Vandenberg v Police
[2011] SASC 54
•20 April 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VANDENBERG v POLICE
[2011] SASC 54
Judgment of The Honourable Justice Nyland
20 April 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED
Appeal against conviction for assault - finding by Magistrate that complainant truthful - inconsistency between evidence of complainant and evidence of injuries - failure by Magistrate to assess reliability of evidence of complainant in light of inconsistencies - failure of Magistrate to appreciate significance of evidence of defence witness - appeal allowed - conviction set aside and matter remitted to Magistrates Court for re-hearing.
Criminal Law Consolidation Act 1935 (SA) s 20(3), referred to.
Fitzgerald v Police [2002] SASC 202; M v The Queen (1994) 181 CLR 487, considered.
VANDENBERG v POLICE
[2011] SASC 54
NYLAND J: This is an appeal against conviction. The appellant was charged on information with the assault of DMC (“the complainant”) alleged to have been committed at Craigmore on 11 October 2009, contrary to s 20(3) Criminal Law Consolidation Act 1935 (SA) (“CLCA”).
The Information alleged this to be an aggravated offence, as the appellant committed it knowing that the victim was his former domestic partner. The appellant was also charged on the same information with four counts of breaching bail, those breaches involving the appellant contacting the complainant on 7, 8, 10 and 11 October 2009 in breach of a bail agreement entered into on 23 September 2009.
The appellant subsequently appeared before a Stipendiary Magistrate in the Elizabeth Magistrates Court. On 14 July 2010 he pleaded guilty to the breach of bail charges but not guilty to the charge of assault. On 2 December 2010 following trial, the learned Magistrate found the appellant guilty of the assault charge. Although the complainant gave evidence that she and the appellant had cohabited from time to time, there was no evidence before the learned Magistrate as to the periods during which the two were together. As a result, the Magistrate was not prepared to find proved the aggravating circumstances alleged by the prosecution.
Prosecution case
The principal witness for the prosecution was the complainant. Her evidence was that she had been in a de facto relationship with the appellant for a period of about five years as at the time of these events and they had cohabited for a period of about two years. She said that the appellant arrived at her home at approximately 7.15 am on 11 October 2009. He was intoxicated and upset and had a black eye and a cut on his face near his eye. She told the appellant she would see him later that day as she did not want her daughter, who was inside the house, to be disturbed. At about lunch time that day the complainant and the appellant met while the complainant was exercising her dog. After a short conversation, the complainant agreed to follow the appellant back to his house.
She described the house as being in disarray and the appellant told her that he had been on a nine-day drinking binge. She said there was a split glass table top in the lounge room and the appellant told her that was where he had fallen and cut his eye. The complainant said she cleaned up some of the house and also attended to some of the appellant’s injuries. She then went out and purchased some food which included some hot chips. She said that when she returned the appellant was making a phone call to his mother. The complainant then spoke to the appellant’s mother on the telephone. The conversation appears to have become somewhat acrimonious. The complainant said she became upset and hung up. She said the appellant then abused her for the way in which she had spoken to his mother, following which the appellant assaulted her by:
·throwing chips at the complainant;
·grabbing the complainant around the throat;
·attempting to and punching her about the head;
·smashing the complainant’s head into a brick wall;
·pulling out the complainant’s hair;
·scratching and punching the complainant with an upper cut to the sternum.
The appellant said eventually she escaped and later attended at the local police station to make a complaint.
The only other witness for the prosecution was Senior Constable Lienert. She was on duty at the Elizabeth Police Station when the complainant attended there at 8.47 pm on 11 October 2009. Senior Constable Lienert said she took a report from the complainant which she considered disclosed the offence of assault. She described the complainant as very upset but said she did not see any marks on the complainant. She said that two days later, ie on 13 October 2009 at about 1.15 pm the complainant returned to the police station and showed Senior Constable Lienert a scratch she had between her breasts, as well as a small bald spot on her forehead. Senior Constable Lienert described that as a “clean bald spot about the size of a five cent piece”. Photographs of the complainant were taken the following day and are contained in Exhibit P2.
