White v Goodger
[2001] WASCA 259
•28 AUGUST 2001
WHITE -v- GOODGER [2001] WASCA 259
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 259 | |
| Case No: | SJA:1067/2001 | 25 JULY 2001 | |
| Coram: | MILLER J | 28/08/01 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | RODNEY BRYAN WHITE ALAN PAUL GOODGER |
Catchwords: | Appeal Criminal law Conviction for assault Inconsistency in the evidence of prosecution witnesses Whether conviction unsafe and unsatisfactory Turns on own facts |
Legislation: | Nil |
Case References: | Devries v Australian National Railways Commission (1993) 177 CLR 472 Garrett v Nicholson (1999) 21 WAR 226 Harvey v Matthews [1999] WASCA 58 M v The Queen (1994) 181 CLR 487 Rosenberg v Percival (2001) 75 ALJR 734 Talbot v Lane (1994) 14 WAR 120 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
BETWEEN : RODNEY BRYAN WHITE
- Appellant
AND
ALAN PAUL GOODGER
Respondent
Catchwords:
Appeal - Criminal law - Conviction for assault - Inconsistency in the evidence of prosecution witnesses - Whether conviction unsafe and unsatisfactory - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr S J Wright
Solicitors:
Appellant : In person
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Devries v Australian National Railways Commission (1993) 177 CLR 472
Garrett v Nicholson (1999) 21 WAR 226
Harvey v Matthews [1999] WASCA 58
M v The Queen (1994) 181 CLR 487
Rosenberg v Percival (2001) 75 ALJR 734
Talbot v Lane (1994) 14 WAR 120
Case(s) also cited:
Nil
(Page 3)
1 MILLER J: The appellant was charged in the Court of Petty Sessions Joondalup that on 31 October 2000 at Woodvale he unlawfully assaulted one Danielle Erica Anne Parnell contrary to the provisions of s 313 of the Criminal Code. The case was heard in Joondalup Petty Sessions on 12 April 2001 and the appellant was convicted. From that conviction he was given leave by Templeman J on 8 May 2001 to appeal on the ground that the learned Magistrate erred in law and in fact in convicting the appellant on the following grounds:
"(a) he ought not have convicted the Applicant unless and until he was satisfied that the charge had been proved beyond reasonable doubt;
(b) he made findings of fact which went against the weight of the evidence;
(c) although His Worship said that he was satisfied that the prosecution had proved the charge to the necessary degree his earlier remarks suggested he had decided the case on the balance of probabilities;
resulting in a conviction that is unsafe and unsatisfactory."
2 The case before the learned Magistrate depended upon a determination of the credibility of witnesses. A number of prosecution witnesses were called, two of whom testified that the appellant had assaulted Ms Parnell in a park in the Woodvale area. Other witnesses gave supporting evidence of one kind or another. The appellant testified in his defence that he denied having assaulted Ms Parnell as alleged or at all, contending that it was she who had assaulted him.
3 Faced with this conflict in testimony the learned Magistrate decided that the evidence of Ms Parnell and her friend, Ms O'Keefe, the former being the victim of the alleged assault and the latter a witness to it, was "forthright, cogent and truthful". His Worship added that the evidence "had a ring of truth to it" whereas the evidence of the appellant did not. The key conclusions of the learned Magistrate were expressed in these terms:
"Of course the defendant does not have to prove a thing. It is for the prosecution to prove beyond reasonable doubt that this event occurred.
(Page 4)
- But taking into account the matters that I have referred to, and having observed each of the parties give their evidence, my view is that both Miss Parnell and Miss O'Keefe, in particular, gave their evidence in a forthright, cogent and truthful manner. If they did not know something or could not remember something, they were prepared to admit that. They were cross-examined at length, as I have referred to, and their evidence did not waver.
In my view their evidence, for the reasons that I have referred to, has a ring of truth to it whereas the evidence of Mr White does not.
For those reasons I prefer the evidence of Miss Parnell and Miss O'Keefe where there are differences between their evidence and that of Mr White.
