Weetra v Police - [2007] SASC 422

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WEETRA v POLICE
[2007] SASC 422
Judgment of The Honourable Justice Kelly
4 December 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS
Appellant convicted of intentionally applying force thereby causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 – sentenced to period of 18 months imprisonment with non-parole period of 12 months.
Appeal against conviction – whether the conviction is unsafe and unsatisfactory – whether Magistrate’s reasoning inconsistent.
Appeal against sentence imposed by Magistrate – whether sentence of 18 months imprisonment with a non-parole period of 12 months is manifestly excessive.
Appeal against conviction and sentence dismissed – Magistrate gave detailed and thorough reasons for his conclusions in this matter – having reviewed the evidence, the Magistrate’s verdict is correct – Magistrate took all relevant maters into account in sentencing the appellant – the complaint that the sentence is manifestly excessive is unarguable.
Criminal Law Consolidation Act 1935 s 20(4), referred to.
Rowland v Police (2001) 79 SASR 569, applied.

WEETRA v POLICE
[2007] SASC 422

This is an appeal against conviction and sentence.
The appellant, Anthony Troy Weetra, was convicted in the Christies Beach Magistrates Court on 26 June 2007 of one count of intentionally applying force thereby causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 as amended. On the same day, he was sentenced to a period of 18 months imprisonment with a non-parole period of 12 months.
The appellant’s notice of appeal identifies two grounds of appeal. Firstly, that the conviction is unsafe and unsatisfactory. Secondly, that there are a number of inconsistencies in the Magistrate’s reasoning.
At the hearing of the appeal, counsel for the appellant expanded on those grounds. It was submitted that the conviction was unsafe and unsatisfactory by reason of an accumulation of factors, including the following:
·The absence of the complainant as a witness at the trial.
·The inability of the appellant to test the evidence of the witness, Mr Grottick, as a result of the failure to call the complainant.
·The failure of the Magistrate to properly consider the issue of intoxication, in particular its effect on both the complainant and the witness, Mr Grottick.
·The absence of other eye witnesses said to be at the scene when the incident giving rise to the charge occurred.
·The rejection of the appellant’s evidence without any adequate analysis of his evidence and the evidence of Ms Odgers.
·A finding by the Magistrate that the appellant and a defence witness, Ms Odgers, colluded in giving their evidence, without any opportunity being afforded to Ms Odgers to refute such an allegation.
·The Magistrate’s confused reasoning on the topic of self-defence.
In summary, the issues on this appeal relate to the inadequacy of the Magistrate’s reasons and whether, in all of the circumstances, the conviction is unsafe and unsatisfactory.
Background
The events the subject of this charge occurred on 22 October 2006 during a visit by the complainant Ms Rebecca Sargeant and her friend, Mr Gary Grottick, to the home of the appellant’s aunt at Hackham West.
The trial commenced in the Christies Beach Magistrates Court on 24 April 2007 and was adjourned from that date until 25 June 2007 when the evidence was completed. On 26 June 2007, the Magistrate convicted the appellant and delivered extensive reasons in what was described as an ex-tempore judgment.
The prosecution did not call the complainant, Ms Sargeant. There was evidence from Ms Sargeant’s mother, Mrs Josephine Sargeant, that her daughter Rebecca suffers from an intellectual disability and has been employed on and off at Bedford Industries since 1993. Mrs Sargeant said that her daughter, Ms Sargeant, was sober on the morning of 22 October 2006 when she left her mother’s home to visit her friend, the witness, Gary Grottick. Mrs Sargeant confirmed that Rebecca Sargeant takes medication for an anxiety disorder and that she had never seen her daughter act in a violent or aggressive way as a result of being in an anxious state.
Gary Grottick said that he met Rebecca Sargeant at the time when they worked together at Bedford Industries. At some stage they went out together but they split up before Christmas in 2006.