The defence case
The appellant also gave evidence at the trial. He described his relationship with the complainant as being “on and off for about five years”. He said that he and the complainant had a prior arrangement for her to come to his house on the evening of 10 October 2009, but the complainant did not arrive. He said that was his reason for going to her home at 7.30 am the following day. He asked the complainant why she had not come to his home the previous evening and she explained she had had too much to drink at the Dutch Club. They then agreed to have lunch together and ended up meeting at the park. He said that he had a black eye because he had fallen over the previous night. He described the situation as amicable when the complainant arrived at the house and said the complainant agreed to drive to the shop and get some food.
The appellant said they had started eating the hot chips when his phone rang. He said the complainant answered the phone and started having a conversation with his mother, which became heated. After the conversation was terminated the complainant told the appellant that his mother had accused her of various shortcomings and raised incidents which had occurred during their relationship. The appellant said he then told the complainant that he in effect agreed with his mother, which made her angry, whereupon the complainant picked up the bowl of hot chips and threw it at him, causing a cut over his right eye. He said that he then picked up the complainant’s bag and threw it at her and told her to leave his house. He denied each of the allegations which constituted the assault and said he had not made any physical contact with the complainant at all.
The appellant’s mother gave evidence in support of the defence case. She confirmed that in the late afternoon she had spoken to the complainant on the telephone at the appellant’s house. She said in the course of that conversation the complainant became agitated and angry as a result of which she, that is the mother, terminated the conversation. She said she was then living at Williamstown, but decided to go immediately to her son’s house. She said she arrived about 45 minutes after the phone call. She said the appellant had a cut under his eye and he was bleeding. There was blood all over his shirt. She took him to the Lyell McEwen Hospital where he was treated for the cut to his eye.
Magistrate’s reasons
In his reasons for judgment the learned Magistrate accepted the complainant as a witness of truth and said that he believed that her account was generally accurate. He said at [45]:
Any differences or inconsistencies between her evidence and prior statements to the police were not of significance in my assessment of her credit. I note that her statement to the police did not include reference to the scratch made by the defendant by running his finger down her chest. However, Ms Ciampa’s evidence on that issue was corroborated by the evidence of Ms Lienert. I accept the evidence of Ms Lienert without reservation. Ms Ciampa’s evidence as to the removal of a quantity of hair from the left side of her scalp was also corroborated by the evidence of Ms Lienert and by photograph nos 3 and 4 in P2.
I accept that there was some slight swelling to the left side of Ms Ciampa’s face although that is difficult to discern in photographs 1 and 2 of P2.
I acknowledge that there is no objective evidence or corroboration of Ms Ciampa’s evidence that her head was pushed into a brick wall, nonetheless, I accept that allegation and find that the force employed was insufficient to have caused injury.
The learned Magistrate went on to say that he did not accept the appellant as a witness of truth. He said he believed that he had given a false recollection of what had occurred. He found the appellant’s evidence to be unconvincing, particularly with respect to his reasons for attending at the complainant’s house at such an early hour of the morning. He rejected the appellant’s evidence that the complainant had thrown the chips at him thereby causing the cut to his face and found the injuries to the appellant’s face had been caused by his fall on to the glass table top the evening before. He accepted the appellant’s mother as an honest witness but considered that:
… her observations were of little significance, given they occurred after the events crucial to the charge, had been played out.
On the acceptance of the evidence of the complainant he found that the prosecution had proved beyond reasonable doubt that the appellant had intentionally and unlawfully applied force to the complainant as she deposed.
Grounds of appeal
The appellant has appealed against his conviction on the following grounds:
1. The learned Trial Magistrate erred in his assessment of the complainant’s evidence such that he failed to address the following:
a.the inconsistency as between the complainant’s allegations and the evidence of injuries or lack thereof;
b.the significance of inconsistencies in the complainant’s narrative.
