Tucker v Police - [2004] SASC 239

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TUCKER v POLICE
Judgment of The Honourable Justice White
13 August 2004
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - OTHER CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
GENERAL PRINCIPLES

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS
OTHER MATTERS
Appeal against conviction - Appellant convicted of assault - Appellant denied his presence in an initial interview with police - At trial, appellant said he was present but did not assault the victim - Interview not conducted in accordance with requirements of Summary offences Act, s 74D - Record of interview of police interview tendered by consent - Waiver of right to object to tender of record of interview - Although under Summary Offences Act, s 74E, breach of s 74D results in exclusion of evidence, onus lies on accused to object - No miscarriage of justice occurred - Duty of Magistrate to explain reasons - Reasons adequate - No grounds to interfere with Magistrate's findings of fact with respect to credibility - Advantage experienced by Magistrate in observing witnesses - Appeal dismissed.
Magistrates Court Act 1991, s 42; Criminal Law Consolidation Act 1935, s 40; Summary Offences Act 1953, s 74D, s 74E; , referred to.
Coulstock v The Queen (1998) 99 A Crim R 143; Salem v The Queen (1997) 96 A Crim R 421; C v The Queen (1997) 93 A Crim R 81; R v Osborne [2003] TASSC 17; R v Scott (1996) 131 FLR 137; Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68; Rowland v Police (2001) 79 SASR 569; Abalos v Australian Postal Commission (1990) 171 CLR 167; R v Blayney and Blayney (2002) 202 LSJS 102, applied.
Papastamatis v Police (2003) SASR 241; Graham v The Queen (1998) 195 CLR 606; SS Hontestroom v SS Sagaporack [1927] AC 37; Harwood v Police (1998) 71 SASR 300; Nash v Berton [2001] SASC 94; Pledge v Roads and Traffic Authority (2004) 205 ALR 56; (2004) 78 ALJR 572; Fox v Percy (2003) 214 CLR 118, considered.

TUCKER v POLICE
[2004] SASC 239
WHITE J
Introduction

This is an appeal against conviction, brought pursuant to s 42 of the Magistrates Court Act 1991.
On 20 February 2004, a Magistrate found the appellant guilty of assault occasioning actual bodily harm, contrary to s 40 of the Criminal Law Consolidation Act 1935. The Magistrate sentenced the appellant to nine months imprisonment, but suspended that sentence upon the appellant entering a bond in the sum of $200 to be of good behaviour for a period of two years. The Magistrate imposed conditions on the bond including a requirement that the appellant perform 75 hours of community service.
The events giving rise to the charge occurred on the evening of 6 June 1999, in Hope Valley. Anthony Molloy was driving north along Kendall Road, in his Ford Fairlane sedan. His wife, Janette Molloy, was sitting in the front passenger seat of that car. Kendall Road is a reasonably steep road, and Mr Molloy was driving uphill.
At the same time, the appellant was walking north along Kendall Road. He was walking on the road rather than the footpath, because the footpath was slippery and steep. Mr Molloy’s car struck the appellant. The part of the car that struck the appellant was the left hand side, between the centre and the back of the car.
The assault alleged against the appellant occurred in the circumstances which followed.
The Crown Case at Trial
Three witnesses were called for the prosecution.
Mr Molloy testified that, as he drove along Kendall Road, near Altair Street, he heard a loud bang from the rear of the left-hand side of his car. At that time, he did not know what had caused the bang, so he stopped his car about 15 to 20 metres further up the road, and began to get out to see what had happened. As he opened the car door and began to get out, Mr Molloy saw the appellant run out from behind the car, yelling “you idiot”. The appellant ran up to Mr Molloy’s driver’s-side door.
According to Mr Molloy, the appellant grabbed him by the shirt, then punched him six or more times in the chest and head area. Mr Molloy attempted to fend off the blows with his left arm. After the appellant stopped punching, he turned and began to walk a few paces away, up the hill. Mr Molloy said to him, “You idiot. I know you. I know where you live.”
The appellant replied, “Yeah, I know you and I know where you live”. With that, he came back to the car and, with what was described by Mr Molloy in his evidence as “a kickboxing action”, the appellant kicked Mr Molloy several times in the stomach, chest and left shoulder, using his left foot. The appellant then walked up to Mrs Molloy and stared at her from a short distance for a short time, before walking away, up the hill, to the north.
