Whimpress v Police No. Scgrg-98-1378 Judgment No. S6957

WHIMPRESS v POLICE
[1998] SASC 6957

Magistrates Appeal: Criminal

OLSSON J. This is an appeal against the conviction of the appellant, by a stipendiary magistrate, of one count of assaulting a family member. The appellant complains that the conviction is against the weight of the evidence; is in conflict with the findings of the learned magistrate which led to acquittal in relation to other similar type counts; is based on factual conclusions said not to have been the subject of evidence at the trial; and that the learned trial judge failed to take into account both the findings of not guilty in relation to counts 1, 2, 3 and 5 in assessing the complainant’s credibility and also the evidence of the appellant’s good character, in arriving at a conclusion as to count 4.
The appellant was originally charged with five counts of assaulting Maureen Joy Heffernan, his former de facto wife. The assaults in question were alleged to have occurred in the period between 1 October 1996 and 27 December 1996.
The prosecution was required to provide detailed particulars in relation to each of the counts charged. These were expressed as under:-

Count 1 - that, in October 1996, when staying at a motel in McLaren Vale, it is alleged that the defendant grabbed Ms Heffernan by the throat, in a choking fashion, with his thumbs in the back of her neck until she collapsed on the floor.

Count 2 - that, on 16 November 1996, while the defendant and Ms Heffernan were at the defendant's brother's house at Somerton Park, the defendant grabbed Ms Heffernan by the throat, pushed her on to a bed and left the room.

Count 3 - that, on 27 December 1996, while driving a car, the defendant hit Ms Heffernan across the bridge of her nose with his left hand.

Count 4 - that, on 27 December 1996, at Ms Heffernan's home, the defendant punched Ms Heffernan in the chest and squeezed her throat, causing her to fall to the ground.

Count 5 - that, on 27 December 1996, at Ms Heffernan's home, the defendant kicked Ms Heffernan twice in the area of the crotch while she was on the ground and immobilised as a result of the earlier assault on her.

Having heard a good deal of oral evidence, the learned magistrate, for reasons expressed by her in a reserved judgment, recorded a conviction in respect of count 4, but dismissed all other charges.
The matters before the learned magistrate all fell to be disposed of, ultimately and substantially, upon the resolution of issues of relative credibility, the evidence of the principal parties being considered together with and in the context of the other evidence led. Both the appellant and Ms Heffernan gave evidence on oath, as did two neighbours and Ms Heffernan's adult daughter.
Evidence was also led from certain police officers and two medical practitioners consulted by Ms Heffernan. The offences were alleged to have occurred during the final stages of what was a somewhat uneasy relationship between the two principal parties, which had extended over a period of about two years. As the learned magistrate somewhat colourfully expressed the situation, the relationship finally imploded on 27 December 1996.
It is important to approach this matter having regard to findings of credibility expressed by the learned magistrate. She pointed out that the appellant was a sergeant of police aged 52. Several character witnesses were called to the effect that he has never been accused of any act of violence in the course of his many years of work with the police department. She accepted that he was a person of good character and, for that reason, his evidence could not lightly be set aside. She also bore in mind that, in relation to the allegations against him, the onus remained at all times on the prosecution to prove its case beyond reasonable doubt. He had no onus of proving anything.
She said that one of the difficulties inherent in cases such as that before her was that there were two very unhappy people. Both had, whether consciously or unconsciously, personal agendas. Both felt ill used and were looking for the comfort which the approbation of others provides. She felt that processes were sometimes dictated by hormones and emotion, rather than logic. It was therefore necessary to examine the evidence with great care.
The learned magistrate pointed out that this was a case in which there was a good deal of evidence, but little of it was of real assistance in determining directly whether the defendant committed the alleged acts upon which the charges were based. A great deal depended on the relative credibility of the appellant and Ms Heffernan in particular.
It is fair to say that the learned magistrate does not appear to have formed a very good impression of Ms Heffernan as a witness. She also commented that there was considerable truth in the appellant's statement that Ms Heffernan had two distinct sides to her character. When she was happy with the world, no one could be more delightful or better company. Equally there was little doubt that Ms Heffernan, herself, had no real insight into the effects of her demands on other people, and that, if she set out to hurt someone, she had no hesitation in attacking emotional vulnerabilities.
So it was that the learned magistrate concluded that care had to be taken with respect to the evidence of Ms Heffernan because "what comes out has first been through the prism of self justification and/or self indulgence". She pointed to evidence which indicated that Ms Heffernan had not hesitated to attempt to place pressure on, if not blackmail, the appellant by attempting to influence his superior officer to bring pressure to bear on him in relation to an agreement to which she desired to come to resolve outstanding disputes.
She went on to say:-
“Having seen and heard the defendant give evidence, it was my impression that he is over anxious to please those whom he wants to impress, without thought for himself and to the point where he leaves himself without any resources to fall back upon. His evidence also has to be examined with care, not merely because he has had professional experience in giving evidence, but because he is to prone to self justification.
In so far as there was a power imbalance in this relationship, it was a power imbalance which was the opposite of the type of power imbalance which courts normally see when they are dealing with domestic violence cases. In this relationship, if anyone was without power, it was the defendant.”