The interviewing police officer, Detective Bratchell, interviewed the appellant on 22 October 2006 and a video of that interview was tendered at the trial.
There was undisputed medical evidence that the complainant suffered a fractured nose and two lacerations, one on the lower lip and one on the left side of the upper lip requiring six sutures. There was evidence that she was admitted to the Noarlunga Hospital on 22 October 2006 and treated for those injuries. There was no evidence of any injuries suffered by the appellant notwithstanding his claim to have been punched numerous times in the head by Ms Sargeant.
The appellant gave evidence at the trial and called Ms Odgers. He admitted both to the police and in evidence that he assaulted Rebecca Sargeant twice but claimed to have been acting in self-defence. In light of the appellant’s concession that he had hit the complainant twice, the issue at trial for the Magistrate was whether the prosecution proved or disproved beyond reasonable doubt the appellant's claim to have acted in self-defence.
I mention in passing that Ms Odgers is also described as Ms Hodges. The spelling of Odgers was the spelling of his partner’s name given by the appellant in the record of interview. For the sake of consistency, I shall refer to Ms Hodges as Odgers throughout.
The relevant principles
Although the appellant has complained about a number of aspects of the Magistrate’s reasons, the duty of this court on the hearing of an appeal from a magistrate is to conduct an independent review of the evidence.
Perry J in Rowland v Police (2001) 79 SASR 569 at 573-574 summarised the duty in this way:
36 Another consideration to be borne in mind is that it is the duty of this Court, on the hearing of an appeal from a magistrate, to conduct an independent review of the evidence. It may allow an appeal, even if there is no overt error apparent on the face of the reasons given by the magistrate.
37 That is not to say that if a magistrate gives convincing reasons, apparently free from error, this Court may be reluctant to substitute its own views. But it must do so if it comes to a different view of the case after making an independent review of the evidence.
38 The question on the hearing of an appeal from a magistrate is not whether there was material upon the basis of which it was open to the magistrate to reach the conclusion which he or she did. On the contrary, the question is whether or not, having reviewed the evidence for itself, while making due allowance for the advantage held by the magistrate in seeing and hearing the witnesses, this Court is satisfied that the judgment under appeal is correct.
39 In making those observations, I restate the view which I expressed in Taylor v Hayes. (footnotes omitted)
40It follows from those observations that, while adequate reasons will make the task of this Court on appeal easier, the essential nature of the task will be the same, however adequate or inadequate the reasons may be.
Analysis
Bearing these principles in mind, I turn now to consider each of the complaints made by the appellant in support of the submission that the verdict was unsafe and unsatisfactory.
For the reasons which follow I do not consider that any of the grounds of appeal which attack the adequacy or sufficiency of the Magistrate’s reasoning are made out.
In the first half of his reasons, the Magistrate summarised the accounts given by the main prosecution witness, Mr Grottick, and the account given by the appellant and Ms Odgers. In the second half of the judgment, he gave reasons for preferring the evidence of Mr Grottick, analysed in some detail the evidence of the appellant and Ms Odgers, and gave reasons for rejecting their evidence. He then went on to deal with the issue of self-defence and made specific findings of fact which supported his conclusion that the prosecution had proved beyond reasonable doubt the elements of the offence.
The evidence of the assault upon Ms Sargeant came from Mr Grottick. The appellant contended that the absence of Ms Sargeant as a witness prevented the appellant from being able to effectively test Mr Grottick’s claim not to have consumed more than two or three glasses of alcohol or his account of how the incident involving the appellant and Ms Sargeant unfolded. It was further argued that the Magistrate did not understand or appear to take into account the implications of Mr Grottick’s intellectual disability upon his credibility and reliability.
Mr Grottick was cross-examined in some detail about his observations during the relevant period of time when he and Ms Sargeant were at the home of the appellant’s aunt and about his earlier consumption of alcohol.
