Trocko v Police No. Scgrg-98-28 Judgment No. S6551

[1998] SASC 6551

TROCKO V POLICE

Magistrates Appeal

Lander J

The appellant was charged that on 27 July 1997 he assaulted Michelle Lee Robertson thereby occasioning her actual bodily harm.

He pleaded not guilty but on 17 December 1997 he was convicted in the Magistrates Court sitting at Holden Hill.  He was sentenced to be imprisoned for a period of seven months cumulative upon a sentence he was then serving of four years and six months which had been imposed five days earlier for dishonesty offences.  In relation to those offences, a non parole period of eighteen months commencing from 16 September 1997 had been set.

The learned Magistrate was obliged to review the non parole period and he did so by extending it for a period of two months thereby making the non parole period twenty months commencing from 16 September 1997.

The order from which the appeal was brought was made on 17 December 1997.  The Legal Services Commission did not confirm funding for the appeal until 30 December 1997 and a fees remission certificate in respect of the filing fee for the appeal was not received by the appellant from the Legal Services Commission until 7 January 1998.  The appeal was then filed the next day.

Rule 96C of the Supreme Court Rules provides that an appeal brought pursuant to s42 of the Magistrates Courts Act shall be instituted within fourteen days of the making of the judgment.

The delay in this appeal is not great.  The appellant had to contend with obtaining funding from the Legal Services Commission and obtaining a certificate of admission of fees over the Christmas/New Year period.

Because of the number of holidays during that period it was more difficult for the appellant to comply with the time limits prescribed by the Rules and I think in those circumstances it would be appropriate to excuse him from his failure to institute the proceedings within the appropriate time.

I extend the time within which to appeal until  8 January 1998.

The complainant and the appellant became friendly after the complainant moved into her unit in October 1996.  They occupied separate units within the same complex of units at 6 Tullamore Court, Greenwith.

It is clear from the evidence that over the period of time until the date of the alleged incident the complainant and the appellant had a stormy relationship which was in part caused by both of them drinking alcohol to excess.  On the complainant’s evidence they used to drink together about five times a week and drink to the point of intoxication.

The complainant’s evidence was that on 27 July, whilst she was in the bedroom of the appellant’s unit, she was assaulted by the appellant when he slapped, hit and punched her to the face.  The complainant said that the appellant inflicted serious and extensive injuries to her face including a particularly serious injury to her right eye.

She said she was struck on about nine occasions and notwithstanding her pleading the appellant refused to stop.

She said she took no steps to defend herself.  She remained sitting whilst he hit her.  When the appellant stopped hitting her and went to the bathroom she escaped from his unit and locked herself in her unit and remained there until the police, whom she rang, arrived.

She was then taken by the police to the Modbury Hospital where her injuries were examined and dressed.  She said she suffered a blood clot in the right ear and that her eardrum was broken by the assault.  She said she suffered extensive bruising to the right side of her face and particularly the right eye.  She said she had been having ongoing treatment up until the date of the trial in relation to the injuries to her eye and ear.

Photographs were tendered which confirmed the very extensive bruising to her face.  The photographs show the right eye almost completely closed and extensively bruised above and below the eye.  There was also evidence of a significant cut on the right side of the nose.  The photographs are consistent with a very serious assault to the face.

The prosecution case was quite uncomplicated.  It was that the appellant had, without any particular reason, deliberately and seriously assaulted the complainant shortly before the police attended

The complainant was extensively cross examined.  It was put to her that she had complained of a previous assault by the appellant.  It was suggested to her that the injuries of which she complained she had previously said had been inflicted on an earlier occasion by the appellant.

It was put to her that she had been previously involved in a motor vehicle accident as a result of which she had suffered brain damage resulting in memory loss.  It was also put to her that on this occasion she was intoxicated. 

It was suggested to her that as a result of the previous accident, the intake of alcohol and her general lifestyle that she was confused and was an unreliable witness.

The cross examiner exposed some inconsistencies on the part of the complainant between her evidence at trial and a previous statement given to the police.  The complainant, however, did not resile from her complaint that shortly before the police arrived in the early hours of 27 July 1997 she was subject to an unprovoked and serious assault.

The appellant did not give evidence nor did he tender any other evidence.

The police did, however, tender in the prosecution case, a video tape record of an interview between police officers and the appellant.