Mrs Molloy gave evidence to much the same effect as her husband, although differing in some minor respects. Generally, Mrs Molloy was not able to recall events quite as clearly as Mr Molloy, being more uncertain of details such as distances, the number of times the appellant punched Mr Molloy, and the foot with which the appellant kicked Mr Molloy.
Mrs Molloy testified that she stood at the rear of the car during the alleged assault, and had a clear view of the incident. After the appellant had kicked Mr Molloy he began to walk up the hill again, and Mrs Molloy shouted, “You’re walking on the wrong side of the road with dark clothes on”. In cross-examination, Mrs Molloy agreed that she might have said, “What do you expect, wearing dark clothing and walking on the same side of the road?”
According to Mrs Molloy, the appellant then ran back to her, stood right next to her and looked her in the face. The appellant then walked north up the hill again. As he left, he said, “How much drink have you two got in you?”
Dr Czechowicz was the doctor who examined Mr Molloy on the day after the alleged assault. He testified that Mr Molloy had complained of being unable to lift his arm beyond about 30 degrees (90 degrees being horizontal to the ground). Dr Czechowicz ordered an ultrasound, which showed a tear of the capsule surrounding the left shoulder joint.
Dr Czechowicz considered that Mr Molloy’s injuries were consistent with being kicked forcefully in the shoulder. In cross-examination, Dr Czechowicz accepted that it was possible, though not probable, that the injury had been caused by a fall, as a result of Mr Molloy attempting to throw punches, or as a result of him grabbing the appellant by the neck.
The Defence Case at Trial
The appellant and his wife, Rita Tucker, each gave evidence.
The appellant testified that he was hit by Mr Molloy’s car and was knocked onto the footpath. He saw the car, as it struck him. The car stopped further up the hill, close to the intersection of Kendall Road and Grand Junction Road, and about 130 feet from the site of the collision. The appellant “hobbled” up to the car, because he was in pain. By the time the appellant reached the vehicle, both Mr and Mrs Molloy were out of the car, and both were standing near the rear of the car.
As the appellant approached the car, he said, “Are you drunk or something? I ought to sue you.” He approached Mr Molloy, moving to within a metre of him, and again asked whether he was drunk. The appellant testified that Mr Molloy then lunged at him, “grabbed me around the throat with both hands and began to throttle me”. The appellant moved around to the high side of the road, so that Mr Molloy was now downhill from him. He was then able to break Mr Molloy’s grip, by putting his hands up between Mr Molloy’s arms, and forcing them apart. At no stage, said the appellant, did he grab, kick, or hit Mr Molloy.
After breaking Mr Molloy’s grip, the appellant put his left foot up to prevent the appellant approaching him again. He said that it was a lifting movement, rather than a kicking movement and that he had never be trained in kickboxing. The appellant denied that he turned back to Mr Molloy and kicked him. He also denied staring at Mrs Molloy.
The appellant gave evidence that, after the incident, he told his wife, Rita Tucker, about the altercation. She told him that he should contact the police but he decided not to do so.
Mrs Tucker gave evidence that, upon returning home after his walk on 6 June 1999, the appellant told her that he had been involved in an altercation. The details of the incident, as described to Mrs Tucker, accorded generally with the evidence which the appellant ultimately gave in the trial. The evidence of what the appellant said to Mrs Tucker was hearsay, and a previous consistent statement of the appellant. Ordinarily such a statement would be inadmissible. However, Mrs Tucker’s evidence as to what her husband told her was elicited in cross-examination. There was no objection by the appellant to that questioning.
The Appellant’s Interview by Police
The appellant did not contact the police about the incident.
Following a report to the police by the Molloys (on 6 June 1999), the police spoke to the appellant on 14 October 1999. A written record of that interview was tendered by the prosecution by consent. At the time of the tender it was expressly agreed between the parties that the Magistrate could use the record of interview as evidence of the matters stated therein.
In cross-examination, the appellant estimated that between 14 months and 18 months elapsed between the incident and the police talking to him, but accepted that it was possible that he was interviewed only four months after the incident. When questioned by the police about the alleged assault, the appellant said, “I can’t tell you anything about this because it wasn’t me, I wasn’t there.”
The appellant was asked in the police interview whether he could remember any altercation with any person in the four months before the interview, to which he responded that he had not been involved in any altercation for the last two years. He said in evidence that he did not class the incident as an “altercation”. In his evidence, the appellant explained that he did not mention the incident because he saw himself as the victim and did not want to take the matter to court.