Although there was no explicit explanation from the prosecution as to why the complainant was not called, there was undisputed evidence from Mrs Josephine Sargeant, the complainant’s mother, that Ms Sargeant suffered from an anxiety disorder, for which she receives medication, and has an intellectual disability. There was also evidence that Ms Sargeant’s blood alcohol level when admitted to the hospital after the incident on 22 October 2006 was 0.2. All of this material was known and available to the defence as a basis for cross-examination of Mr Grottick.
The issue for the Magistrate was whether, on the evidence presented, there was sufficient evidence to satisfy him beyond reasonable doubt of all of the elements of the offence of intentionally causing harm.
The Magistrate found Mr Grottick to be a candid and truthful witness. I cannot accept, in light of his explicit reference to Mr Grottick’s intellectual disability, that he has overlooked or failed to take into account the import of the witness’s intellectual disability in his assessment of that witness.
A reading of Mr Grottick’s evidence, even taking into account that this court does not have the benefit of seeing and hearing the witness, does not cause me to have any misgivings about the Magistrate’s finding that he was candid and truthful. Moreover, the account which he gave of the incident was quite straightforward. There is no suggestion of any material inconsistencies in his account which might give rise to doubt about either his veracity or his reliability.
Although it was an unusual feature of the trial that the complainant was not called to give evidence it is by no means uncommon. The absence of a complainant at trial is not necessarily fatal to the prosecution’s ability to prove a charge beyond reasonable doubt. There are many reasons why a complainant might not be called. The real issue for the trier of fact in such a case is whether, on the whole of the evidence, there is evidence capable of satisfying the trier of fact beyond reasonable doubt of the essential elements of the charge.
In my respectful view, the Magistrate’s reasons as a whole demonstrate that he was alive to the problem, that he well understood the import of the effect of the main prosecution witness’s intellectual disability on his assessment of the witness and that he took it into account.
Counsel for the appellant submitted that the Magistrate was required to explicitly ask himself the question whether he could be satisfied without hearing from the complainant and that he failed to do so. In my respectful view it is quite obvious from the Magistrate’s reference to the unfortunate absence of the complainant that he well understood the import of her absence and the necessity for him to be satisfied beyond reasonable doubt of both the reliability and veracity of Mr Grottick’s evidence before convicting the appellant.
For these reasons, the complaint about the absence of the complainant and its effect on the ability of the defence to effectively test Mr Grottick’s evidence has not been made out.
Before moving off the topic of intoxication I deal with the appellant’s further complaint that the Magistrate took into account a number of irrelevant matters including the intoxicated and aggressive state of the appellant in the interview with Detective Bratchell.
Reference was made to that fact by the Magistrate both as part of his recitation of the history of the matter and again in the context of considering the admissibility of the record of interview. It was but one of the factual matters relevant to the Magistrate’s determination of a number of issues including, but not confined to, the admissibility of the record of interview and his findings in relation to the issue of self-defence.
Counsel for the appellant submitted that the Magistrate’s discussion on the issue of self-defence was confusing and at times unintelligible, indicating that the Magistrate failed to understand his task.
The factual issues for the Magistrate to determine were confined within a very narrow compass. The appellant, in his interview with the police, and again at trial, admitted assaulting the complainant twice. The only issue for the Magistrate, therefore, was the context in which the appellant admitted assaulting the complainant. The appellant raised the issue of self-defence and the Magistrate dealt with that issue quite extensively. In fact, the whole of the latter part of the Magistrate’s reasons from paragraph 54 to his conclusion in the final paragraph of his judgment deals with the issue of self-defence. Counsel for the appellant pointed to one particular paragraph in making the submission that the Magistrate’s treatment of the issue of self-defence was fundamentally wrong. In that paragraph the Magistrate said:
54.On the basis of the facts disclosed it is manifestly not reasonably possible that each of the asserted acts of pushing the palm or palms of both hands at, and then swinging a punch at and connecting with the victim once by the defendant, was done in self-defence. Had I reached the opposite conclusion the prosecution would have had the burden of disproving that fact. Further, the prosecution would have had the burden of having proved beyond reasonable doubt that the defendant does not come within the provisions of section 15 of the Criminal Law Consolidation Act. There is no evidence to suggest that the defendant acted in any way which might attract the operation of section 15A of that Act.
