Taylor v Police
[2014] SASC 152
•16 October 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TAYLOR v POLICE
[2014] SASC 152
Judgment of The Honourable Justice Peek
16 October 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
MAGISTRATES - HEARING - EVIDENCE
EVIDENCE - WITNESSES - IN GENERAL
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against convictions for aggravated assault and contravention of a term of an intervention order.
After a trial before a Magistrate, the appellant was convicted of one count of aggravated assault against his domestic partner, TC, and one count of contravening a term of an intervention order. On the relevant evening, the appellant and TC shared two four litre casks of wine with JD, a woman they knew. TC also smoked some cannabis and was taking anti-depressants through that period. TC was jealous that the appellant and JD might have a shared romantic interest. The prosecution case was that the appellant punched TC at least twice in the face and that as a result she suffered a fractured nose (and nosebleed) and two bruised eye sockets. The defence case was that he only pushed TC away after she had scratched him, and that she fell heavily onto a coffee table, and thence to the floor, accidentally causing the fractured nose and nosebleed; and that the two bruised eye sockets were either the result of fighting between TC and JD; or self-inflicted blows by TC (of which JD gave evidence); or some other cause to the exclusion of intentional conduct by the appellant (such as a drunken fall). The Magistrate approached the defence case on the basis that the only hypothesis relied upon was that JD was responsible for both the fractured nose and the two bruised eye sockets. His Honour rejected that hypothesis and found the appellant guilty of both charges. The appellant appealed.
Held per Peek J (allowing the appeal):
1. The Magistrate erred in his reasoning and was wrong to approach the matter on the basis that the defence case could only be that JD was necessarily responsible for both the fractured nose and the two bruised eye sockets. [27]-[41]
2. There was a good deal of support for the true defence case and the appellant could not be safely convicted on the available evidence. [28], [30]-[32]
3. The appeal is allowed, and the findings of guilt, convictions, sentence imposed, and all other orders made by the Magistrate are set aside.
4. The appellant is found not guilty and the Information is dismissed.
Criminal Law Consolidation Act 1935 s 20(4); Intervention Orders (Prevention of Abuse) Act 2009 s 31(2), referred to.
Taylor v Hayes (1990) 53 SASR 282, applied.
WORDS AND PHRASES CONSIDERED/DEFINED
"divergent accounts", "evidence consistent with defence case"
TAYLOR v POLICE
[2014] SASC 152Magistrates Appeal
PEEK J. Appeal against convictions for aggravated assault and contravention of a term of an intervention order.
After a trial before a Magistrate held on 1 April 2014, the appellant was found guilty of the following offences:
1.On the 18th day of December 2013 at CHRISTIE DOWNS in the said State, assaulted [TC] and thereby caused harm to her.
Section 20(4) of the Criminal Law Consolidation Act 1935.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that the offender committed the offence knowing that the victim of the offence was a domestic partner of the offender.
This is a minor indictable offence.
2.On the 18th day of December 2013 at CHRISTIE DOWNS in the said State, contravened a term of an intervention order.
Section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009.
This is a summary offence.
He now appeals against both of those convictions.
Background facts and overview
As at 18 December 2013, the appellant lived in a relationship with the complainant, TC, at the appellant’s unit (the unit). They had a young child who was then living in foster care. The appellant, and particularly TC, were experiencing a number of problems. Families SA had recently cancelled TC’s access to her child and they could not afford registration for the family car. TC was taking anti-depressant medication and had previously made suicide attempts.
Late in the afternoon of the previous day, 17 December 2013, the appellant and TC commenced sharing a new four litre cask of wine at the unit and were drinking because they were displeased with these recent events. After some time, they were joined by a woman they knew, JD. She arrived and announced that she was looking for her partner, RH, who was a friend of the appellant and had apparently absconded on home detention bail. RH was not present at the unit but JD stayed to drink with the appellant and TC.