Some time was occupied at trial in leading evidence of the relationships between the parties and their respective conduct arising from them. This was done without objection. In that context the learned magistrate referred to the evidence given by a neighbour, Ms Powell. She commented that, having seen and heard Ms Powell, she was not prepared to place great weight on her evidence, because she was one of those persons ever ready to jump to conclusions.
The learned magistrate, in her reasons, did not attempt to traverse in detail all evidence as to the specific incidents with which the various counts were associated.
In addressing the various counts she simply expressed the following conclusions:-

Counts 1 and 2 - the sole evidence given in relation to these charges was that of the two principal parties. There was no other evidence which assisted in resolving the dispute between them. At the end of the trial the learned magistrate was left in the situation that she did not know where the truth lay. Accordingly the two counts were dismissed.

Count 3 - the evidence given by Ms Heffernan was to the effect that, while the defendant was driving a motor vehicle, her perception was that the vehicle veered. She said that she grabbed the steering wheel and pulled it. She was then hit in the face by the back of the defendant's left hand.

Having seen and heard Ms Heffernan give evidence, the learned magistrate said that she could not safely conclude that, if the incident did occur as described, it constituted an assault. Reasonable possibilities not excluded were those of either self defence or accident. This count was, therefore, also dismissed.

Counts 4 and 5 - the learned magistrate recited that the evidence indicated that the defendant had worked all night on night shift. When he came off duty he took Ms Heffernan shopping. It was common ground that they both went to lunch at a local tavern. They were there for some hours. Eventually, the appellant insisted that they return home, because it was late afternoon. When they arrived home he commenced bringing in the shopping.

Apparently, at some stage during the day, the two of them had had an argument concerning whether he had lost or misplaced some money which Ms Heffernan had asked him to look after for her. Be that as it may, a further argument broke out when the parties arrived home. As to this the learned magistrate said:-

“I have no doubt that hurtful things were said on both sides, and that it quickly became physical. I have no doubt that both the defendant and Mrs Heffernan lost their tempers.
Equally, I have no doubt that the defendant punched Mrs Heffernan at least twice, leaving bruises on her chest. I cannot put it higher than that he probably did twist her toe after a wrestling match on the ground. I have no doubt that the extent of her grazing was caused by wrestling on the ground. He may well have kicked her, believing that, when she did not get off the ground, she was indulging in histrionics, but there is no medical evidence which supports allegations of the kicking which was alleged. She punched him at one stage, splitting her hand open. There is no medical evidence to support the allegation that he squeezed her throat.
At the end of the day, I am satisfied beyond reasonable doubt that the defendant punched Mrs Heffernan at least twice, not in self defence, but in anger built up not so much by alcohol as lack of sleep and lack of control over his own life.”