I find as a fact or as facts that the defendant was in that park, that he was confronted by Miss Parnell and Miss O'Keefe, that words were exchanged between them, unpleasant words. The exchange became more heated, that he advanced upon Miss Parnell, that she did put her hands up and may well have pushed him, that on that occurring he struck Miss Parnell.
I have not referred to the difference in the evidence of Mrs Parnell as to which side of the face of Miss Parnell a welt was showing. Obviously someone is mistaken about that, but in my view that is not of great moment in the circumstances.
I find he did -- the defendant did strike Miss Parnell to the face. That is an assault pursuant to the definition of assault in the Criminal Code. I am satisfied the prosecution have proved the charge the necessary degree."
4 It will be seen immediately that the task of the appellant in persuading me that his conviction should be quashed is formidable. That is because the learned Magistrate, who was entrusted with the primary responsibility of determining guilt or innocence, had the benefit of seeing and hearing the witnesses who appeared before him, and with that benefit reached firm conclusions on the question of credibility. In M v The Queen (1994) 181 CLR 487 Mason CJ, Deane, Dawson and Toohey JJ (at 493) put it this way:
(Page 5)
- "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
5 However, there will be circumstances in which even making full allowance for the advantage employed by the learned Magistrate in seeing and hearing the witnesses, an appeal court may consider a conviction to have been dangerous or unsafe. In M v The Queen (supra at 494 - 495) their Honours added:
"It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts
(Page 6)
- of criminal appeal by stating the propositions in the form in which they are set out above."
6 There is no doubt that these principles apply to an appeal against a finding of a Magistrate in petty sessions just as much as they do to an appeal from the verdict of a jury: Harvey v Matthews [1999] WASCA 58 at [11].
7 In civil cases there have been numerous statements about the importance which is to be attached to a trial Judge's conclusions about the credibility of witnesses. In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, Brennan, Gaudron and McHugh JJ put it this way:
"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'."
8 A more recent statement is that of McHugh J in Rosenberg v Percival (2001) 75 ALJR 734 at [41]:
"[41] One of the consequences of the 'advantage' of seeing and hearing the witnesses is that the trial judge is in a far better position than an appellate court to know what individual weight should be assigned to the various factors - credibility, matters for and matters against - that must be evaluated in making the ultimate findings of fact in the case. Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge or an oral trial before a judge and jury."
(Page 7)
9 The observations contained within Devries v Australian National Railways Commission and Rosenberg v Percival are as applicable to criminal proceedings before a Magistrate in petty sessions as they are to civil proceedings: Talbot v Lane (1994) 14 WAR 120 per Malcolm CJ at 142.
10 In the present case the learned Magistrate distilled the evidence which had been led at trial over the course of the morning. His reasons were delivered after the luncheon adjournment and they were quite extensive. The evidence of the various witnesses called for the prosecution and the evidence of the appellant was carefully reviewed. The learned Magistrate made reference to the fact that there were variations between what the two key prosecution witnesses had said in the course of their evidence when compared with what they had each said in statements made to investigating police. The variations were not identified in any detail, but accepting that these variations existed, the learned Magistrate nevertheless concluded that the testimony of the two key witnesses, Ms Parnell and Ms O'Keefe was given to the best of their recollection and truthful.
11 A Magistrate is, of course, required to give adequate reasons for the decision which he reaches. The reasons must be revealed to such an extent as to enable an appellate court to consider and determine whether or not the judgment is erroneous: Garrett v Nicholson (1999) 21 WAR 226 per Pidgeon J at 237. As Owen J pointed out in the same case (at 248 - 249):
"I would also add that it is necessary to look at the reasons as a whole to see if they give the sense of what was intended in a way that achieves the results to which I have referred. It is sometimes the case that by dissecting the reasons line by line, word by word the reader loses the sense of what is conveyed by a particular passage. It is often the case that the true sense can be gleaned only by looking at the passage in the context of the whole. In this way something which appears at first glance to be a material omission may be adequately explained."
