Timothy James Kennedy v Gregory James Harding No. SCGRG 93/1186 Judgment No. 4121 Number of Pages 7 Criminal Law and Procedure

[1993] SASC 4121

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law and procedure - Appeal against conviction - common assault - arose out of motor vehicle accident - appellant alleged that he struck victim accidentally - magistrate preferred evidence of victim and independent witnesses over appellant - appellant unable to demonstrate compelling grounds to interfere with magistrate's assessments of witnesses and findings of fact. Louth v Diprose (1992) 67 ALJR 95; R v Bird (1985) 1 WLR 816 and R v Williams
(1990) 50 A Crim R 213, considered.

HRNG ADELAIDE, 16 August 1993 #DATE 25:8:1993
Counsel for appellant:     Ms E Griffith
Solicitors for appellant:    Elizabeth Griffith
Counsel for respondent:     Mr M Stevens
Solicitors for respondent: Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 OLSSON J This is an appeal against a conviction recorded by a stipendiary magistrate against the appellant of an offence of common assault. 2. The appellant was charged with having assaulted Kristine Velray Hawkins on 9 December 1991 at Adelaide. He pleaded not guilty and the matter went to trial on oral evidence. 3. It was not disputed that, at about 10.00am on Monday, 9 December 1991, vehicles occupied by the appellant and Ms Hawkins respectively came into contact in Hindley Street Adelaide. The latter was seated in the front nearside passenger seat of a parked vehicle. The appellant was driving another vehicle which contacted the rear of it. The collision came about whilst he was parking his vehicle. The appellant deposed that he merely nudged the rear of the vehicle occupied by Ms Hawkins and that no damage resulted from the contact. This does not appear to have been refuted. There was a dispute between the appellant and Ms Hawkins as to the detail of precisely what thereafter occurred. In the course of her ex tempore judgment the learned magistrate described the version given by the alleged victim in these terms:-
    "Ms Hawkins, who is an enrolled nurse, said that she was
    seated in the front passenger seat of her car which her husband
    had parked, quite correctly, in Hindley Street. She felt a bump
    from behind by an Austin 1800 out of which the defendant alighted.
    Ms Hawkins' evidence was that she approached the defendant with a
    pen and paper intending to obtain the defendant's 'particulars'
    because of the fact that an impact had occurred. It would seem
    that there was no apparent damage, although in his record of
    interview the defendant mentioned some slight damage to his own
    number plate. In any event whether it was reasonable or not, Ms
    Hawkins requested the defendant for his 'particulars' and became,
    contrary to her evidence, in my view quite annoyed when he made it
    apparent that he had no intention of speaking to her. Ms Hawkins
    said that she believed the defendant was very angry and when he
    seemed to be leaving without complying with her request, she
    touched his hat to attract his attention. She says that he then
    pulled his hat firmly on his head and that that was the last thing
    she actually remembered, apart from a brick wall and a crack to
    her jaw which caused her to think that her jaw was broken. She
    then hit the ground and saw the defendant standing over her. She
    denied that she otherwise touched the defendant physically at all.
    She said that she recalled the witness Annette Haridan attempting
    to intervene and that the defendant threatened her and she
    retreated. Then the witness Cooper re-appeared on the scene, at
    this stage she said the defendant regained his composure and
    started to assert that Ms Hawkins had kicked him 'in the balls'.
    There was an incident with the defendant's wallet in which she
    says he dropped it on the ground and she attempted to take it to
    obtain his address, but he put his foot on it." 4. As against that narrative, the learned magistrate summarised the version given by the appellant as under:-
    "... He said that at the time he was working at the
    Penthouse Club in Hindley Street as Production Manager. He parked
    his car to the rear of Hawkins' Volvo station sedan. In so doing,
    because of something which had occurred the previous day with a
    parking inspector, he was being very careful about ensuring his
    vehicle was entirely within the parking space. He said that the
    Volvo was parked in such a manner that the rear protruded into his
    parking space and this caused a minor impact between the two
    vehicles. He says he left the car and checked for damage and that
    there was none. He says that as Ms Hawkins pestered him for his
    particulars and there obviously being damage, he was not
    interested in getting involved with her. Accordingly he proceeded
    to take money from his wallet for the parking meter. He says that
    when he put the money in the meter Ms Hawkins was still pestering
    him. He says she then physically attacked him by raining blows
    upon his chest. He described it as 'playing bongos' on his chest.