The Magistrate then went on to deal in some detail with the claim of self-defence.
When that particular paragraph is read in context with the whole of the discussion of self-defence, starting at paragraph 48 and continuing through to the conclusion at paragraph 75, it seems plain enough that all His Honour was saying in paragraph 54 was that he had concluded that the prosecution had in fact disproved that defence. Perhaps the criticism could be made that the Magistrate has not expressed himself as clearly as he might have in that paragraph, but on reading the whole of his discussion on the issue of self-defence his reasons are clear enough. In my respectful view, he has correctly identified the issue on the facts before him, correctly stated the test for self-defence and concluded that self-defence did not apply.
In the course of this appeal, I viewed the video of the appellant’s interview with the police officer and carefully read his evidence at trial. On the basis of the appellant’s evidence alone, it is noteworthy that he himself never claimed to have held a genuine belief that his conduct was necessary and reasonable for a defensive purpose.
In my view, the Magistrate’s conclusion that self-defence was not available on the evidence was inevitable. I consider he correctly understood the burden of proof in relation to the topic of self-defence and correctly concluded that the prosecution had discharged its onus to disprove self-defence.
The appellant submitted that the Magistrate failed to adequately analyse the evidence of the appellant and Ms Odgers before rejecting it. There was a further complaint about his finding, in effect, that Ms Odgers had colluded with the appellant without giving her the opportunity while in the witness box to refute that allegation. In this context, the Magistrate’s finding at paragraph 44 of the judgment was the subject of particular criticism.
44.Remarkably, after the luncheon adjournment yesterday, Ms Odgers set about embellishing her evidence and qualifying the absolutes in her evidence in chief so as to make it more consistent with that of the defendant.
Those remarks were made in the context of a detailed analysis of the evidence of both the appellant and Ms Odgers. His Honour relied on a number of matters in concluding that he was not able to rely on the evidence of either the appellant or Ms Odgers. In particular, he referred to a number of material inconsistencies in the evidence of both the appellant and Ms Odgers. Those inconsistencies were capable of undermining the reliability and credibility of both the appellant and Ms Odgers. The transcript reveals that there was in fact some material changes to Ms Odgers’ account after the luncheon break including the number of times she saw Ms Sargeant allegedly hitting the defendant. There were other aspects of Ms Odgers’ evidence capable of casting serious doubts as to her veracity and reliability, in particular her claim to have seen the complainant carrying a box of alcohol (however that was described) at the time when she was at the home of the appellant’s aunt.
I recognise the validity of the criticism that the suggestion of collusion was never put to Ms Odgers. However, upon my independent re-assessment of the evidence, I have no misgivings about the Magistrate’s ultimate finding. The critical matters here were the changes and inconsistencies in the witness’s account, not the reasons for them. These matters properly go to the credit of the witness.
The appellant complained that the Magistrate’s reasons for preferring the evidence of Mr Grottick over the evidence of the appellant Ms Odgers were inadequate and unsatisfactory.
In this case there was evidence from Mr Grottick, the prosecution witness, as to what had occurred in the few minutes in front of the home after he and Ms Sargeant were asked to leave. There was evidence from the appellant and Ms Odgers about those same matters. The disparity between the two accounts fell largely to be resolved by determination of credibility.
As I have remarked earlier the account given by Mr Grottick was straightforward and consistent. The Magistrate reached the conclusion that he preferred the evidence of Mr Grottick, finding him to be a candid and truthful witness. In the course of his reasons he dealt with the many infirmities in the evidence of the appellant and Ms Odgers and a number of inconsistencies in their evidence which went to their credibility.