2. The learned Magistrate failed to provide adequate reasons in that he:
a.failed to adequately address the defence evidence at trial;
b.failed to make findings of fact which were sufficient to identify a basis upon which the appellant could have been convicted.
3. The learned Trial Magistrate erred in his rejection of the defendant’s evidence.
Ground 1 – Inconsistencies
Counsel for the appellant submitted that in making a finding of credibility in favour of the complainant, the learned Magistrate had failed to address the inconsistencies in the evidence with respect to the serious nature of the allegations made by the complainant as opposed to the lack of evidence of injuries incurred as a result thereof. The complainant’s evidence included the forceful grabbing of a fistful of her hair, smashing her head into bricks and being struck several blows to the head, but no medical evidence was adduced with respect to injuries incurred as a result thereof. The only evidence of injuries, independent of the evidence of the complainant, was that given by Senior Constable Lienert, together with the photographs taken of the complainant on 14 October 2009 (Exhibit P2). However, I think it is fair to say that the photographs do not particularly assist.
In finding the complainant to be a witness of truth the Magistrate appeared to place considerable reliance on the evidence of Senior Constable Lienert. However, counsel for the appellant submitted that the evidence of Senior Constable Lienert was limited. When she took the initial complaint in the matter, she did not see anything at all to corroborate the account given by the complainant, although she described seeing a 10 cm long scratch between the complainant’s breasts and a small bald spot about the size of a five cent piece on her scalp when the complainant attended the police station two days later. Senior Constable Lienert described the bald spot as not being red and said there was nothing apparent to indicate to her that it was the result of hair being pulled out from that location.
Senior Constable Lienert did not observe any swelling on the day of the initial complaint and did not mention seeing any swelling on the later occasion. Counsel for the appellant therefore submitted that there was no evidence of bruising, swelling and/or grazing that sat consistently with the allegations made by the complainant.
Counsel for the appellant further submitted that quite apart from the lack of evidence of injury to support the appellant’s complaint there were inconsistencies within her own evidence. For example, the complainant said in evidence that the scratch to her breastbone had occurred when the appellant had put his finger on the top of her T-shirt and ran his finger down to the top of her belt and said, “Pull your pants down” and said, “You’re fucked now, you slut” and, “Bend over”. Despite the seriousness of this allegation it was not mentioned to Senior Constable Lienert when the complainant first attended at the police station, nor for that matter did she say anything about it nor explain the origin of the scratch when she showed it to Constable Lienert a few days later. Counsel for the appellant submitted that it could be inferred from these matters that the complainant had incorporated the words into the alleged assault at a later stage and this was suggestive of embellishment or concoction. He also submitted that the complainant had embellished other allegations during the course of her evidence, which included an allegation that a punch to her chest had occurred whilst she was holding her dog, which the appellant argued was improbable. Although the complainant said that she had been told by the appellant that he was on a nine-day “bender”, when cross-examined about that aspect of the matter the complainant conceded that she had entertained guests with him at his home during the previous week.
Ground 2 – Reasons
Counsel for the appellant further submitted that the learned Trial Magistrate had failed to provide adequate reasons in that he failed adequately to address the defence evidence in the trial. In particular, he had failed to take into account the evidence of the appellant’s mother, Mrs Vandenberg, despite accepting her as an honest witness.
The Magistrate dealt with Mrs Vandenberg’s evidence quite briefly on the basis that her observations were of little significance due to the timing of them. However counsel for the appellant submitted that the significant aspect of her evidence was that of finding the appellant wearing a bloodied shirt and bleeding from a head wound which, on the defence case, suggested the injury had been recently sustained. If that was so, that supported the appellant’s evidence that the injury to his head had been occasioned by the actions of the complainant and contradicted the complainant’s version of what had occurred. In addition, the mother’s evidence that the complainant had become agitated and angry during the phone call supported the evidence of the appellant as to what happened at the conclusion of that call.