The police also asked the appellant if he could explain why he would have been nominated as the person who assaulted Mr Molloy. The appellant replied that he had no idea. The admissibility of that part of the police interview at trial was not challenged, although it perhaps could have been: see Graham v The Queen (1998) 195 CLR 606 at 616-17 [42]-[44] per Callinan J (Gleeson CJ agreeing).
The content of the police interview was put to the appellant in cross-examination, and was accepted by him as accurate.
On appeal, the appellant has raised questions as to whether the evidence of the police interview was properly admitted, having regard to ss 74D and 74E of the Summary Offences Act 1953. I shall return to this question shortly.
The Magistrate’s Findings of Fact
The Magistrate made the following findings in respect of the credibility, and the reliability, of testimony given by Mr and Mrs Molloy:
“Anthony Molloy and Janette Molloy endeavoured to give a truthful account of the incident, the subject of the charge now before the court. There was some inconsistency between their oral evidence in court and the statements they made to the police about the evidence. However that is not unusual in a case such as this. Of the two I was more impressed with Anthony Molloy as a witness. I will accept his evidence in essence. To a lesser extent I was impressed with Janette Molloy. I will accept her evidence in essence where it is not inconsistent with the evidence of Anthony Molloy.”
In relation to the credibility of the appellant, and the reliability of his testimony, the Magistrate made the following findings:
“The defendant and his testimony left me in a state of disquiet. I am satisfied that to a significant extent the defendant was less than truthful when he testified before me. Moreover, to some degree he based his testimony upon a reconstruction of the events, the subject of the charge now before me, rather than upon a reliance on his memory of the incident. I have decided to treat his evidence with caution. In particular I reject his testimony to the effect that Anthony Molloy grabbed him around the throat with both hands and began to throttle him and that he did not kick or punch Anthony Molloy.”
The Magistrate’s findings of fact in relation to the events of 6 June 1999 followed from his analysis of the credibility of the witnesses in the trial. In short, the Magistrate found that the assault as alleged by Mr Molloy had occurred.
The Grounds of Appeal
The appellant argued three principal grounds on appeal: that the Magistrate erred in admitting into evidence the appellant’s police interview, as there had not been compliance with s 74D of the Summary Offences Act and circumstances in which s 74E of the same Act may have permitted its admission into evidence did not exist; that the Magistrate had erred in law by providing inadequate reasons to support his decision; and that the Magistrate had erred in disbelieving the evidence of the appellant when there was insufficient justification for doing so.
Sections 74D and 74E of the Summary Offences Act
Section 74D of the Summary Offences Act provides:
“(1)   An investigating officer who suspects, or has reasonable grounds to suspect, a person (the suspect) of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with:
(a)     if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview must be made;
(b)     if it is not reasonably practicable to record the interview on videotape but it is reasonably practicable to record the interview on audiotape, an audiotape recording of the interview must be made;
(c)     if it is neither reasonably practicable to record the interview on videotape nor reasonably practicable to record the interview on audiotape—
(i)a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and
(ii)as soon as practicable after the interview, the record must be read aloud to the suspect and the reading must be recorded on videotape; and
(iii)when the videotape recording begins (but before the reading begins) the suspect must be invited to interrupt the reading at any time to point out errors or omissions in the record; and
(iv)if the suspect in fact interrupts the reading to point out an error or omission, the suspect must then be allowed a reasonable opportunity to do so; and
(v)at the end of the reading, but while the videotape recording continues, the suspect must again be invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and
(vi)if the investigating officer agrees that there is an error or omission in the record, the officer must amend the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer must nevertheless make a note of the error or omission asserted by the suspect in an addendum to the record of interview.
(2)If the suspicion, or a reasonable ground for suspicion, arises during the course of an interview, the investigating officer's obligations under subsection (1) arise at that point and apply to the interview from that point.
(3)In deciding whether it is reasonably practicable to make a videotape or audiotape recording of an interview, the following matters must be considered:
(a)     the availability of recording equipment within the period for which it would be lawful to detain the person being interviewed;
(b)    mechanical failure of recording equipment;
(c)     a refusal of the interviewee to allow the interview to be recorded on videotape or audiotape;
(d)     any other relevant matter.
