Whitehead v Procopis
[2005] WASC 195
WHITEHEAD -v- PROCOPIS [2005] WASC 195
| Link to Appeal : | [2005] WASCA 249 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 195 | |
| Case No: | SJA:1031/2005 | 2 AUGUST 2005 | |
| Coram: | HASLUCK J | 2/09/05 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL JOHN WHITEHEAD BENJAMIN JOHN PROCOPIS |
Catchwords: | Criminal law Assault Nature of prosecution case Issues of causation and duplicity Whether events amounted to one continuous assault Turns on own facts |
Legislation: | Criminal Code, s 222, s 317(1) Justices Act 1902 (WA), s 43 |
Case References: | Campbell v The Queen [1981] WAR 286 Carden v The Queen (1992) 8 WAR 296 Gardner v Caporn [2004] WASCA 14 Gardner v Caporn [2005] WASCA 153 Garrett v Nicholson (1999) 21 WAR 226 Glennon v The Queen (1999) 179 CLR 1 Harling v Hall (1997) 94 A Crim R 437 Haskett v Police [2005] SASC 174 Liberato v The Queen (1985) 159 CLR 507 Lomans v Morony [2000] WASCA 90 M v The Queen (1994) 181 CLR 487 R v Rippingdale (1999) 109 A Crim R 304 Verhoeven v Ninyette (1998) 101 A Crim R 24 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Gebert, Haley & Black v The Queen [1992] SASR 110 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 R v Morrow & Flynn (1990) 48 A Crim R 232 R v Trifyllis [1998] QCA 416 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
BENJAMIN JOHN PROCOPIS
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MRS J G MUSK SM
File No : FR 1671 of 2004
Catchwords:
Criminal law - Assault - Nature of prosecution case - Issues of causation and duplicity - Whether events amounted to one continuous assault - Turns on own facts
(Page 2)
Legislation:
Criminal Code, s 222, s 317(1)
Justices Act 1902 (WA), s 43
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr L Rayney
Respondent : Ms S M De Maio
Solicitors:
Appellant : Lewis Blyth & Hooper
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Campbell v The Queen [1981] WAR 286
Carden v The Queen (1992) 8 WAR 296
Gardner v Caporn [2004] WASCA 14
Gardner v Caporn [2005] WASCA 153
Garrett v Nicholson (1999) 21 WAR 226
Glennon v The Queen (1999) 179 CLR 1
Harling v Hall (1997) 94 A Crim R 437
Haskett v Police [2005] SASC 174
Liberato v The Queen (1985) 159 CLR 507
Lomans v Morony [2000] WASCA 90
M v The Queen (1994) 181 CLR 487
R v Rippindale (1999) 109 A Crim R 304
Verhoeven v Ninyette (1998) 101 A Crim R 24
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
(Page 3)
Case(s) also cited:
Gebert, Haley & Black v The Queen [1992] SASR 110
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Morrow & Flynn (1990) 48 A Crim R 232
R v Trifyllis [1998] QCA 416
(Page 4)
- HASLUCK J:
Introduction
1 The appellant, Michael John Whitehead, was charged that on 8 December 2003 at Applecross he unlawfully assaulted James Ian Lloyd and thereby did him bodily harm.
2 This is an appeal against the decision of Her Worship Mrs J Musk SM given on complaint number 1671 of 2004 in the Court of Petty Sessions at Fremantle on 9 March 2005, whereby the appellant was convicted of the offence in question. I understand that pursuant to provisions of the Sentencing Act 1995 (WA), the appellant was not sentenced but placed on a pre-sentence order for a prescribed period.
The complaint
3 The complaint was laid pursuant to s 317(1) of the Criminal Code.
4 Section 317(1) provides that any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime. By s 1 of the Criminal Code the term "bodily harm" means any bodily injury which interferes with health or comfort. I note in passing that the use of the word "thereby" in the statutory provision indicates that there must be a causative link between the assault complained of and the bodily harm that is said to have been occasioned by the assault.