A medical practitioner, Dr Robertson, was called to give evidence of an examination of Ms Heffernan carried out by him on 27 December 1996. He noted a variety of injuries evidenced by her. She had a graze on her right cheek and was tender over the left cheek, with some redness of it. She also had multiple scratches on her forearms and some on her left arm just above the elbow. There was a graze on her right wrist. She had a small laceration on her fourth knuckle (which he sutured), and she had a graze on her right scapula. The doctor said that she had a further graze in the midline of her back and was complaining of some tenderness over her rib margins on both sides. She was tender in her upper stomach and had a graze on her right knee cap. It is important to note that, although this witness noted the presence of bruising underneath Ms Heffernan’s left first toe, he did not observe any bruising on her chest consistent with the alleged punches received. Furthermore, the tenderness over her rib margins and upper stomach is not consistent with what was said to have been the site of the receipt of the alleged punches.
True it is that the witnesses Cosgrove and Barnes claim to have observed bruising some time after the day of the alleged offence. However, an obvious problem with this evidence is that it is by no means clear when these observations were made in relation to that day; the evidence is difficult to reconcile with that of Dr Robertson as to what he observed on the day; and, in the case of the witness Barnes, in particular, it is difficult to reconcile the location of the bruising with the evidence of Ms Heffernan as to where she says that she was punched.
It must be noted, at the outset, that the two principal witnesses gave widely divergent narratives as to what transpired on 27 December. On the one hand Ms Heffernan asserted that, almost immediately after entering the house, the appellant, who appeared angry with her, commenced throwing parcels (which he had unloaded from the car) on to the lounge room floor. When she said “What are you doing?”, he simply turned around, punched her “on the left side of the chest and my left breast” and knocked her to the floor. He punched her a second time “in the chest” when she attempted to get up.
By way of contrast the appellant testified that, after entering the house, he broke the news to Ms Heffernan that he had had enough and was leaving her. She thereupon attacked him. She tore the glasses from his face, raked her fingernails down his face and neck and, when he attempted to restrain her in the course of what proved to be a violent struggle, both fell to the floor, with him on top of her. After they both got up she punched him in the face, splitting his lip.
It is to be noted that there was clear corroboration of the injuries received by him. Shortly after the incident at the house, on the same day, the appellant’s sister observed that he had what she described as a fat lip and scratches down the right side of his neck. Constable Mahomet observed his split lip the next morning.
It only remains to recite that, the next morning, when he came to the house to keep the peace when the appellant removed his belongings, Ms Heffernan made some complaint to Constable Mahoment, the detail of which was never given in evidence. She said that she did not wish to make a formal complaint or pursue the matter. It was not until April 1997, at a time after the appellant had announced his engagement to another woman and when he and Ms Heffernan were in dispute concerning financial matters, that she preferred formal complaints of assault against him.
In light of that evidence and on the basis of her assessment of the witness evidence, the learned magistrate, not surprisingly, concluded that the particulars related to count 5 had not been proved beyond reasonable doubt. She therefore dismissed that count. On the other hand, she found the charge on count 4 proved, to the extent that she was satisfied beyond reasonable doubt that the appellant had punched Ms Heffernan in the chest twice. She recorded a conviction as to that count, but discharged the appellant upon entering into a bond to be of good behaviour for a period of twelve months, a condition of which was that he was not to have any contact with, or be within 100 metres of, Ms Heffernan.
It is with regard to this lastmentioned conviction that the present appeal is prosecuted.
A number of issues were canvassed by counsel on the hearing of the appeal, but it seems to me that this matter may be disposed of on a fairly narrow front. The learned magistrate found that, at the relevant time, both parties lost their tempers. I infer from her reasons that she considered that a mutual struggle, if not a fight, broke out between the parties in which, at least to some extent, each gave as good as they got. The injury to the complaint’s knuckle bore ample testimony to the aggressive behaviour of Ms Heffernan. It is also clear that the appellant was angry with her. Presumably, on that basis, the learned magistrate was disposed to view relevant injuries later evidenced by Ms Heffernan as, at the very least, being the product of an unlawful assault, albeit having been received during a fracas in which both parties were both willing and active participants. (See Attorney-General’s Reference (No 6 of 1980) [1981] 1 QB 715 at 719, Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331, R v Raabe [1985] 1 Qd R 115. See also J A Devereux, “Consent as a Defence to Assaults Occasioning Bodily Harm - The Queensland Dilemma” (1988) 14 University of Queensland Law Journal 151.)
The difficulty which I have with this conclusion is that it depends, for its validity, on the proposition that, at the very least, the appellant voluntarily engaged in an unlawful fight with Ms Heffernan, in the course of which he deliberately struck her, intending to cause her harm. The evidence seems to me quite incapable of supporting a thesis (at least beyond reasonable doubt) that the appellant gratuitously assaulted her on a unilateral basis.