(4)As soon as practicable after a videotape or an audiotape recording is made under this Part, the investigating officer must give the suspect a written statement of the suspect's right—
(a)    if a videotape recording was made—
(i)to have the videotape played over to the suspect or the suspect's legal adviser (or both); and
(ii)to obtain an audiotape recording of the sound track of the videotape; or
(b)     if an audiotape recording (but no videotape recording) of the interview was made—to obtain a copy of the audiotape.
(5)Arrangements must be made, at the request of a suspect, for the playing of a videotape at a reasonable time and place to be nominated by an appropriate investigating officer.
(6)A suspect must be provided, on request and on payment of the fee fixed by regulation, with—
(a)     an audiotape of the soundtrack of a videotape recording of an interview with the suspect under this Part; or
(b)     a copy of an audiotape recording of an interview with the suspect under this Part.”
Section 74E provides:
“(1)   In proceedings for an indictable offence, evidence of an interview between an investigating officer and the defendant is inadmissible against the defendant unless—
(a)the investigating officer complied with this Part; or
(b)     the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer's non-compliance.
(2)If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b), the court must—
(a)     draw the jury's attention to the non-compliance by the investigating officer; and
(b)give an appropriate warning in view of the non-compliance, unless the court is of the opinion that the non-compliance was trivial.”
As noted above, the investigating officer interviewed the appellant on 14 October 1999. It is not necessary for me to decide whether it was reasonably practicable to record this interview, as there was non-compliance with s 74D in any event. The investigating officer had interviewed the appellant and had taken notes, as required by s 74D(1)(c)(i), but it was accepted by the respondent that the investigating officer had not read the notes back to the appellant, as required by sub-paras (ii) – (vi) inclusive of s 74D(1)(c).
Given the non-compliance with s 74D, it was submitted that evidence of the interview should not have been admitted against the appellant.
Absence of Objection and Waiver
At the trial, no objection was taken by the appellant to the admission of the record of interview, nor to the cross-examination of the appellant in relation to that interview and its content.
I received on the hearing of the appeal an affidavit from the counsel for the appellant at the trial (who was not the appellant’s counsel on the appeal). The effect of that evidence is that the appellant’s then counsel did not advert to the issue of admissibility which arose pursuant to s 74E, and was content for the record of interview to be admitted “for completeness” and because the appellant had, in any event, an explanation for what he had said. In other words, a conscious decision to consent to the tender of the record of interview was made, albeit without reference to a basis upon which the tender may have been resisted. Furthermore, the appellant’s then counsel does not depose to whether he considers now that, had he adverted to s 74D and s 74E, he would have adopted any different view as to the tender of the document. Clearly enough, the appellant’s present counsel considers that a different view should have been taken.

Although s 74E(1) (putting to one side s 74E(1)(b)) speaks in an apparently absolute way of the evidence being inadmissible against a defendant unless there has been compliance with the requirements of Part 17 of the Summary Offences Act, the objection to admissibility must still be taken by the defendant. It has been held in relation to a comparable provision in the Commonwealth and New South Wales Evidence Acts that the onus lies on the defendant to establish impropriety or illegality before any onus is placed on the Crown to persuade the judge that the evidence should nevertheless be admitted: Coulstock v The Queen (1998) 99 A Crim R 143 at 146 – 147; Salem v The Queen (1997) 96 A Crim R 421 at 429; C v The Queen (1997) 93 A Crim R 81 at 95; R v Osborne [2003] TASSC 17 at [18]. The position is the same, in my opinion, where non-compliance with s 74D is relied upon as the ground for exclusion.
Section 74E(1) does not seem to be an exclusionary provision which is incapable of waiver by the defendant. On the contrary, in R v Blayney AND Blayney (2002) 202 LSJS 102 at 108 [35] per Doyle CJ, it was held that it was open to a defendant to waive the objection to admissibility based on non-compliance with s 74E.
Mr Hinton, counsel for the respondent, submitted that the failure of the appellant to object to the admission of the evidence amounted to a waiver of his right to object. He submitted that the decision about whether or not to object to the evidence was a forensic decision taken during the course of the trial.
In some cases, an accused might take the view that, rather than object, he should allow a police interview, although not recorded in compliance with s 74D, to be tendered. That is particularly so where the police interview contains material which is favourable to the defendant, or where a defendant wishes the statement made when first interviewed to be known to the jury or magistrate, especially where the defendant thinks he has a good explanation for any inconsistencies. Mr Hinton submitted that this case fell into the latter category, the appellant having sought to explain the interview by saying that he was not a “dobber” and did not want the matter to end up in court.
