge in a trial involving an unrepresented defendant is entitled to control the questioning and the course of the case, just as he or she is entitled to do where the defendant is represented. It will always be a question of weight and degree as to whether an unrepresented defendant does not receive the advice or assistance which is appropriate in the particular circumstances of the case. Nevertheless, I consider that the Magistrate erred in the degree to which he placed undue pressure on Mr Spurway to conclude his cross-examination that afternoon.
Matters assessed as going to credit
Apart from considering the effect of the distress exhibited and statements made by the complainant, the Magistrate preferred the evidence of the complainant over that of Mr Spurway by assessing aspects of the evidence of each which might be considered inconsistent or unsatisfactory.
In respect of Mr Spurway, the Magistrate identified seven aspects of his evidence which he assessed as either being inconsistent or unsatisfactory, and reflecting adversely on his credit.
An appeal court will not readily depart from the views of the judge at first instance. I am at a comparative disadvantage in that I did not see or hear Mr Spurway or the complainant give their evidence, and that is capable of impacting on an assessment of inconsistencies or unsatisfactory aspects of their evidence.
However, I have considerable reservations about four aspects of the Magistrate’s assessment of Mr Spurway’s evidence as involving inconsistencies or unsatisfactory aspects impacting upon his credit.
As to assessed inconsistencies, these included the fact that Mr Spurway did not mention in his evidence in chief that (1) the complainant referred to his having asked her to dress him up as a woman, or (2) his having produced a photograph of himself at the Clipsal event.
Given the fact that Mr Spurway’s evidence in chief as to the events of the morning was given in a single monologue without being punctuated by any questions, and the fact that in cross-examination he accepted that each conversation had occurred but said it was not significant and, in one case, may have occurred on another occasion altogether, coupled with the fact that there were at least two inconsistencies in the complainant’s evidence which the Magistrate found did not impact adversely on her credit, I have significant reservations about those two items in the Magistrate’s assessment.
The Magistrate considered that Mr Spurway’s evidence was unsatisfactory by reference to (1) his having told the complainant in April 2009 that she was not permitted to come back to his unit and (2) saying she had broken that rule on the day in question and by reference to a gratuitous statement which he made as to her attractiveness.
As to the first aspect, in the context of the manner in which the complainant had described the April 2009 incident, Mr Spurway’s evidence does not appear to impact adversely on his credit. As to the second aspect, as the Magistrate acknowledged, the complainant had made two gratuitous references to Mr Spurway in her evidence. I have reservations about the Magistrate’s assessment in this regard.
As Mr Spurway’s conviction must be set aside on the first ground, I do not need to consider further the Magistrate’s assessment of credit.
Medical evidence
On appeal, Mr Spurway contended that the independent evidence as to the extent of the complainant’s injuries was inconsistent with the severity of the assault of which she gave evidence.
That independent evidence comprised evidence of the observations by the ambulance officer and police officers, of the doctor who attended the complainant at the hospital, of the complainant’s general practitioner (who observed no injuries the following day), and photographs taken by the police officers on the day in question and again two days later.
Mr Spurway contended that the Magistrate erred in concluding that the injuries were consistent with the complainant’s account.
I have noted above that the Magistrate also concluded that the injuries were consistent with Mr Spurway’s account, and hence the independent evidence as to the complainant’s injuries was in effect neutral.
I consider there is no force in Mr Spurway’s contention. As to the nature of the injuries, Mr Spurway did not demonstrate that the Magistrate erred in his assessment that they were consistent with the incident as described by the complainant. As to the severity of the injuries, that depended upon the degree of force applied (on the prosecution case) by Mr Spurway, and there was no inherent or extraneous reason for the Magistrate to find that a degree of force was applied which exceeded that which could have caused the observed injuries. As the Magistrate observed, Mr Spurway “could have imposed far worse injuries on her if that had been his intention”.
Conclusion
In view of my conclusion on the principal grounds of appeal, I do not need to address the remaining arguments put by Mr Spurway on appeal.
Having identified error by the Magistrate, it is impossible for me to conclude that there was no substantial miscarriage of justice. I can not conclude beyond reasonable doubt, on the face of the record, that the complainant’s evidence ought be accepted and Mr Spurway’s evidence ought be rejected without hearing and seeing them give their evidence.
Equally, without seeing and hearing the evidence, I can not conclude that there must be a reasonable doubt in accepting the complainant’s evidence over Mr Spurway’s, such that I could or should direct an acquittal.
The appropriate order is therefore that the conviction be set aside and the matter remitted to the Magistrates Court for a new trial.
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