After the first four litre cask of wine was exhausted, TC and JD visited a local hotel to purchase another four litre cask of the same wine. They returned to the unit and continued to drink with the appellant. Both women became heavily intoxicated. Several violent incidents then erupted at the unit, and elsewhere, as to which the appellant, TC and JD gave accounts that were radically divergent.
The trial of the appellant in the Magistrates Court
The prosecution case was that the appellant punched TC at least twice in the face at the unit and that as a result TC suffered harm, namely a fractured nose (with a nosebleed) and two bruised eye sockets (the subject incident). The fractured nose (on the one hand) and the two bruised eye sockets (on the other hand) will be referred to as “the two sets of injuries”.
The appellant denied punching TC. He stated to police in his interview that TC started biting and scratching him and tried to ram some knickers in his mouth; he tried unsuccessfully to restrain her and then pushed her away. He continued that “She fell on the coffee table basically on her butt, smashed the coffee table, landed on her back, smashed her head against the lounge, jumped up, and started fighting with the girl again.” The defence case was that the prosecution could not exclude beyond reasonable doubt that the fractured nose resulted in the above or a similar way, and that the two bruised eye sockets resulted from an incident in the ongoing fight between TC and JD either at the unit or elsewhere sometime later; or from TC inflicting “whacks” and punches upon herself (as to which JD gave evidence); or from some other cause(s) to the exclusion of intentional conduct by the appellant (such as a drunken fall).
The evidence of TC
TC was most upset by the advice from Families SA. She agreed that she was “drinking with the intention of getting drunk” and that she was drunk. She said she had consumed one and a half litres of wine or “a little more”, later conceded “possibly two”, and there are strong indications that it was very likely that she had consumed well over two litres (considering the evidence of the consumption by the respective drinkers of the total of eight litres). There is also evidence that TC smoked cannabis during this period, and that all of this occurred against the background of her also taking anti-depressant medication; she agreed in cross-examination that she would have been using that anti-depressant medication together with alcohol that afternoon.
TC stated that the appellant yelled at her to leave the unit after she accused him of being a paedophile and that he hit her and she fell backwards onto a coffee table and landed on the floor, where he hit her at least once again. She stated that her nose was bleeding heavily as a result and she yelled at JD to call emergency services. She stated that she attempted to call an ambulance on the home phone which was located in the bedroom and that the appellant “ripped it out of the wall”. Although she strongly denied that the appellant made a triple zero call on the home phone which she stated was in the bedroom, and insisted that he ripped it out of the wall, it is to be noted that photos taken by police inside the unit on the afternoon of 18 December 2013 (exhibit P4) show the handset on a bedside cupboard, apparently still connected. There was no evidence given by Detective Watt or any other police officer that the phone had been ripped off the wall. I will return to this matter of an emergency call below.
TC also stated in evidence-in-chief that she then “ran” to a service station in the vicinity where an ambulance was called and that she was conveyed from the service station to hospital. But in cross-examination, TC agreed that after leaving the unit she had gone to RH’s father’s premises, that JD was also there, and that they spent some time there. However, she denied JD’s assertions (which were put to TC in cross-examination and later given in evidence by JD) that while they were there, TC attacked JD by pounding her head into a wall; punching her in the ear, causing it to split; ripping out an earring, causing bleeding; and punching her in the face, causing her lip to split. She also denied JD’s assertions that en route to RH’s father’s premises TC was “whacking” herself in the face.
TC also denied fighting with JD at the unit and pulling out some of her hair but this denial is clearly false as shown by the hair found on the floor of the unit (as to which see below). TC in fact vehemently asserted that she and JD never even argued that night (or early morning) at all. She also strongly denied scratching the appellant at the unit. As to this, the Magistrate said:
[28]I turn to the question of whether or not TC behaved aggressively towards the defendant scratching him quite significantly and attempting to bite him. I find that it is likely to have occurred given the scratching evident on the defendant. That scratching corroborates the defendant’s account. Scratching is visible in the record of interview footage. The scratching appeared fresh and quite significant. The defendant told police of this when first spoken to and it cannot be suggested that this is a recent invention of his. It was never put to the defendant in cross-examination that the scratch marks had some other origin or that the defendant has inflicted those marks on himself. I am certainly not prepared to reject the defendant’s evidence that he was attacked and scratched by TC beyond doubt, indeed I find on the evidence that this occurred.