Mr Lister conceded that the objection had been waived albeit, he suggested, through the ineptitude of counsel at the trial. I agree that the failure of the appellant’s counsel to object to the tender of the record of interview does constitute waiver. In fact, not only was there a waiver, there was consent to the tender of the record of interview and agreement that the document could be used as evidence of the matters stated in it.
Even though that is so, the public interest in a fair trail of an accused person is always a primary consideration in a criminal case. It is therefore necessary to consider whether the failure of the appellant’s counsel to object, and the consent, has resulted in a miscarriage of justice. Doyle CJ, in R v Scott (1996) 131 FLR 137 at 151, summarised the relevant principles as follows:
“It appears now to be settled that, when it is sought to set aside a conviction on the ground that counsel at trial acted incompetently or contrary to instructions, the crucial question to be argued is not the incompetence of counsel but whether a miscarriage of justice resulted at trial. The issue of miscarriage of justice has to be considered in the light of the role of counsel, the fact that ordinarily a client is bound by the decisions of counsel and in the light of the wide discretion which counsel has as to the conduct of the trial.”
See also, in the context of an appeal from a magistrate’s decision, Papastamatis v Police (2003) 85 SASR 241 per Duggan J. Claims that a finding should be set aside because of error by counsel at trial must be approached with caution.
In determining whether a miscarriage of justice has occurred in this case, it is appropriate to have regard to a number of matters. I have already referred to the fact that counsel made a conscious decision to consent to the tender. This is not a case of mere oversight.
Secondly, counsel’s decision was made in a forensic context having regard to a number of considerations. Even now, counsel does not assert that he would, or should, have made a different decision.
Thirdly, even if an objection had been taken, s 74E(1)(b) would have allowed for the admission of the evidence obtained in non-compliance with s 74D, if “the court [was] satisfied that the interests of justice require the admission of the evidence despite the investigating officer's non-compliance.” It is by no means obvious in this case that the record of interview would not have been received into evidence pursuant to s 74E(1)(b).
Fourthly, in the present case, it was not disputed that the interview had taken place, nor that the content of the interview was as alleged. In fact, as it transpired, the appellant gave evidence on oath at trial that the interview did occur, and that his statement was accurately recorded by the investigating officer. It is true that, at the time when the evidence of the interview was admitted, the Magistrate did not know whether or not the appellant accepted the record of interview as true and correct. However, given the appellant’s acceptance of the record in cross-examination, I do not consider that this can affect my assessment, on appeal, of whether there had been a miscarriage of justice.
Mr Hinton also submitted that the breach of s 74D was trivial. As this trial was before a Magistrate sitting alone, rather than by jury, s 74E(2)(b), under which it is necessary to consider whether the breach is trivial, was not brought into play. It is, therefore, unnecessary for me to express any concluded opinion about that question, and I refrain from doing so.
Mr Lister also submitted that, the evidence of interview having been admitted, it was not clear how the Magistrate had used that evidence in making his findings of fact. Mr Lister submitted that the untruth told by the appellant when interviewed could potentially be used in two ways. First, it could be used as going to the credit of the appellant. Secondly, it could also be used as evidencing a consciousness of guilt on the part of the appellant. Put another way, the appellant’s untruth could be used as evidence corroborating the version of events put forward by the Molloys. Mr Lister submitted that the former would be a permissible use, the latter an impermissible use.
As it happens, the Magistrate did not refer to the inconsistencies between the record of interview and the evidence at trial at all. One cannot be absolutely confident as to the use which he did make of the inconsistencies. There is nothing to indicate that he regarded the appellant’s untruths as evidence of a consciousness of guilt. The Magistrate’s conclusion as to the appellant’s credibility quoted above suggests that the inconsistencies were used in a conventional way, ie, as undermining confidence in the reliability of the appellant’s evidence.
Having regard to all these matters, I am not satisfied that there has been a miscarriage of justice resulting from the consent to the admission into evidence of the record of interview.
The ground of appeal relying upon ss 74D and 74E is not made out.