    He says this occurred several times. He then says she kicked him
    in the groin and that his reaction to this was to push out, left
    hand open and right hand clenched; his left hand touched her upper
    right torso and his clenched right fist struck her jaw. The sole
    cause for this reaction was because Ms Hawkins kicked him in the
    testicles. In his record of interview the defendant alleged
    numerous other kicks to his legs which he omitted to mention when
    cross-examined by Mr Pfeiffer. He explained the blows as simply
    reacting to being kicked in the groin and because he was shocked.
    He says she fell to the ground and whilst on the ground she had
    broken the skin on his ankle with her finger nails. This
    allegation was not made in the record of interview. He said she
    continually accused him of having broken her jaw." 5. The evidence revealed that, shortly after Ms Hawkins fell to the ground, the appellant deliberately decamped from the scene. 6. He said that he believed that Ms Hawkins' husband appeared on the scene and he realised that the police would be called. He knew that there were outstanding warrants against him for unpaid traffic fines and he did not wish to be apprehended. 7. The matter was referred to the police, but the appellant was not interviewed until 27 February 1992. In the course of that interview he admitted that he had contacted Ms Hawkins' jaw with his closed fist and that she had gone over backwards towards a wall and onto the ground. He said that he did not punch her - he merely pushed her. 8. The version of events which he gave at that stage was:-
    "A. She proceeded to abuse me about colliding with her car
    . After ascertaining there was no damage and receiving abuse from
    this woman I returned the abuse, verbally.
    Q. What did she say.
    A. 'You ran into my car you bastard'. 'What the hell are you
    doing'. She was saying something about taking my rego number and
    taking me to court for damaging her car.
    Q. What did you say.
    A. 'What are you on about. Come and have a look'. 'What are
    you on about. Settle down'.
    Q. Did you abuse her.
    A. Yes.
    Q. What did you say.
    A. The crudest it got was fuck off.
    Q. What happened then.
    A. After the verbal confrontation, which lasted a while, I went
    to the parking meter. I was wearing a money pouch around my waist
    and was getting my wallet and change for the meter.
    Q. What happened then.
    A. I was still receiving verbal abuse from this woman even with
    my back to her. I eventually said take my number and take me to
    court.
    Q. What did she do.
    A. She then struck out towards my wallet trying to grab it.
    The wallet was knocked to the ground. She threw numerous
    'hysterical woman punches' in an overhand motion directed at my
    upper torso and head.
    Q. Did any of these blows connect with you.
    A. Several. I had my arms fully extended trying to keep her
    away.
    Q. Did she do anything else.
    A. She was kicking. I was trying to hold her arms off and she
    started kicking.
    Q. Which leg did she kick with.
    A. I presume it was her right leg.
    Q. How many times did she kick at you.
    A. More than once. I'm not sure.
    Q. Did any of the kicks connect.
    A. Yeah.
    Q. Where were you kicked.
    A. Below my knees, the lower part of my legs then in the lower
    central part of my groin in my testicles.
    Q. How hard.
    A. With reasonable force. It threw me backwards.
    Q. What did you do then.
    A. I had my arms 3/4 extended and I fully extended my arms. My
    right hand was clenched and my left hand was open. That's when I
    connected with her face. It was only with light force. My right
    hand was clenched due to the kick I received in the groin.
    Q. Do you think it was necessary to push her away in that
    manner.
    A. Yes, definitely. No thought of assault had entered my
    mind." 9. A declaration signed by Ms Hawkins' doctor, who examined her on 9 December 1991 certified to the presence of mild bruising to the left side of the face and superficial grazes to the left scapular area and chin, ear and nose. 10. The learned magistrate pointed out that Ms Hawkins was adamant that she did not at any stage touch or strike the appellant, other than the occasion of touching his hat. She recorded that two independent witnesses, who had passed by the scene of events on foot, were called. 11. The first was a Ms Haradin, who was a youth worker in the area. The learned magistrate accepted her evidence, which she summarised as follows:-
    "... Ms Haradin was walking east along Hindley Street when
    she heard Ms Hawkins requests for the defendant's identification.