5 It appears from the transcript of the proceedings in the Court of Petty Session that when the matter was brought on for hearing before the learned Magistrate on 26 November 2004 defence counsel confirmed that a plea of not guilty had been entered to the charge. In the course of some opening observations defence counsel indicated that the complaint arose out of an altercation in a street at Applecross between the complainant, James Ian Lloyd, and the appellant. It was not in dispute that the appellant drove off in his car after the altercation, but came back later with his father to apologise for what had happened.
6 It was said by defence counsel that the issues were confined to what happened during the course of the altercation and "whether there was any intention or action on the part of the defendant, which might have caused the bodily harm." The causation issue proved to be a central issue at the hearing in the Court of Petty Sessions and on the appeal.
(Page 5)
The prosecution case
7 The prosecution witnesses had to be called out of order, presumably due to demands upon the time of the witnesses in question. This was done without objection.
8 Expert evidence was adduced from two medical practitioners, being a Dr G Linfoot and Dr G Buters, both of whom had treated Mr Lloyd, and from a specialist in radiology, Mr Nguyen.
9 Dr Buters treated the complainant at the St John of God's Hospital Emergency Department at midday on 8 December 2003; that is, shortly after the incident. He made notes to the effect that the complainant had been assaulted, he was pushed backwards by the assailant, fell over a low retaining wall and was complaining of pain to his lower back. He appeared to be tender over his lower lumbar vertebra, and most tender over L5 which is the lowest lumbar vertebra. X-rays were carried out which revealed a fracture at L3 (the middle lumbar vertebra) but Dr Buters could not conclude whether this was an old or new fracture. There were abrasions over the right kidney, on the right thigh and on the right elbow.
10 Under cross-examination Dr Buters agreed he had no information in his notes about the patient receiving a kicking. It was possible the injuries resulted from kicking but they were not typical of injuries received from being kicked.
11 Dr Linfoot said that the complainant had been his patient since 1989. He saw him on 23 December 2003 (that is, a fortnight after the incident). There was no evidence of abrasions (which had probably healed) but his lumbar spine movements were restricted. He did not believe that the complainant had any previous back injuries.
12 Under cross-examination Dr Linfoot doubted that a physical blow from a human being could fracture a vertebra. The fracture sustained by the complainant was more likely to be a compression fracture that came from sitting or falling heavily rather than a direct blow.
13 Thai Nguyen was a radiologist who spoke to a report concerning an MRI scan undertaken on 16 December 2003 (that is, a week after the incident) in response to a referral by Dr Buters of the St John's Emergency Department. His conclusion from the MRI report was that "there is a recent fracture involving the L3 vertical body with an oblique fracture line". There was some compression of the vertebra body suggesting a
(Page 6)
- crush fracture. There was bone marrow oedema "…which means that there is a reaction within that vertebra body consistent with a recent injury."
14 Under cross-examination he said that vertebrae fractures were usually due to axial forces such as severe bending which causes the spine to crush or compress.
15 A resident in the area, Mrs Holt, spoke of a vehicle turning into Spey Road and coming to an abrupt halt. She saw the driver leave the vehicle with an angry demeanour and this was followed by shouting voices. About 30 or 40 seconds later the driver got back into the car, slammed the door and drove off.
The complainant's evidence
16 The complainant gave evidence to the effect that he was 60 years of age and his occupation was that of dental surgeon. He resided at 2 Spey Road, Applecross. In the course of his evidence-in-chief Mr Lloyd described the layout of his premises including reference to a low wall retaining his front garden. This abutted the footpath.
17 The complainant went on to say that on the morning of 8 December 2003 he was on the property side of the retaining wall planting some petunias. His attention was attracted to a white vehicle which skidded around the corner and accelerated into Spey Road at speed. By the time the vehicle approached the complainant's property he was outside by the wheelie bin on the footpath. It was there that he waved his hand up and down as a request to the driver to slow down. On his account, the vehicle braked and skidded to a halt. The driver got out and approached Mr Lloyd in what the latter took to be a threatening manner, yelling out: "You silly old bugger".