12 In the present case, the learned Magistrate's reasons were entirely adequate in every respect. The appellant has sought to "dissect the reasons line by line, word by word" in very many areas with a view to seeking to persuade me that the decision reached by the learned Magistrate on the issue of credibility was wrong. This submission overlooks the essential advantage that the learned Magistrate had in
(Page 8)
- seeing and hearing the witnesses before him. He was in a far better position than I am to know what individual weight should be assigned to matters of credibility. As McHugh J pointed out in Rosenberg v Percival (supra), the case would need to be exceptional before an appellate court could set aside a Magistrate's finding on the ground that judging by the transcript insufficient weight was given to other facts and circumstances in the case. Yet that is what the appellant has sought to persuade me of here.
13 The prosecution case against the appellant was quite simple. On the evening of 31 October 2000 Ms Danielle Parnell (16 years) and her friend Kathryn O'Keefe (also 16 years) were out walking. Whilst walking through Woodvale Park on Trappers Drive, Woodvale, the attention of the two girls was attracted by two younger girls. According to Ms Parnell they were about 13 or 14 years of age. Ms Parnell then observed a girl being dragged towards her by a man. She said that he had the girl by the left shoulder. When asked what he was doing the man told Ms Parnell that somebody had tipped over his bins and that these were the people who had done it. According to Ms Parnell, the man then accused herself and her girlfriend of tipping over bins. A verbal altercation followed, during which the man let go of the girl he was holding and she ran away. The man and Ms Parnell then approached each other and according to Ms Parnell she was struck in the area between her cheekbone and neck on the right hand side. The blow that she received was wielded by the man to whom she was speaking. When she had recovered, Ms Parnell called the police.
14 Ms O'Keefe testified that whilst walking through the park she too had seen two girls approach Ms Parnell and herself and had then observed a man walking down the hill dragging a young girl who was calling out requesting to be let go. Ms O'Keefe said that she and her friend called out to the man to let the girl go and he did, with the result that the young girl and her friends ran away. Ms O'Keefe said that there was then a heated argument between Ms Parnell and the man over the question of who had knocked over his rubbish bins. According to Ms O'Keefe, she and her friend had made it clear that they knew nothing about what the man was talking about and that they had nothing to do with knocking over any of his bins. Ms O'Keefe's evidence as to what then occurred was in the following terms:
"And then what happened? --- And then he kept coming closer, stepping towards Danni, and I was a bit -- standing a bit off to the side. And he kept coming towards Danni and she kept
(Page 9)
- stepping backwards and -- because he was about the same height as her so she kept sort of -- like, we kept arguing with him and swearing at him and he kept accusing us of the bins and whatever was going on. And then I saw him take -- Danni was, like, going backwards and I saw him take a step towards her and punch her in the jaw -- in the face."
15 The version of events given by the appellant was entirely different. He testified that he was a 53-year-old sales consultant who resided at 1 Tara Court in Woodvale. On the night of 31 October he heard an altercation in the street which included the sound of breaking glass, noise and screaming. He went outside and saw youths in the process of knocking over a neighbour's bins at 4 Tara Court. A youth was in the process of jumping up and down on glass bottles that had rolled into the centre of the roadway and he was breaking them. The appellant said that he saw four or five youths in total and "four girls as well". He claimed that two of these girls were Ms Parnell and Ms O'Keefe. He was certain that they were there because he claimed to have followed them into the park area. He said that in the park he had approached the girls and requested that they come out of the darkness of the park into the light. The appellant contended that at that point the girls abused him with foul language. What then followed was testified to by the appellant as follows:
"Yes. And what happened then? --- Well, she wouldn't --- refused to come back into the light and I said, 'Do you know these boys?' I was more interested in the guys because the girls I had not actually seen pushing over the bins.
All right? --- The guys, yes.
And what -- ? -- And I said, 'You must know these guys, come offit'. They kept on saying, 'No, we don't know these guys'.
All right. And what happened then? --- Well, then this girl, Danielle, became more brazen. She -- up to that point, I think she was a little frightened because I sort of come out of nowhere and caught them all, you know, confronted them.
Right? -- And she the hit me in the chest. I didn't see it coming, it was dark, it was --
Well, let me stop you there. You've said that she was becoming more brazen. What do you mean by that? --- Oh, she started to abuse me, you know, turn it all round and like the other girls
(Page 10)
- started to tell me, 'Piss off, get lost. You -- you didn't see fuck all' you know, this sort of language. It was terrible, disgusting.