Credibility was a primary issue in the case and counsel for the appellant submitted that the Magistrate had failed adequately to address the issue of credit of the appellant and his witness and that amounted to an error of law. He also submitted that the Magistrate had failed to make findings of fact which were sufficient to identify the basis on which the appellant could have been convicted. The assault alleged against the appellant consisted of a number of allegations, as referred to earlier in these reasons, but counsel complained that the findings made by the learned Magistrate did not sufficiently identify those facts which satisfied the elements necessary to establish the proof of the charge and were inadequate in addressing the mechanism by which the evidence was accepted or rejected.
Ground 3 – Rejection of appellant’s evidence
The appellant’s first narrative of relevant events was given to the police on the day following the incident which gave rise to the charge. During that interview the appellant maintained his innocence and gave answers which were consistent with his evidence. Counsel for the appellant submitted that the appellant’s evidence at trial was not marked by any internal inconsistency, nor was it inconsistent with other facts and his evidence withstood a lengthy and searching cross-examination. The only identified reason for rejecting the appellant’s evidence as a reasonable possibility was a perceived failure to give an adequate explanation for his attendance at the complainant’s home in the early hours of Sunday morning, 11 October 2009. However, the complainant in evidence agreed that she had arranged to go to the appellant’s home the previous evening and that she had failed to attend as arranged and to that extent her evidence supported what the appellant had to say about the matter.
Respondent’s submissions
In order to establish that a verdict is unreasonable or cannot be supported by the evidence, it is not enough for the appellant to show that the evidence is open to criticism, but rather the Court must ask whether on the whole of the evidence, it was open to the learned Magistrate to be satisfied beyond a reasonable doubt as to the appellant’s guilt. In considering this matter, the Court must not disregard or discount the consideration that the learned Magistrate is the body entrusted with the prime responsibility of determining guilt or innocence or the consideration that the Magistrate had the benefit of seeing and hearing the witnesses.[1]
[1] M v The Queen (1994) 181 CLR 487 at 492-3.
Counsel for the respondent argued that the learned Magistrate had appropriately summarised the evidence of injury that was before him and had carefully considered the evidence of the complainant in light of the evidence of those injuries and had made findings that were open to him. She submitted that the complainant had given an appropriate explanation for suggested inconsistencies in her evidence. For example, the complainant had given an explanation in cross-examination as to why she had not referred to the scratch on her stomach in her original statement. She said it was probably forgotten on the day as she was upset and very nervous and had a lot of things to report and that explanation was accepted by the learned Magistrate. Counsel for the respondent further submitted that it was unfair to categorise the appellant’s evidence as to such matters as being hit with an upper cut to the sternum as an embellishment. The complainant had been asked an open-ended question during examination-in-chief as to whether there had been any other contact between herself and the appellant and that is when she gave that response. It was not thereafter suggested to her in cross-examination that this was a recent invention. Counsel further submitted that there was nothing inherently improbable about the complainant’s claim to being punched when holding a small dog.
Further, the learned Magistrate had referred to the evidence about the nine-day bender and had considered that to be a moot point. Counsel for the respondent submitted that the Magistrate had carefully considered the credibility of the complainant and found her to be a witness of truth. She further submitted that in rejecting the evidence of the appellant, the Magistrate had not simply relied on the evidence as to his reason for attending at the appellant’s house early in the morning but had also considered the evidence of the appellant to be unbelievable as to the way in which he had sustained the injury to his eye and his level of intoxication.
Conclusion
In assessing the evidence in this case the learned Magistrate correctly commented that the evidence raised an irreconcilable conflict between the respective recollections of the complainant and the appellant as to what had occurred between them on 11 October 2009. He went on to say that he accepted the complainant as a witness of truth and on that basis believed the complainant’s account was generally accurate. Thereafter he rejected the evidence of the appellant. In making that finding it was clear the learned Magistrate was not impressed by the evidence given by the appellant and he preferred the evidence of the complainant, whom he found to be truthful. However, a finding that a witness is truthful does not necessarily mean that the evidence of the witness is reliable. A person might be a patently honest witness, yet be mistaken or through faulty memory be unreliable in respects which leave open the reasonable doubt about the question of guilt.[2] In this case there was an unusual relationship between the parties which was suggestive of an ongoing volatile relationship between them. The contact between the two of them on the day in question appears to have been in breach of the appellant’s bail agreement and the complainant was apparently well aware of that when she agreed to go to his house. Although the learned Magistrate dismissed the evidence about the appellant’s nine-day bender as being a moot point the fact that the complainant agreed in evidence that in the week before these events she had made dinner for the appellant and friends at the appellant’s house was something which should have alerted the Magistrate to the fact that there were aspects of this relationship which required him to take particular care in scrutinising and assessing the reliability of the evidence of the complainant.