Not surprisingly the learned magistrate had great difficulty in discerning where the truth really lay about this overall incident, which occurred in the privacy of the parties’ home. It seems to me, with respect, that the only basis on which she opted for a conviction on count four was that, amongst a multiplicity of injuries evidenced by Ms Heffernan (which were consistent with a considerable melee), some were at least consistent with the two punches alleged.
However, despite the strong contentions of Mr McEwen, of counsel for the respondent, to the contrary, I consider that this was a very dubious basis for the conclusion arrived at, the more so as the learned magistrate had not accepted as proven other assertions on the part of Ms Heffernan, as to what occurred on that same occasion. I reiterate, the two principal witnesses gave widely varying versions of what took place. On the one hand the appellant described Ms Heffernan as the aggressor, who scratched and punched him and split the skin on her knuckle in so doing. He said that he endeavoured to restrain her. For her part, Ms Heffernan sought to portray him as the salient aggressor. Whatever was the truth of the matter it is clear that, in the resultant struggle, both parties fell heavily to the floor at one point - with the appellant falling on top of Ms Heffernan.
Bearing in mind the learned magistrate’s assessment of the two parties there was simply nothing which pointed compellingly to the accuracy of one version or the other - the more so as Ms Heffernan appeared to be dispensing as much, if not more, punishment than she may have received. Indeed, the injury to Ms Heffernan’s knuckle (which required suturing), the appellant’s split lip, and the scratches on his neck were really the only truly positive corroboration of anything specific that was alleged to have occurred. These all corroborated the story told by the appellant, that, at some stage, she assaulted and attacked him. The other observations made by Dr Robertson, were, in the main, quite equivocal as to their cause. They could well have simply been the product of the general fracas which undoubtedly occurred. He saw nothing to accord with the alleged punches. The observations made by the two witnesses to whom I have referred were not even specific in terms of time and, in one case, appear inconsistent with the alleged locations of the punches. It seems to me that any bruising, grazing or tenderness could well be explicable by reason of the heavy fall to the floor and the violent general fracas which undoubtedly took place.
The mere fact that Ms Heffernan may had some indicia consistent possible punches, amongst a plethora of other minor injuries from the fracas which occurred, during which the parties were on the floor at one stage, really said little as to what had specifically taken place. With all due respect, it seems illogical and inconsistent to reject Ms Heffernan’s story as to the other stated elements of the alleged assault - yet find this one aspect proven. Certainly, in her fairly brief reasons, the learned magistrate gives no convincing reason for so doing.
I do not accept Mr McEwen’s contention that, in the particular circumstances, the mere fact that the learned magistrate found the other aspects and the other charges unproven did not redound against the credibility of Ms Heffernan. Had the learned magistrate been satisfied that Ms Heffernan was a person of truth and an accurate historian, she would have been entitled to accept her sworn evidence in absence of any other corroborative evidence. She was not prepared to do so and, elsewhere, made findings which were generally adverse to Ms Heffernan’s credibility.
This was, in truth, a scenario in which the concept discussed by the High Court in Jones v R (1997) 149 ALR 598 at 608 - 9 was pertinent.
Implicit in the acquittals as to counts 1, 2 and 5 and the non acceptance of certain features of count 4 in particular, was a non acceptance of the complainant’s account of the relevant events. There is no other logical conclusion to be drawn. That non acceptance necessarily diminished the overall credibility of Ms Heffernan and, to adopt the language of the High Court, there was nothing in either the complainant’s evidence or the other evidentiary material (properly understood as to its relevance and weight) which gave any ground for supposing that her evidence was more suasive in relation to the punching than it was in relation to the other issues.

Added to that was the evidence of the appellant’s good character, which not only went to his credibility, but also the unlikelihood of the commission of such an offence by him. (The Queen v Trimboli (1979) 21 SASR 577 at 578.)
I am quite unable to see how, on the state of the evidence and the other findings made, it could ever have been said that the prosecution had proved this one aspect beyond reasonable doubt. The primary, positive evidence was simply not convincing. There were also other possibilities (some of which I have just adverted to) which had not, compellingly, been excluded, not the least of which was the possibility of self defence when - as he alleged - the appellant was endeavouring to restrain her or ward off her alleged attack; and both, ultimately, fell to the ground.
On the face of the reasons as expressed, the positive finding made as to count 4 does appear to be inconsistent with the other findings expressed as to both counts 4 and 5. It would be most unsafe to allow the conviction to stand.
The appeal must be allowed. The conviction and order appealed against will be set aside. In lieu there must be substituted an order of dismissal of count 4.

[1998] SASC 6957

18 November 1998