All right. And what happened then? --- Well, then I -- because she hit me in the chest, I took a step backwards and they disappeared off, they started to run into the darkness."
16 It will be seen from this review of the evidence that the determination of the case by the learned Magistrate involved a very stark decision as to who was telling the truth. Either the two girls were telling the truth when they contended that the appellant had struck Ms Parnell, or their evidence was in fact a concoction, and the true position was that testified to by the appellant.
17 The learned Magistrate clearly understood this and discounted the proposition that the two girls had concocted their story. His Worship concluded:
"I have referred to the fact that they have not identified Mr White but quite clearly, on the evidence before me it is Mr White who is the person who is alleged to have assaulted Miss Parnell, but in addition to that they did not attempt to cover up the use of what can be described --- at best be described as coarse language. Sixteen-year-old girls, one would not necessarily expect that they would use that sort of language, and it's inappropriate, but they did not attempt to cover up the fact that they did use that sort of language.
All those matters, in my view, indicate that the evidence that they gave today is evidence that is given to the best of their recollection, is evidence that is truthful, because had they wished to concoct the whole story then surely they would not have admitted to those things, and as I've said, they would have come to court and said, 'Yes, that is the man.' They did not."
18 The appellant has carefully sifted through the transcript of the evidence at trial and complains in essence that there were so many inconsistencies and contradictions within the evidence of the prosecution witnesses (in particular the evidence of Ms Parnell and Ms O'Keefe) that the learned Magistrate could not have considered their evidence to be "forthright, cogent and truthful" and therefore it could not have been preferred to his own testimony. However, this submission overlooks the fundamental propositions to which I have referred in relation to the
(Page 11)
- advantage which a trial Judge or Magistrate has in seeing and hearing the witnesses and in assessing their credibility.
19 The complaints made by the appellant about the inconsistencies in the evidence include the following:
Identification
20 The appellant contends that the evidence of Ms Parnell and Ms O'Keefe in relation to identification of Ms Parnell's alleged assailant varied on numerous occasions and in any event, at no time identified him. However, as the learned Magistrate pointed out, there was no doubt that if anybody assaulted Ms Parnell it was the appellant. It was he who was involved in the confrontation. Variations in the way in which Ms Parnell's assailant was identified either in court or to police does not, in my view, advance the appellant's case.
Where the girls were walking to
21 The appellant drew attention to the fact that Ms Parnell claimed in evidence that she and Ms O'Keefe had walked to a location in Woodvale Waters about 20 minutes from her house, whereas Ms O'Keefe said that they had walked up to the shops and around the shopping centre near Ms Parnell's house in Penny Lane. This was apparently some distance from Woodvale Waters. However, Ms O'Keefe made it clear that after having walked around the shops she and a friend had walked back through a park which was at the bottom of Ms Parnell's street. I can see nothing of any significance in the contradiction that there may exist between the location to which the two girls walked. At the end of the day, there is no doubt that they were in Woodvale Park and that this was where the incident occurred.
The description of the young girls first seen in the park
22 The appellant placed great importance upon the fact that there were variations in the evidence of Ms Parnell and Ms O'Keefe respectively as between statements they had made to investigating police and the testimony they gave in court as to the number of girls who had approached them in the park. The appellant referred to statements made by each of the girls to investigating police in which Ms Parnell said a young girl had come running to them and in which Ms O'Keefe had said nothing about any girl running up at all. There was full cross-examination
(Page 12)
- by counsel for the appellant in relation to these inconsistencies, and the learned Magistrate clearly took account of the answers which were given by Ms Parnell and Ms O'Keefe to the questions in this regard. I can see nothing in the slight variations between the sworn testimony and the statements to police which would suggest that Ms Parnell and Ms O'Keefe respectively were to be disbelieved as witnesses.