18 Mr Lloyd referred to being punched and receiving blows to the head. He then gave evidence to this effect (transcript page 59/AB72C):
"Okay. So then what happened?---I was pushed onto the low retaining wall on my right side, and I slipped down into the foetal position to get as much protection as possible. My back was, I feel, pointing towards him. I was receiving blows to my shoulders, and my - - my - - my upper arm, and also to my - - I think it was to my left leg, and also to the - - and to the - - and to my back, and then I felt a sharp pain in my back.
(Page 7)
- Where were you when you felt the severe back pain?---I was then - - I'd slipped down onto the pavement. At that point, it felt as though there was - - I mean I couldn't see anything, because I was just not going - - game to look up. I - - I felt as though there was a very heavy weight being pushed on me, at that time, so whether, in fact, I was being knelt on, I don't know.
PROSECUTOR: Okay. Did you come into contact with the wall, at any stage?---Only to rest on the top, and to slip down, because I grazed all the inside of my arm, and the outside of my right leg. It wasn't - - it wasn't a forceful bang on the wall. It - -
What's the - -?---I landed on - - I actually - - basically, I landed on the garden, and slipped - - tried to protect myself, and slip down the wall.
And is this on the footpath side, or the other side?---This was on the footpath side.
Right. So you said you grazed your elbow and your thigh?---Yep.
That came from the wall?---From the limestone wall; yes. It's a rough surface.
Okay. Did you back come into contact with the wall?---No, no.
Are you sure of that?---Yes. My back was in - - was on the pavement. I was curled up."
19 Some further exchanges occurred. Mr Lloyd then went on to give further evidence as follows (transcript page 61/AB74A):
"Okay. So you've now - - we've got you lying, essentially, on the pavement. You felt a severe pain in your lower back?---Yeah. I shouted, at that point, 'Enough, enough. That's enough', and the assailant stopped. He then walked away from me, shaking his hands, saying 'Fuck off, fuck off, fuck off', got into his vehicle, and then drove up Spey Road.
Okay?--- - - to the junction of Matheson.
Do you recall the last blow that was delivered to you?---Probably in the - - in - - no. I'll have to be honest; no.
(Page 8)
- When you felt the severe pain in your lower back, at what time did you feel that, in relation to the blows that were - -?---Towards the end - -
- - being delivered?---Towards the end of the blows - - towards - - towards the end of the - - the attack. That's why I said 'Enough, enough', because I knew, at that point, that I'd been seriously injured."
20 Mr Lloyd was cross-examined at some length. It then became apparent that the hearing could not be completed and arrangements were made for the matter to be dealt with at a resumed hearing on 9 March 2005. Importantly, for present purposes, defence counsel at that stage sought to determine the exact basis upon which the prosecution case was being presented to the Court.
21 Defence counsel said that the defence was proceeding on the basis that the bodily harm alleged was the injury to the back as distinct from grazes or cuts. He said the prosecution could not "run it both ways" otherwise it would be duplicitous (transcript page 121/AB134B).
22 The prosecutor said that the bodily harm being alleged was an injury to the spine, and not necessarily just the fracture to the bone, but the general injury to the lower back area. He confirmed that he was not relying on the abrasions that had been described or on bruises to other parts of the body, other than the lower back.
General observations
23 Before turning to events at the resumed hearing, it will be useful to pause and make some general observations about the nature of the prosecution case.
24 In any charge of a criminal offence where the accused is alleged to have brought about a particular result an issue of causation arises. The prosecution must prove beyond reasonable doubt that the accused caused the particular result mentioned in the charge (in this case, bodily harm).
25 It would seem to be enough if juries are told that the question of cause for them to decide is not a philosophical or scientific question, but a question to be determined by them applying their commonsense to the facts as they find them appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Campbell v The Queen [1981] WAR 286.
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26 It follows that juries are frequently told that it comes down to a matter of circumstance and degree. The accused would be criminally responsible if, beyond reasonable doubt, it was found that bodily harm was suffered in a way likely to result from his unlawful act. Would an ordinary person, then and there at the time the accused did the unlawful act, have foreseen that injury was likely to be sustained in the manner in which injury was in fact sustained by the complainant?
27 The fact that a conclusion is arrived at that the accused's unlawful act is not the sole cause of the injury is not decisive if in some way his act is a real and substantial part of the cause of the ultimate injury.