The evidence of JD
JD stated that she had been looking for her partner, RH, who had removed his home detention bracelet and gone missing. She had arrived at the unit between 4:30 and 5:00pm; she had three serves from the cask of wine with TC and the appellant at which time TC was “paro” (paralytic drunk). She said that TC accused her of being interested romantically in the appellant, which JD denied. JD stated that she went with TC to purchase a second cask of wine after the first was exhausted and she stated that at one stage she and TC were with a neighbour next door to the unit and that TC there smoked some cannabis.
JD stated that TC and the appellant began to argue later in the evening; she witnessed “a little bit of pushing and shoving” between them and saw TC put some underpants in his face and the appellant push TC away. She did not say that she saw the appellant punch TC. JD thought that TC was trying to provoke him. JD stated that TC later grabbed JD by the hair and ripped some hair out of her scalp as she walked out of the unit to sit outside in the gutter to get away from what was happening. JD said that she then heard yelling from inside the unit but no crashing of furniture.
JD stated that she and TC eventually left the unit and walked to RH’s father’s premises. JD noticed that TC had blood on her. On the way, TC was behaving very erratically. She was “whacking herself in the face” and was questioning rhetorically whether “This is what he wants, is it?” JD said: “She was actually punching herself as well.” “She was actually literally going absolutely nuts”. “She was paralytic.”
JD stated that while they were at RH’s father’s premises, TC assaulted her by pounding her head into a wall; punching her in the ear, causing it to split; ripped out an earring, causing bleeding; and punching her in the face, causing her lip to split. However, JD denied that she retaliated at all. However, I note that Senior Constable Ford stated in his affidavit (exhibit P9):
At about 2.16am on Wednesday 18th December 2013 we located a person who identified herself as [JD]. She stated that she was a friend of [TC] and had been with her and [the appellant] during the evening inside [X] Eugene Crescent CHRISTIE DOWNS.
I saw blood on the hands of [JD] but did not see any injury that could account for the blood. I asked [JD] where the blood had come from; she stated that it belonged to [TC]. I cautioned [JD] and continued to speak with her. (Emphasis added)
I note that in her evidence at trial, JD was cross-examined about this matter as follows:
AEverything of mine was around there and that’s when the police came.
HIS HONOUR
QWhen you say ‘around there’, that’s Graeme’s place?
AYeh, yep and I didn’t know where anybody was by that stage.
CROSS-EXAMINATION
QYou had blood on, was that her blood on you?
ANo, that was my blood from the ear and I don’t like to generally get close to other people’s blood.
QWhen you subsequently spoke with the police officer near Graeme’s place early that morning, did you have blood on you then?
AOn my ear, yeh, and my lip and my nose. I had blood all inside my nose.
QDid you have blood on your hands?
ANot that I recall unless I’ve wiped my nose or, I don’t know.
QDid the police officer, this is Constable, Senior Constable Ford?
AYep.
QDid he ask you where the blood had come from? This is blood on your hands?
ANot that I recall.
QCan you recall telling Senior Constable Ford that it belonged to [TC] as you know her?
ANo, I didn’t.
QDid the police officer caution you?
ACaution me of what?
QAbout asking that you had the right not to answer any of his questions about what was going on. Did he caution you?
ANot that I recall.
QDid he take a statement from you?
ANo, he didn’t.
It is also to be noted that JD volunteered in evidence that: “I tell you what if I was going to – I wouldn’t slap, I’d punch. If I was in pure anger …”. She went on to agree that if she did punch somebody, she would go for the head: “Of course, who wouldn’t?”