[2] Fitzgerald v Police [2002] SASC 202 Gray J at [8].
The Magistrate in his remarks commented that he did not consider any differences or inconsistencies between the complainant’s evidence and prior statements to be significant in the assessment of her credit, but he did not explain why that was so. In particular, he did not advert to the paucity of evidence relating to the injuries incurred by the complainant, following what, on the complainant’s evidence, was an extremely serious assault. The learned Magistrate appears to have placed considerable weight on the evidence of Senior Constable Lienert as corroboration of the complainant’s evidence, but her evidence was limited to the observation of the scratch on the complainant’s chest two days after these events (without any explanation ever being given to the police officer as to how that was incurred), as well as the observation of a small bald spot on the complainant’s head. However, as earlier mentioned, there was nothing to indicate to the police officer that the bald spot was the result of hair being pulled out as the complainant claimed. The learned Magistrate accepted that there was swelling on the left side of the complainant’s face, but that finding could only have been made on the basis of the acceptance of the evidence of the complainant, as he conceded it was difficult to discern that in the photographs. However, he did not address the evidence of Senior Constable Lienert that she had not observed any such swelling when she saw the complainant.
Further, the learned Magistrate accepted the appellant’s mother to be an honest witness but was dismissive of her evidence on the basis that she had not been present at the relevant time. In so doing he appears not to have appreciated the significance of that evidence with respect to the defence case. The evidence of Mrs Vandenberg, if accepted, established that the complainant was irate in the course of the telephone call and that gave some support to the evidence of the appellant as to what happened at the conclusion of that call. In addition, the evidence of Mrs Vandenberg about the cut to the appellant’s eye, the treatment required at the hospital that night, the fact that the wound was bleeding and that there was blood all over the appellant’s shirt was potentially supportive of the evidence of the appellant that the injury was the result of the dispute with the complainant that afternoon and on the defence case that should have caused the Magistrate to have a reasonable doubt about the matter.
This is not an easy matter to resolve, but having carefully read all of the evidence, I have finally concluded that the learned Magistrate fell into error in that, having accepted the complainant as a witness of truth, he failed to have sufficient regard to the inconsistencies in the evidence which were relevant to the assessment of the reliability of her evidence. In addition, he failed adequately to address the evidence of the defence at trial and in particular the evidence of the appellant’s mother. I therefore allow the appeal and I set aside the conviction recorded on 2 December 2010.
Counsel for the appellant submitted that in the event of the appeal being allowed I should substitute a verdict of acquittal, rather than order a retrial as the evidence of the complainant could never reach the standard required to discharge the onus of proof beyond reasonable doubt. As an appeal to this Court is by way of a re-hearing it is open to me to reach a different factual conclusion to that reached by the learned Magistrate, notwithstanding that the question of credibility is a significant issue in the case. Having read the evidence, I am unable to say where the truth of the matter lies and on that basis it is open to me to record an acquittal with respect to the charge against the appellant. However, the allegations against the appellant amount to a serious assault. Although there are apparent inconsistencies arising out of the evidence I do not think they preclude a finding of proof beyond reasonable doubt by a judicial officer who has carefully scrutinised all of the evidence, taking into account those inconsistencies and having assessed both the truthfulness and reliability of the evidence of the complainant with due regard to all of the evidence produced by the defence. I have therefore decided that the matter should be remitted for re-hearing before another Magistrate and I so order.
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