28 However, there will be no criminal responsibility where the chain of causation is broken by some intervening agency. The intervening agency may be the actions of the victim or of some other person, or it may be some natural phenomenon. However, the intervention must be significant. If it can still be said that the result charged would not have occurred "but for" the action of the accused, causation is established.
29 When all of this is applied to the circumstances of the present case, it is apparent that, in the absence of any request for particulars before or at the commencement of the hearing, the prosecution was entitled to present a case along these lines. The appellant punched, pushed and kicked the complainant. These acts could be regarded as separate assaults but as the acts all occurred in less than a minute the cluster of events, being essentially one transaction, should be characterised as one assault; that is, the assault the subject of the charge. That assault, viewed in a commonsense way caused an injury to the complainant's lower back (being the bodily harm the subject of the charge) in that the injury would not have occurred but for the action of the accused. In other words, it was reasonably foreseeable that the cluster of events comprising the assault might result in the complainant falling heavily to the ground. Thus, irrespective of whether the lower back injury resulted from a blow inflicted by the accused or a heavy fall during the course of the assault, the appellant's act could be characterised as a real and substantial cause of the bodily harm complained of.
30 On this view of the matter, provided the learned Magistrate was satisfied that the lower back injury was a recent injury and was suffered during the cluster of events comprising the assault, it was open to the Magistrate to find the charge proved without necessarily having to establish whether the injury was occasioned by a kick or a fall.
(Page 10)
31 I will return to these general observations later. For the time being it is sufficient to note that, notwithstanding the absence of any attempt by defence counsel to seek particulars as to what facts, matters or events comprised the assault mentioned in the charge, a line of argument seems to have been advanced by defence counsel that the prosecution case could not succeed unless the prosecutor established that the lower back injury which was said to constitute the bodily harm was caused by a kick or blow inflicted by the appellant. To my mind, as appears from my observations concerning causation, this line of argument, in circumstances where the relevant cluster of events can properly be viewed as one transaction, is seriously flawed.
The resumed hearing
32 At the resumption of the hearing on 9 March 2005 the prosecution case was supported by some additional witnesses concerning the events on the day in question. A house painter, Mr Kalavroutziatis, spoke of seeing a white car doing a "burn out" in Spey Road. The driver stopped the car, left the vehicle, ran towards the old man "and as he got closer, his fist connected with the old guy's face. I heard it perfectly from where I was standing" (transcript page 6/AB162D). When asked how many times the defendant touched the old man, the house painter said: "Three times, one punch, two kicks on the floor" (transcript page 7/AB163D).
33 Mrs Lloyd said she heard the noise of the affray. She found her husband on his hands and knees, struggling to get up. He said: "I've been beaten up and my back's buggered" (transcript page 32/AB188).
The defence case
34 The appellant gave evidence on his own behalf to the effect that he was driving his vehicle in Spey Road on the day in question. On his account of what happened, the complainant stepped onto the road, blocked his way, and looked as though he was about to throw a petunia pot at the car, so he (the appellant) brought the car to a halt. This led to some verbal exchanges.
35 According to the appellant, he felt threatened, so in self-defence he put his head down and sort of half-tackled the complainant. He thought he was going to get struck with a gardening tool. On his account the complainant fell back on a retaining wall and received a graze on his back. The appellant said that there were "no fists thrown or anything of that nature" (transcript page 66/AB22D).
(Page 11)
36 Like the complainant, the appellant was taken through the details of the encounter by his own counsel at some length and was then cross-examined about his account. His father, Mr J C Whitehead, was called by the prosecution but gave evidence favourable to the appellant concerning the events when he and the appellant returned to the complainant's property after the incident.
37 The appellant's counsel said at the commencement of his closing address that "there's no real question of provocation, or self-defence or anything like that … if it be reasonably possible that his back was injured other than as the result of a kick then he must be acquitted" (transcript page 96/AB252).