The evidence of the appellant
The appellant stated that he had about six glasses from the initial cask of wine which was exhausted by around 9:00pm and that TC and JD went to purchase another. He stated that he had two glasses from that second cask. He stated that TC accused him of being a paedophile and of holding a romantic interest in JD. The appellant stated that a fight erupted between TC and JD that involved hair pulling and punches being thrown by both of them. The appellant told TC and JD to leave whereupon they went to visit the next door neighbour, taking the cask with them.
The appellant stated that he then had a shower and went to bed. About an hour or two later they both came back, having finished the cask. They were both drunk “Paralytic, like really drunk. More so [TC] than [JD], but they were both drunk”. TC again accused the appellant of wanting to sleep with JD; she then started biting and scratching the appellant and tried to ram a pair of knickers in his mouth. He tried unsuccessfully to restrain her by holding her arms and then pushed her away and she fell over and smashed the coffee table. According to the appellant, she fell “on her backside but also twisted to try to stop herself falling”. She then got up and continued her argument with JD. This evidence was consistent with his statement to police in his interview: “She fell on the coffee table basically on her butt, smashed the coffee table, landed on her back, smashed her head against the lounge, jumped up, and started fighting with the girl again.”
The appellant noticed that TC then had a nosebleed and he gave her a flannel for her nose. He then rang emergency services on the home phone in the bedroom while TC and JD were still arguing but hung up after around 30 seconds because they both walked out again. The appellant then went back to bed because he had to be up by a certain time in the morning for an appointment.
It is to be noted that exhibit P6 (an emergency services call log) confirms that the appellant did make this call as he stated in evidence. It is also to be noted that the caller is identified as male and that a female is heard in the background arguing with a third person:
00:56:23 LANDLINE [XXXX XXXX], ADD [X/XX] EUGENE CR, CHRISTIE DOWNS.
… LYNETTE PHILLIPS ..
MALE CALLER SAID ‘YEAH I WANT’ … THEN HEARD FML SAY ‘DON’T DON’T STOP STOP’ AND ARGUING WITH SOMEONE IN BACKGROUND.
The evidence of TC referred to above that she tried to make such a call but the appellant “ripped the phone out of the wall” would thus appear to be pure fantasy.
The evidence of Detective Watt
Detective Watt arrested the appellant at 4:14pm on Wednesday 18 December 2013. He interviewed the appellant who said inter alia that TC was scratching him badly because she thought he was leading on with JD, and that he pushed her way in self-defence as noted above. Watt gave evidence that he noticed fresh scratches on the appellant’s neck and torso and accepted that there would have been scratches on the arms as well. He also agreed that the appellant pointed out a significant amount of female hair on the floor of the unit.
The Magistrate delivered oral reasons for judgment on 12 June 2014 and found the appellant guilty of both charges.
The appeal to the Supreme Court
As amended, the grounds of appeal were as follows:[1]
1.That the Learned Magistrate erred in finding the appellant guilty of the offences of one (1) count of aggravated assault and one (1) count of contravening a term of an intervention order contrary to the weight of the evidence.
2.The Learned Magistrate erred at [36] of his Oral Reasons for Judgment (‘Reasons’) in finding that:
2.1 It was not a reasonable possibility that JD was responsible for the fractured nose and the black eyes (‘the injuries’) to TC; and
2.2 It was not a reasonable possibility that TC inflicted the injuries on herself.
3.The Learned Magistrate erred at [37] of his Reasons by concluding that all reasonable hypotheses consistent with innocence had been disproven beyond reasonable doubt.
[1] At the hearing of the appeal, permission was sought (and granted) to substitute the grounds of appeal in the notice of appeal dated 2 July 2014 for draft grounds of appeal set out in a second notice of appeal received on 19 September 2014.
The Magistrate’s reasons
Proof of the prosecution case required: acceptance of the evidence given by TC despite a number of serious problems with it; and rejection of hypotheses of the appellant’s innocence arising on the evidence including that given by JD; and rejection of the evidence given by the appellant himself despite a significant amount of support for it from the physical evidence and the evidence of JD.