    She spoke to Ms Hawkins and on being assured she was 'alright',
    she passed some three to four paces on. Then she heard some
    scuffling sound and a yell, at which time Ms Haradin was already
    turning back to the scene and saw Ms Hawkins had already gone down
    and the defendant was very close to her on the ground. Ms Haradin
    said this all occurred in 'less than half a second'. She
    approached out of concern for Ms Hawkins and the defendant was
    threatening towards her such that she was afraid. Under
    cross-examination she re-asserted the defendant's threatening
    manner and that she felt frightened to go between him and Ms
    Hawkins. She felt that he was threatening her physically by
    approaching her while Ms Hawkins was lying on the ground. Ms
    Haradin did not hear the defendant say that he had been kicked in
    the groin by Ms Hawkins." 12. The second was a Mr Cooper, who was also accepted as a credible and reliable witness. The learned magistrate described the effect of his evidence in these terms:-
    "Mr Cooper was running late for work. He approached and
    heard a very heated argument between Ms Hawkins and the defendant.
    He said that when he was some five to ten metres past the area he
    heard her yell. He looked around and saw Ms Hawkins on the ground
    and the defendant standing over her. He gave his particulars to
    the woman he believed had been assaulted. As Ms Griffith pointed
    out, contrary to Ms Hawkins' evidence this witness said that there
    were other vehicles parked in Hindley Street and given the time of
    day that seems entirely likely. His evidence was that he believed
    the defendant had assaulted Ms Hawkins but he did not actually see
    the blow." 13. It is clear that the learned magistrate preferred Ms Hawkins as a more credible witness than the appellant. Having pointed out that, on cross examination, it became apparent that, on the evidence of the appellant, the juxtaposition of the two persons was such that it would have been impossible for Ms Hawkins to have used her foot to kick him in the testicles, as he said she did, and that he then later suggested that it was her shin that came into contact with his testicles, the learned magistrate expressed her final conclusions as under:-
    "I found Ms Hawkins to be overall a witness endeavouring
    to relate truthfully and carefully events as she recalled them. I
    take into account that her evidence was given following what would
    appear to have been an unjustified, vicious assault upon her by
    the defendant. Ms Haradin and Mr Cooper both impressed me as
    reliable and credible witnesses whose evidence I accept, whose
    accounts do not allow for the defendant's allegations of violence
    against him by Ms Hawkins. On the other hand the defendant did
    not impress me at all. His demeanour was aggressive and he was
    evasive. His evidence conflicted and was inconsistent with the
    record of interview. His account of Ms Hawkins assaults upon him
    I reject as untrue fabrication in an effort to exculpate himself
    from the consequences of his inexcusable assault upon Ms Hawkins.
    I find that he deliberately struck a blow to Ms Hawkins' jaw with
    his clenched right fist causing her to fall to the ground. I find
    that the blow constituted a deliberate and indefensible assault.
    I find the charge proved beyond reasonable doubt." 14. In his notice of appeal the appellant complains that:-,
    "That in all the circumstances, the Learned Special
    Magistrates' verdict of guilty is both unsafe and unsatisfactory.
    In particular:
     (a) the Learned Special Magistrate erred in preferring the
    evidence of the alleged victim in the matter and failed to give
    any or any sufficient weight to untruths and inconsistencies in
    her evidence.
     (b) the Learned Special Magistrate erred in finding that the
    defendant's demeanour was aggressive and he was evasive in
    evidence.