The appellant admitted that the victim had been at his premises on the evening of the 26th and in the early hours of the 27th July and that the complainant had been in the bedroom with him and that they had been drinking together.  It was put to him that she had alleged that he had assaulted her.  In response to that allegation he said that he could not remember any such assault.  He did not deny that he assaulted her but simply said that he was unable to remember any such assault.

The learned Magistrate said of the complainant that she did her best to tell the court what had happened and he accepted her as a witness of truth.  The learned Magistrate was in a far better position than this Court could ever be to determine whether the complainant was telling the truth and to assess her credibility and reliability: Devries v Australian National Railways Commission (1993) 177 CLR 472.

There was, however, objective evidence supporting the complainant’s account.  There was the evidence given by the police officers, finding her in the condition described, and there was the evidence depicted in the photographs showing extensive bruising consistent with a serious assault of the type and nature of which she complained.  There was the further evidence of Doctor Wheeler, who examined the appellant at about 3:00 am on 27 July at the Modbury Hospital, and described her injuries in terms consistent with the photographs and offered the opinion that her injuries appeared consistent with an assault.

The grounds of appeal to this Court against the entering of the conviction are that the learned Magistrate erred in that His Honour (a) failed to correctly direct himself as to the onus and quantum of proof and had no sufficient regard to the presumption of innocence; (b) placed undue weight on the defendant’s failure to give evidence and failure to deny the relevant allegations in a record of interview; (c) failed to properly direct himself as to, or consider, or appreciate, the inconsistencies and infirmities and the unsatisfactory nature of the prosecution case.

The appellant addressed a number of features of the prosecution case and the complainant’s evidence.  First, counsel for the appellant identified a number of matters not answered in the evidence of the prosecution: the fact that no one gave evidence that they heard any of the events on this night and particularly noise from the appellant’s unit; the lack of evidence in the appellant’s unit of any signs of an assault and in particular the absence of blood and of an ornament of an eagle, which was said by the complainant to be broken in the assault; the absence of blood on the accused or on his clothes; and the absence of any marks on his hands.  It is correct that there was no evidence of those matters.  The evidence of Constable Clarke was that they went through the appellant’s unit and saw nothing relevant to an assault.  It was, however, a substantial time after the assault that the police officers attended at the appellant’s unit and it was only after half an hour of knocking that the appellant answered the door.  There was simply no evidence whether or not he had cleaned the unit, picked up the broken ornament, changed clothes or cleaned himself.  In those circumstances I think the absence of that evidence is not such as to render the verdict unsafe.

Secondly, the appellant complained that having regard to the unsatisfactory nature of the complainant’s evidence, the learned Magistrate should not have been satisfied beyond reasonable doubt that the charge had been made out.  It was put that there were a number of inconsistencies in the complainant’s evidence. 

It was pointed out that the complainant said in evidence in chief that her cheekbone was smashed.  In cross examination she was led into saying that it was fractured or something.  It was put to her that she had said that her cheekbone was smashed when in fact it was not.  She said that is just a word.

I must say I do not believe her evidence on this matter is unreliable.  I believe that she used the word smashed to indicate the severity of the blow not anything more.  In cross examination it is clear enough that she was emphasising the pain.

Initially she said she was probably slapped but shortly after her evidence was that the blows were all punches.

I am not sure that is a matter of any moment.  Her evidence initially was to understate the assault. 

She said in evidence in chief she was grabbed by the throat.  In cross examination she admitted she probably did not tell the police or the doctor that.

Her evidence in relation to the ornamental eagle breaking reveals some inconsistency.  Initially she said it was smashed then she said she did not see it break.

So also her evidence in relation to the telephoning of the police.  She said in evidence in chief she rang the police twice from her unit.  The second time after the appellant came to the unit.

She was pressed on this subject in cross examination and her statement to the police in which she said that the appellant caught her outside her unit, she screamed and that he returned to his unit, was put to her.  She agreed that what was in her statement was more likely to be correct.

There is an inconsistency between her evidence and her statement to the police.  She did not, in her evidence, say that the appellant had assaulted her as she was moving between units.  The omission of that evidence cannot be overlooked.  However, I do not believe that the absence of that evidence supports a finding that her evidence that he came to her unit as a result of which she made the second telephone call is unreliable.  I think that evidence can still be accepted.  The evidence is consistent with the police log in that two calls were made a short time apart.  The fact of two calls is consistent with ongoing fear and concern.