In the end he concluded that he simply did not believe the appellant or Ms Odgers. Even without the benefit of having seen or heard those witnesses, the account given by the appellant and Ms Odgers seems intrinsically improbable. That impression was reinforced after viewing the videotape of the appellant’s interview with the police officer.

In my view the Magistrate’s conclusion about the evidence about the appellant and Ms Odgers is correct. His reasons while not necessarily expressed elegantly are nevertheless clear enough.
The appellant referred to the presence of a number of other potentially relevant witnesses at the home of the appellant’s aunt on the day and submitted that their absence at the trial ought to have raised a reasonable doubt in the mind of the Magistrate.
It is true that reference was made to a number of other people present in the house that day who were apparently relatives, or friends or acquaintances of the appellant’s aunt. This included a man named Freddie Farrant, the appellant’s uncle, a woman referred to as Glenda and another woman referred to as Anne-Marie. Both the appellant and Ms Odgers gave evidence alleging that the woman, Anne-Marie, had been hit by Ms Sargeant. Counsel for the appellant contended that in light of inappropriate questioning by the prosecutor of the appellant as to whether he proposed to call any of these witnesses, the Magistrate misunderstood the onus of proof.
The short answer to this complaint is that there is no evidence to suggest the Magistrate misunderstood his task at all or ever took into account in any inappropriate way the absence of any other potentially relevant witnesses at the trial. The Magistrate correctly identified the issue before him which was whether on the evidence he was satisfied beyond reasonable doubt of the elements of the offence of assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act.
Conclusion
In my respectful view the Magistrate gave detailed and thorough reasons for his conclusion in this matter. He canvassed the evidence in considerable detail. Although there are isolated paragraphs that were the subject of specific criticisms where he might have been clearer, the import of his reasons as a whole are clear.
The appellant’s submission that the verdict in this matter is unsafe and unsatisfactory rests to a large extent on the complaints about the adequacy of the Magistrate’s reasons. For the reasons which I have given I do not agree with those complaints. However, I have reviewed all of the evidence and in the light of my independent assessment of the evidence I consider that the Magistrate’s verdict is correct. In my respectful view there was ample evidence to support a finding beyond reasonable doubt of the appellant’s guilt.
For these reasons I am not persuaded that the appellant has made out any of the grounds of appeal and I would dismiss the appeal against conviction.
Appeal against sentence
There was a further complaint that the sentence of 18 months imprisonment with a non-parole period of 12 months was manifestly excessive.
The circumstances in which the assault was committed make this a serious example of an offence of this nature. The complainant and her boyfriend were invited by the appellant to visit his aunt’s house on that afternoon. Their only mistake was to arrive at the house without any alcohol. Not only did the appellant tell them to leave but he followed them out and committed an unprovoked assault on this intellectually disabled young woman. Her injuries were serious and she was taken to hospital.
The appellant has a serious criminal record for offences of dishonesty and violence. He has been convicted on at least six other occasions for offences of assault alone. He has been imprisoned on numerous occasions.
In his sentencing remarks the Magistrate referred to all of the mitigating factors in the appellant’s background. There is no suggestion that he has failed to take into account any relevant matter.
It also appears that by committing these offences the appellant breached a bond to be of good behaviour for one year. That bond was entered into less than four months before the current offence was committed.
In these circumstances it is not surprising that the Magistrate took a very serious view of the overall circumstances of his offending. In my respectful view, the complaint that the sentence is manifestly excessive is unarguable.
There is a subsidiary matter which arises out of the Magistrate’s remarks in the last paragraph of his sentencing remarks. It is not entirely clear from the Magistrate’s remarks at paragraph 11 of the judgment whether the period of 18 months referred to as the head sentence is inclusive of the term of imprisonment of one month referred to in that paragraph or not. I will hear counsel as to any order which needs to be made to clarify the position.