It seems to me that there is a good deal of support for the defence case. A substantial amount of blood is to be seen in the photographs on and around the coffee table and it is agreed that this is TC’s blood. It is also agreed that this blood came from her nose and that she had no other wounds or source of bleeding. The photographs also show that the coffee table was comprehensively smashed; and all agree that this was caused by the fall. The evidence is that TC is a large woman and the photographs also bear that out.
However, the Magistrate rejected as a physical possibility that the injury to the nose could have been caused as a result of the fall onto the coffee table that undoubtedly did occur. His Honour stated:
[31]There was a substantial quantity of blood in the vicinity of the smashed coffee table that provides strong corroboration of the account that she sustained the fractured nose and consequent blood nose during the same incident when she landed on the coffee table. Indeed both the defendant and TC gave evidence that it occurred at this time.
[32]Nothing in the defendant’s account directly explains the fractured nose or the bruised eyes. Falling backward on to the coffee table after being pushed, even twisting to one side in the process does not amount to an explanation for the fractured nose in my view. I make it clear that I am not reversing the onus or proof here. It is not incumbent on the defendant to provide an explanation; I simply observe that the defendant’s account does not provide an explanation for the broken nose. (Emphasis added)
I simply cannot agree with his Honour that the appellant’s account cannot provide an explanation for the fractured nose when regard is had to the whole of the evidence. There is ample evidence that TC was very drunk and highly excited. As noted above, and accepted by the Magistrate, TC clearly lied about not scratching the appellant. Further, Detective Watt also noticed the substantial amount of female hair on the floor near the coffee table (which can also be seen in the photographs) and both JD and the appellant say that TC was pulling JD’s hair. TC’s denials of doing so are either deliberate lies or the product of alcoholic amnesia.
As noted above, the appellant said to police in his interview: “She fell on the coffee table basically on her butt, smashed the coffee table, landed on her back, smashed her head against the lounge, jumped up, and started fighting with the girl again.” The photographs show that the lounge room was quite small and that the lounge was right next to the coffee table so that contact with it while trying to get up was not in the least unlikely.
With respect, it follows that it seems rather obvious that if TC, highly intoxicated and highly excited in the process of pulling out the hair of JD and scratching the appellant fell heavily enough to smash the coffee table, it is not hard to envisage the possibility of her then hitting the floor clumsily as she comes off the coffee table or, in her eagerness to return to the fray, smashing her nose on the base of the lounge as she gets up in her drunken and uncoordinated condition.
I therefore find that the Magistrate erred in his approach to this critical matter. His Honour’s error was compounded in that he then stated:
[36]Whatever her [JD’s] numerous shortcomings as a witness, I do not accept as a reasonable possibility JD was responsible for the fractured nose and the black eyes to TC. Nothing in her description of events lead [sic] to there being a real possibility of that occurring. Further, it is intrinsically unlikely that TC would have left with JD if JD had been the person who fractured her nose. JD describes TC as hitting herself in the face but nothing in the actions she describes could be drawn upon to suggest that explains the injury to TC. JD did not go on to claim that in response to TC ‘whacking herself’ in the face as she suffered a profuse nose bleed.
[37]After considering all of the evidence the only conclusion available is that the defendant punched TC several times in the face rather than pushed her as he says. I accept TC’s evidence that she was punched to the face by the defendant several times because that account is corroborated by the bruising to her eyes, the fractured nose, and the copious blood in the area of the broken coffee table. Upon the combined strength of that evidence I reject the defendant’s account that he had simply pushed her beyond doubt. (Emphasis added)
The use of the conjunctive “and” in the second line of [36] indicates that the Magistrate here approached the matter on the basis that the defence case could only be that JD was responsible “for both the fractured nose and the black eyes to TC”.