Her evidence in relation to an earlier episode became confused.  Ms Brown argued that the only explanation for that inconsistency is that the complainant was untruthful.  I do not agree with that submission.  I think her evidence exhibits genuine confusion which arises out of the melding of the details of two separate incidents, which occurred close in time.

The confusion does not affect her reliability in relation to the incident itself.

It is the fact that there are some inconsistencies in detail of her evidence.  However, they are not such that this Court should interfere with the positive findings of the learned Magistrate in relation to her credibility and reliability.

It is also true to say, as was put by Ms Brown, who appeared for the appellant, that in cross examination the complainant expressed many of her answers in qualified form: “That probably happened; I suppose that happened; That’s how it would have been.”  She used the word probably often in answering the cross examiner.  I think, however, and so obviously did the learned Magistrate, that she was not qualifying her answers but that she answered in the way that she did as a matter of style only.  I think on the matters upon which she had to be unequivocal, she gave her evidence without any real hesitation.

The appellant also complains that the learned Magistrate did not direct himself appropriately in respect of the hypothesis that some other person or persons may have committed this assault.  It was put that there was evidence that the complainant associated with criminals and had been assaulted by one some years earlier.  The complainant admitted in cross examination that she had previously been assaulted by a man, whom she used to visit in gaol.  Her evidence was that she had not seen that man for years.  There was no suggestion that he was anywhere near the units that night.  It was also put that she associated with other men of doubtful character and that two of them lived with her from time to time.  Again, however, there was no evidence or any suggestion that any of these persons were anywhere near the units that night.

There was nothing to erect the reasonable hypothesis that the complainant was assaulted by someone else at her unit either before she visited the appellant or after that time.

There was sufficient evidence, in my opinion, for the learned Magistrate to have reached the conclusion beyond reasonable doubt that the complainant had been the subject of an assault at the hands of the appellant of the kind that she recounted.

I do not believe that the learned Magistrate misdirected himself as to the presumption of innocence or as to the onus of proof.  Nor do I think that he placed undue weight on the appellant’s failure to give evidence.  He mentioned that the appellant had not given evidence and he mentioned, as I have recounted, that the appellant had not denied the assault when interviewed by police officers but that he had simply said that he was unable to remember the incident.  In the circumstances where the appellant had no memory of the incident his failure to give evidence was of little moment.  The fact of the matter was, however, that the learned Magistrate had to be satisfied beyond reasonable doubt upon the evidence that had been adduced that the appellant had committed the assault occasioning grievous bodily harm.

At the hearing the appellant sought and was granted leave to add a further ground of appeal:

“1(d) The learned Magistrate erred in that His Honour failed to properly direct himself as to the effect of intoxication on the accused.”

No complaint was made of his direction to himself in relation to the effect of intoxication on the complainant, except in so far as a general complaint was made of her evidence. 

Counsel did not raise the matter of intoxication in any way at trial (Ms Brown did not appear at the trial).  The learned Magistrate did not advert to the question of whether the appellant was so intoxicated that he was prevented from forming an intention to commit the assault.  Notwithstanding the failure of counsel to address the issue of intoxication the learned Magistrate should have applied his mind to the matter.

In so far as complaint was made that the learned Magistrate failed to direct himself as to the intoxication of the accused the argument went only to the question of whether it was established that the accused formed the necessary intent.

There was evidence that both the complainant and the appellant had been drinking and that they were both intoxicated.  She said they had consumed three quarters of a cask of wine.  She said that before the incident each could understand each other.  She could not speak for the appellant as to his understanding.  The best she could say was what she observed of him.

There was the general evidence of the complainant that a considerable amount of alcohol had been drunk but there was no precise evidence of the drink the appellant had consumed.  There was no evidence, apart from that general evidence, of the effect of the alcohol upon the appellant.  There was no evidence from which it could be inferred that the appellant was not capable of forming an intention to assault.  There was no evidence that he did not know what he was doing.  There was evidence that he said that he had no memory of the assault but that evidence was not capable of allowing it to be inferred that the appellant was so much affected by alcohol that he did what he did without forming the necessary intention.

Whilst there was evidence of intoxication it did not raise the reasonable possibility that the appellant was so intoxicated that he was incapable of forming an intention to commit this offence. 

There was sufficient evidence for the learned Magistrate to have reached the conclusion at which he arrived.  Indeed for myself I would have reached the same conclusion.

The appellant appealed against the sentence, which he said in the circumstances was manifestly excessive, but the appeal against sentence was abandoned.

In my opinion the appeal against conviction should be dismissed.