The findings
38 The learned Magistrate proceeded to make her findings. In doing so, she reviewed the evidence at some length including reference to the evidence given by the medical witnesses, Dr Linfoot and Dr Buters, and the possibility that the complainant's concerns about his back were referable to events other than the incident the subject of the prosecution. The Magistrate found that the complainant gave his evidence in "a convincing and credible manner" and was supported by the evidence of an entirely independent witness, Adam K. The defendant's evidence was "simply not plausible, not credible and was internally inconsistent". The Magistrate accepted "the complainant's version of this incident" (transcript page 119/AB275C/D).
39 The Magistrate concluded in her summing up in this way (transcript page 120/AB276E):
"On the basis of all of that evidence I find a back injury was caused when the complainant was lying bunched up in the foetal position in front of the small retaining wall on the footpath while pinned to the wall and being pummelled by blows - - from the defendant. And given the position of the complainant on the ground and the height of the defendant and the fact that the complainant had his eyes closed and Adam K's evidence on top of all that, I find these blows must have been from a kick administered by the - - sorry, the defendant to the complainant. I accept the injuries including the back injury were caused by the defendant's assault on the complainant that day, and that the back injury in particular was caused by one of those kicks landed by the complainant on the defendant .
(Page 12)
- On that basis, I am satisfied beyond reasonable doubt that this charge is proved."
Leave to appeal
40 On 15 March 2005 Simmonds J allowed to the appellant leave to appeal on the following grounds:
"(a) The learned Magistrate erred in convicting the Applicant, the verdict being against the weight of the evidence and not reasonably open on the facts;
(b) The learned Magistrate erred in convicting the Applicant by failing to consider whether the version of events put forward by the Applicant as an explanation for the causation of the injuries sustained by the complainant was on the evidence a reasonable possibility;
(c) The learned Magistrate erred in dealing with the matter essentially as a contest between the evidence of the complainant and the prosecution witnesses on the one hand and the evidence of the Applicant on the other."
41 In essence, the appellant's case on appeal was that the bodily harm alleged to have been occasioned by the matters complained of was an injury to the lower back. The prosecution had to establish that this was caused by a deliberate kick to the back. A case of this kind was not established beyond reasonable doubt by the evidence.
42 It was said further that the only evidence that might lead to an inference that the injury was caused by the kick to the back was the complainant's evidence that he felt a sharp pain when he felt blows to his back. It was said that this alone could not negative an inference that the actual injury constituting the bodily harm occurred earlier. In circumstances in which an inference was open that the injury complained of was caused not by a kick to the back but by the complainant's fall there was insufficient evidence before the learned Magistrate to sustain a finding of guilt beyond reasonable doubt.
43 Before turning to the grounds of appeal in more detail. It will be useful to look at certain statutory provisions and legal principles bearing upon an appeal of this kind.
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Statutory provisions
44 Appeals from courts of summary jurisdiction were formerly governed by the Justices Act 1902 (WA) but are now covered by Pt 2 of the Criminal Appeals Act 2004 (WA). By s 4 of the latter Act the Supreme Court may dismiss or allow the appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal not withstanding that a ground of appeal has been decided in favour of the appellant.
45 By s 39, an appeal court must decide the appeal on the evidence and material that were before the lower court, but does not prevent consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.
46 A Magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226.
47 The finding of guilt is not to be reached simply by rejecting the case put forward by the accused. The Court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.
48 In Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Ipp J made these observations at 448:
"It is correct that primary findings of fact will not ordinarily be interfered with, provided there is evidence to support those findings, and provided the appellant fails to establish that the court below has not taken proper advantage of seeing and hearing the witnesses. Nevertheless, when findings as to the primary facts are attacked, and the inferences drawn from the primary facts are said to be wrong, it remains the task of an appellate court in an appeal by way of rehearing to embark on an analysis of the evidence, documents and objective facts in order to determine the issues afresh: see Wing Luck Foods v Lay Choo Lim [1989] WAR 358."
49 Ipp J went on to say in Vrisakis (supra) at 448 that a decision of a court of summary jurisdiction is not regarded with the same sanctity as the verdict of a jury. If it is argued that there was inadequate evidence to
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- justify a conviction, and the appellant identifies particular findings which, it is submitted, are not warranted by the evidence, it is the task of the respondent to provide, in turn, an analysis of the transcript which refers to the evidence which, in the respondent's submission, bears out the findings: see Carden v The Queen (1992) 8 WAR 296.