In fact, as stated above, the defence case was that the fracture to the nose occurred as a result of the fall. While TC did indeed also have two bruised eye sockets, the defence case was that, although that they could also have been caused by the fall, it is more likely that they were caused at some stage in the ongoing fighting between the two women or were self-inflicted.
To this end, the appellant emphasised on appeal that there was no medical evidence led as to what kind of impact or force would be required to produce the observed bruising to the two eye sockets or of the tendency of TC to bruise. There was certainly nothing to suggest that the two sets of injuries necessarily occurred at the same time or place or as a result of the same mechanism.
Nevertheless, at [36] – [37], the Magistrate clearly conceptualised the defence hypothesis in relation to JD as an “all or nothing” proposition. His Honour was incorrect to do so. It was critical that the Magistrate direct himself as to the need to consider the two sets of injuries independently since there were various hypotheses in relation to the two sets of injuries with overlapping alternative possibilities as to how those injuries were caused on the evidence available.
The effect of the initial coupling of the two sets of injuries which starts with the conjunctive “and” in the second line of [36] cascades throughout the two paragraphs. Thus, a further error of reasoning occurs at [36] in the passage “Further, it is intrinsically unlikely that TC would have left with JD if JD had been the person who fractured her nose”. If the fracture was caused by accident, then that could have had no impact on the likelihood of them leaving together; indeed, that underlines the possibility of the injury to the two eye sockets occurring at a later point in time (as postulated by the defence case).
A related error is made at [36] in the passage “JD did not go on to claim that in response to TC ‘whacking herself’ in the face as she suffered a profuse nose bleed”; on the true defence case the profuse nosebleed was suffered at the time of the nose fracture following the fall and not at the later time when TC “whacked herself” in the face (or when JD did something similar to her).
One might add that the self-infliction hypothesis for the bruising to the two eye sockets actually stands on quite firm ground. JD gave direct and specific evidence of it occurring, emphasising the apparent force with which TC struck herself. Further, if, as JD asserts, TC hit JD hard enough to split her ear and split her lip, it does not seem unlikely, given the strange and intoxicated way in which TC was behaving, that she could have hit herself with sufficient force to cause the subsequent bruising around her own two eye sockets that appears in the photographs.
Finally, the last passage in [37] asserts that “TC’s evidence that she was punched to the face by the defendant several times … is corroborated”. I consider that reasoning to be flawed for two reasons. First, because, for the reasons already stated, one cannot assume that the two sets of injuries were suffered at the same time or place or caused by the same mechanism. And second, because “the copious blood in the area of the broken coffee table” is intractably neutral; it is entirely consistent with the defence case, namely, that the nosebleed resulted from the nose fracture which occurred in the area where the coffee table was located. In other words, if the defence case is correct, copious blood in the area of the broken coffee table is exactly what one would expect to find there.
Disposition of the appeal
At the hearing of the appeal, counsel accepted that if error was identified in the Magistrate’s reasoning, a discretion would arise as to whether a re-trial should be ordered or whether I should determine the matter myself.[2]
[2] See Taylor v Hayes (1990) 53 SASR 282.
I consider that the appellant could never be safely convicted on the available evidence and that a re-trial is not required. The witnesses had been drinking heavily and each gave very different accounts of what occurred (or did not occur) at the unit and thereafter. Each had an interest in minimising their own potential involvement in the episodes of violence that were variously alleged and denied and it would be dangerous to prefer the account of any one witness over any other. The matter is now relatively stale, and the witness’s memories of the events are likely to have deteriorated, and will continue to do so. While the available evidence may arouse suspicion as to the conduct of the appellant, I consider that the charges have not been, and cannot be, proven beyond reasonable doubt to the exclusion of reasonable hypotheses consistent with his innocence.
Accordingly, for all of the above reasons, I quash the verdicts of the Magistrate and find the appellant not guilty.
Orders
1The appeal is allowed.
2The findings of guilt, the convictions, and the sentence are set aside.
3The orders made by the Magistrate are set aside.
4The appellant is found not guilty on each count and the Information is dismissed.
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