The incident
23 The appellant placed great store upon the fact that there was variation between the accounts of Ms Parnell and Ms O'Keefe in relation to the way in which the alleged assault had occurred. He pointed to the fact that Ms Parnell, in a statement to police, had said that she put her right hand up "to get some space" as the appellant kept coming closer to her but that the appellant had then pushed into her hand with his shoulder, causing her to step back. When she gave evidence she said there was something akin to pushing going on between the two of them and that it as mutual. She added that she put up both hands because the appellant kept coming closer to her and conceded that she may have pushed the appellant in the chest. Her precise evidence about what occurred was as follows:
"PROSECUTOR: Who approached who? --- I think it was mutual, because I was --- yeah. And then all I like really remember is like, I don't know, I just got hit right there, and I just remember stepping back --
Right. When you say 'there', were you -- again if you can just describe where --?-- On top of my cheekbone to the -- no, bottom of my cheekbone to the top of my neck.
PROSECUTOR: And you're indicating --?-- And that's what --
-- on the right-hand side? --- Yep.
And how did -- who struck that blow? --- The man that was dragging the girl into the park."
24 Ms Parnell was extensively cross-examined on the subject, so that the learned Magistrate had the benefit of a very stringent testing of her testimony. An extract from that cross-examination is as follows:
"All right. What about this suggestion that he shouldered into your hand? --- Yeah, that's --
(Page 13)
- You haven't given any evidence about that? --- Okay, that's when he kept coming closer to me and I put my hands up and it just sort of like made it go like that with his shoulder.
All right. Well, let's just slow you down a little bit. You've already spoken about a shove -- well, perhaps not a shove but a contact made with his chest by your hands. This shoulder incident --?---I think that's what that was. It's the same thing.
MR ANDREWS: It's the same thing? --- Yes.
Well, was it his shoulder or was it his chest? --- I don't know.
Well, you seemed pretty certain when you gave evidence that it was his chest? --- Don't know. There's not much --
You don't know? --- not much room between his shoulder and his chest.
In fact you don't really know much at all about this because it never happened, did it? This is all just a figment of your imagination? --- Yes.
That's the truth of the matter, isn't it? --- No, not at all."
25 Ms O'Keefe's testimony was criticised because it was put that she failed to mention any "shoulder barging incident". She too was extensively cross-examined, an extract from that cross-examination being as follows:
"And did she do anything as he came closer towards her? --- Well, she was stepping backwards and was walking backwards.
All right. Well, you just put your hands up in front of your chest palms out, so is that what she did? --- Yes.
All right. Well, she did a bit more than that, didn't she? She actually pushed him away as he got close to her? Did you see that? --- It could have happened but I'm -- not that I remember.
All right. Could have happened but you don't remember? --- No.
So it wasn't really the case then that they sort of confronted each other, that the confrontation was mutual. She walked forward
(Page 14)
- and he walked towards her, that's not what happened, is it? --- How do you --
All right. Well, perhaps it was a poorly -- it was a poor question. You've said in evidence that he kept stepping closer towards her --?---Yes.
MR ANDREWS: --- causing her to step backwards? --- Yes, she was stepping backwards.
All right. To a point where she puts her hands up? --- Yes.
He may or may not have struck or contacted with this male person? --- Yes.
All right. So it's not the case then, I take it, that she ever went towards him at any stage, confronting him - Danielle, I'm talking about? --- Um --
He was the aggressor, I suppose is what I'm asking? --- Well, yes, yes. I don't -- I -- she might have -- he might have come against her hands when he was walking towards her but I don't remember seeing --- I don't think I saw her push him."
26 The appellant also criticised the evidence of the two girls in relation to the identification of where it was that Ms Parnell had been struck. In that respect Ms Parnell had said that she had been struck on the bottom area of her cheekbone to the top of her neck. When cross-examined she indicated with a fist against her right jaw that this was the area in which she had been struck, but when pressed further she identified an area from the bottom portion of her jaw to the top of her neck. The following passage was referred to as evidence of vacillation on the part of Ms Parnell in her testimony.
"All right. Where did he actually strike you? You said from your cheekbone to your neck. It's a pretty big area, but when you actually indicated you actually were indicating to your jawbone? --- I said the bottom of my jawline to the top of my neck.