The Duty of the Magistrate to Explain his Reasons
The appellant complains that the Magistrate failed to explain adequately his reasons for the findings as to credit set out above. In particular, the appellant complains that the Magistrate failed to explain how he came to the view that Mr and Mrs Molloy each endeavoured to give a truthful account of the incident, and to explain why Mr Molloy was a more impressive witness than Mrs Molloy. In relation to the appellant’s evidence, it is said that the Magistrate failed to explain why he found that the appellant was less than truthful and that he had, to some degree, based his testimony upon a reconstruction of the events rather than upon his memory of them.
This Court has held that the failure of a court at first instance to provide adequate reasons for a decision which is subject to appeal amounts to an error of law: Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68; cf Rowland v Police (2001) 79 SASR 569 at 572 [26] per Perry J.
It is appropriate to bear in mind that the Magistrates Court is a court of summary jurisdiction and that the workload on magistrates is heavy: Rowland v Police (2001) 79 SASR 569 at 572 [29]-[30]. Particularly relevant to the present appeal are the comments of Doyle CJ in R v Keyte (2000) 78 SASR 68 at 81 [56]:
“I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.”
Whilst a “detailed explanation” is not required, some explanation is necessary, as the decisions in Harwood v Police (1998) 71 SASR 300 and Nash v Berton [2001] SASC 94 show.
The reasons given by the Magistrate in the present case were quite brief. Whilst it may have been preferable for the Magistrate to give at least a little more detail, I do not think that they can be said to have been inadequate. The Magistrate has made it clear which witnesses he accepted as truthful, and his summary of the evidence indicates that he has had regard to what was said by each witness. The Magistrate mentions one factor in particular as giving rise to disquiet about the appellant’s evidence, namely, the impression of reconstruction rather than reliance on actual memory. There is material in the evidence of the appellant which justifies that conclusion.
I am not satisfied that this ground of appeal is made out.
Approach to the Assessment of Witness’ Credibility
The appellant complains that the Magistrate erred in the approach which he took in assessing the credibility of the witnesses. It is said that no attempt was made to assess the effect on credibility of inconsistencies, both between Mr Molloy’s account and Mrs Molloy’s, and between the evidence at trial and the account given to police. This submission should be rejected. That the Magistrate did consider the effect of these inconsistencies is demonstrated by his comment that “this is not unusual in a case such as this”. The Magistrate’s comments make it clear, I think, that he did not consider that those inconsistencies significantly affected the reliability of the Molloys’ evidence.
The finding that, where there were inconsistencies the evidence of Mr Molloy was to be preferred to that of Mrs Molloy, was justified, given that Mrs Molloy said, on several occasions, that she was unable to remember certain details of the incident.
The Magistrate’s finding that the appellant was not a witness whose testimony should be relied upon was open on the evidence before him. The appellant’s statement to the police that he was not present, and knew nothing about the incident in Kendall Road, was inconsistent with the evidence he gave at the trial. His total denial of the incident to the police and change of account at trial raised serious doubts about the appellant’s credibility.
The principles which govern appeals in relation to findings of fact by the primary trier of fact are well known. Abalos v Australian Postal Commission (1990) 171 CLR 167, McHugh J, with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed, quoted with approval the following passage from the judgment of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47:
“[N]ot to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.”
The principle in Abalos has recently been confirmed by the High Court in Pledge v Roads and Traffic Authority (2004) 205 ALR 56; (2004) 78 ALJR 572 and Fox v Percy (2003) 214 CLR 118.
In this case, the Magistrate made specific findings as to the credibility of each of the witnesses. I consider that the substance of the evidence, coupled with the advantage enjoyed by the Magistrate in seeing and hearing the witnesses first hand, is clearly capable of justifying his conclusion that the evidence of Mr Molloy was to be preferred to that of the appellant.
The appellant also complains that the Magistrate’s acceptance of Mrs Tucker’s evidence is not consistent with his disbelief of the appellant’s account and demonstrates that the Magistrate erred in preferring Mr Molloy’s version of events. However, there is no logical inconsistency between the accounts of Mrs Tucker and Mr Molloy. The Magistrate’s acceptance that the appellant reported a certain version of events to his wife on the evening of the incident does not negate the Magistrate’s finding, in effect, that somewhat different events had in fact occurred.
Given the advantages which the Magistrate enjoyed in hearing each of the witness’ testimony first hand, as well as the other considerations to which I have already referred, I do not think it is possible to conclude that the Magistrate erred in rejecting the appellant’s evidence, while accepting that of Mr and Mrs Molloy.
Conclusion and Order
The appeal is dismissed.