     (c) the Learned Special Magistrate erred in placing extra weight
    on the evidence of the witness Annette Haridan because of her
    'experience unusual to the average "passer-by"' and in finding her
to be 'very definite' in what she saw." 15. He also sought an extension of time within which to bring the appeal, which was not filed until 22 June 1993, the learned magistrate having recorded a conviction against him on 11 May 1993. I granted that extension at the outset, because it appeared that delay had been experienced in obtaining a copy of the reasons for decision published by the learned magistrate. 16. In the course of her submissions Ms Griffith, of counsel for the appellant, subjected the reasons of the learned magistrate to close analysis and argued that, in certain respects, they either involved some circuity of reasoning, or were not entirely consistent with the effect of the evidence. 17. As to this it must be pointed out that these were ex tempore reasons and must be read as such. As has so often been said before it is quite inappropriate to subject such reasons to close scrutiny and analysis as if they represented careful and considered reasons drafted after reservation of judgment and a lengthy and leisurely review of all of the evidentiary material. No doubt there are some less than felicitous expressions or summations contained in the document, but what is important for present purposes is the essential substance of the reasoning and findings made. 18. The learned magistrate was confronted with various conflicts of evidence related to what clearly was a kaleidoscopic situation, which developed quite rapidly and was seen by various persons from differing perspectives; and who were endeavouring to recollect fine details of events which had occurred some fourteen months earlier. Moreover, given the important differences between the appellant and Ms Hawkins, questions of relative reliability and credibility necessarily arose. 19. At the end of the day the learned magistrate clearly preferred Ms Hawkins as a much more credible and reliable historian than the appellant as to various important aspects of narrative fact (although she did not accept all of her testimony) and considered that the substance of what she said derived significant support from the two independent witnesses. By way of contrast she was less than impressed by the appellant as to certain important features of his evidence, which fell to be contrasted with his own record of interview and the fact that some aspects of it could not be reconciled with the evidence of the independent witnesses. 20. As to this I am in a position of permanent disadvantage, by way of contrast with the learned magistrate, and on well settled bases of principle, ought not to interfere with her assessments of the witnesses unless there are truly suasive and compelling grounds, such as manifest error, for so doing. (These were recently reiterated by the High Court in Louth v Diprose (1992) 67 ALJR 95, particularly at page 106.) 21. So far as the appellant is concerned the evidence which he gave before the learned magistrate was inconsistent, in important respects, with the version of his interaction with Ms Hawkins which he gave in his formal record of interview. Moreover it could not stand with an acceptance of the evidence of the independent witnesses - notably with the testimony of Ms Haradin. 22. As Mr Stevens, of counsel for the respondent stressed, what was said by Ms Haradin (as recorded at pages 30 and 31 of the transcript of evidence) is simply impossible to square with a considerable sequence of events which, the appellant claimed, took place in a very short time frame and is summarised at page 20 of the appeal transcript. Moreover, so also was Ms Haradin's perception of the spectacle of Ms Hawkins on her back against a wall, with the appellant then advancing to and standing over her in what appeared to be a threatening manner and then appearing to advance at Ms Haradin herself (transcript pp32, 36). 23. Additionally the appellant's evidence (transcript p64) of being doubled over for an appreciable space of time, having allegedly been kicked "in the balls" by Ms Hawkins, is also inconsistent with the sequence of events narrated by him. 24. It is small wonder that the learned magistrate was not disposed to accept the appellant as a reliable and credible historian and that she opted for Ms Hawkins' version as being essentially accurate, save to the extent that she otherwise indicated. 25. As I pointed out to Ms Griffiths in the course of argument, quite apart from the above aspects and even if much of what the appellant himself said was accepted, that does little to advance his case. At best from his point of view, he did not hesitate to enter into an unseemly fracas with Ms Hawkins, which was of the nature of a struggle or fight between them, in the course of which each committed unlawful assaults on the other (as to which see R v Bird
(1985) 1 WLR 816, R v Williams (1990) 50 A Crim R 213). 26. No reliance was placed by the appellant on the concept of self defence, either at first instance or on this appeal. Ms Griffiths was constrained to assert that the appellant had not intended to strike Ms Hawkins in the jaw - that the blow with his clenched fist (be it a mere push or a punch) was accidental. 27. All that need be said about that is that any objective review of the evidence indicates such a possibility to be fanciful. Even the appellant's own evidence, taken at face value, is against such a proposition. At page 62 of the transcript, having described a series of assaults upon his person, he concedes that he pushed out blindly "and all my focus was taken up by my right hand connecting with her jaw". 28. Given the melee which, he says, occurred and no claim of self defence, his striking of Ms Hawkins was, in any event, an unlawful assault, albeit that she may also have assaulted him. 29. It seems to me that, not only is there no proper basis for interfering with the conclusions of the learned magistrate, but that a finding of common assault was virtually inevitable in the circumstances. 30. The appeal must be dismissed.