Well, you didn't actually. You said the bottom of your cheek to your neck. So what was it? --- Bottom of my jawbone to the top of my neck.
Bottom of --- so, what, both places? --- Just like that.
(Page 15)
- Well, you're showing a fist and you just put the fist up against your right jaw in the manner that I'm showing you now? --- Yes.
Well, that doesn't suggest to me that there was any contact with your neck? --- All right, the top of my neck. I had a bruise from here to here.
MR ANDREWS: All right. So you're showing the bottom portion of your jaw and an area of neck immediately below that area of your jaw, and you're showing the right-hand side of your face, and that's where you say he struck you? --- Yes."
27 There was also criticism of Ms Parnell in that she had stated in her evidence that she had been hit with a fist which "must have been his left". This, it was said, showed indecision on her part and a preparedness to guess at an answer.
28 Reliance was placed upon the fact that Ms O'Keefe, in cross-examination, described the blow to Ms Parnell as a blow to her face. She said:
"All right. And just point again to your face where you say you saw the punch connect? --- Around the cheek.
Right. So the right hand side cheek area? --- Yep.
Right. Are you fairly certain about that? You couldn't be mistaken? --- I could be mistaken.
Well, how mistaken could you be? Right up to this point in time you haven't suggested you could be mistaken. You seemed very positive when my friend was asking you where the punch was. You indicated to his Worship twice where you say the punch connected; now you're telling me you could be mistaken. So what is the situation? --- Well, I was standing on her right side and I saw him strike her face, while on the side that I was facing so I assumed that was --- that was her right side, that I was standing on her right side."
29 In my view the learned Magistrate had the full benefit of seeing and hearing the witnesses under examination and intensive cross-examination on points such as these. In concluding as he did that notwithstanding any variations that there may have been between the evidence of the two witnesses themselves and between what they may have said to police and
(Page 16)
- what they said in court, they were still truthful, the learned Magistrate enjoyed the advantage in reaching that conclusion. I am unable to accept that the points raised by the appellant demonstrate that the learned Magistrate was wrong in concluding that Ms Parnell and Ms O'Keefe were witnesses to be believed.
30 There were many other examples of alleged inconsistencies between the evidence of the two girls and between their evidence in court and statements made to investigating police. It is unnecessary for me to detail them. It is sufficient to say that as with those which I have already identified, the learned Magistrate must clearly have understood and taken into account each one of them in reaching the conclusion he did on the issue of credibility. It was unnecessary, in my view, for the learned Magistrate to deal with each alleged area of inconsistency and to reach a conclusion in relation to it. It was sufficient that he conclude that, despite such inconsistencies as did exist, the evidence of Ms Parnell and Ms O'Keefe was entirely "forthright, cogent and truthful" and to be preferred to the evidence of the appellant. I am unable to accept the appellant's basic proposition that the demonstrated inconsistencies in the testimony of the two girls and as between their testimony and other evidence and/or statements made to police officers fundamentally destroyed their credibility. That in the end was the very question which the learned Magistrate was called upon to determine and which he did, albeit against the appellant.
31 The grounds of appeal contend in addition that the learned Magistrate may have been confused about the appropriate standard of proof. Although not strongly pressed by the appellant (indeed the third ground of appeal was inserted by Templeman J when leave to appeal was granted) it seems to me apparent from the reasons of the learned Magistrate that his Worship did apply the criminal standard of proof. He made reference to the need for the prosecution to prove the case beyond reasonable doubt and concluded that he was satisfied that the prosecution had proven the charge to that degree. I am unable to find any indication that the learned Magistrate may have thought at any time that proof on the balance of probability was appropriate.
32 In my view the appellant has been unable to make out any grounds upon which his conviction by the learned Magistrate could be said to be unsafe and unsatisfactory. Quite simply, the appellant was convicted because the learned Magistrate believed the evidence of Ms Parnell and Ms O'Keefe and preferred it to the evidence of the appellant. He accepted the evidence of the two girls as proof beyond reasonable doubt of the
(Page 17)
- charge alleged and in my view he was entitled so to do and there is no basis upon which the conviction could be quashed. I would therefore dismiss this appeal.
3
7
1