50 If the appellate court, having made its own independent assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt, then that is a doubt which the primary court ought to have had and the appellate court will usually provide relief, especially where findings depend on credibility: M v The Queen (1994) 181 CLR 487; Glennon v The Queen (1999) 179 CLR 1.
51 The relief may take the form of remitting back to the court below, unless the appellate court considers that no substantial miscarriage of justice has occurred. The task is to balance the public interest and the conviction of a wrongdoer, the interests of an accused person, and the pragmatic considerations of cost and efficiency in the administration of justice. Where the error is fundamental, the interests of justice may be best served by quashing the conviction and sentence, and substituting a verdict of acquittal: Verhoeven v Ninyette (1998) 101 A Crim R 24.
52 Let me now proceed to some further observations about the present case which are related to matters I touched on in my earlier general observations concerning causation.
Further observations
53 The prosecution led evidence to this effect. The complainant motioned to the appellant to slow down as he drove his vehicle along Spey Road. The appellant brought his car to a halt and moved towards the complainant on foot. There was then a short physical altercation in the course of which the complainant finished up on the ground in the vicinity of the low retaining wall. The encounter was very brief – less than a minute according to the independent witness, Mrs Holt. The appellant returned to his vehicle immediately afterwards and drove away. The complainant's wife arrived on the scene to find the complainant complaining of an injury to his lower back. There was expert evidence that the complainant had suffered a recent injury to his lower back area at the L3 vertebra.
54 I pause here to observe that there was no real dispute as to the sequence of events I have just described. I note also that an independent witness, the house painter Adam K, gave evidence confirming this
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- sequence of events, although he was challenged by defence counsel as to various matters of detail.
55 The charge before the Court was that on 8 December 2003 at Applecross the appellant unlawfully assaulted the complainant and thereby did him bodily harm. To my mind, it was clearly open to the prosecution to adduce evidence from the complainant and Adam K with a view to establishing that the appellant used his hands and feet in such a way that this cluster of events comprising the brief altercation amounted to an unlawful assault, and that the bodily harm complained of, being an injury to the lower back area, was caused by this cluster of events; that is, the injury would not have occurred but for the conduct of the appellant. In other words, given the brevity of the time involved, it was sufficient for the prosecution to establish beyond reasonable doubt that the complainant's injury was a foreseeable consequence of the appellant's actions.
56 There may be some cases in which there is a clear separation between certain of the events in question. This might require that the events comprising the altercation be characterised not as one assault but as two discrete assaults. In that event, it would be open to defence counsel either before or at the hearing to seek particulars and to compel the prosecution to specify which punches or blows or cluster of events caused the bodily harm complained of. The provision of particulars could well be important because, in such a case, certain lines of argument such as self-defence or provocation might be available as to one of the assaults but not as to the other.
57 The term "assault" is defined in s 222 of the Criminal Code as follows:
"A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault."
58 A definition of this kind clearly allows for the possibility that a flurry of blows could be characterised as a series of discrete assaults. However,
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- the decided cases indicate that ultimately the question of whether one continuous assault has occurred, or whether there are separate assaults, is a matter for applying a commonsense approach to the facts: Lomans v Morony [2000] WASCA 90.
59 Various cases suggest that if there is some likelihood that the charge is bad for duplicity then the application for particulars should be made at the commencement of the trial. In Lomans v Morony (supra) Scott J was of the view as to the matter before him that there was only one incident and one continuous assault, which occurred both inside and outside the licensed premises in question, with the result that the learned Magistrate did not err in law in failing to require the prosecution to properly particularize the charge against the appellant.
60 Issues of this kind came under notice in Gardner v Caporn [2004] WASCA 14.
61 The Gardner case (supra) concerned an appeal by the appellant against his conviction of the assault of one John Duncan causing Mr Duncan bodily harm. When the matter came on before Pullin J as an appeal to a single judge his Honour noted that the appellant was said to have been involved in an argument with his former female companion Ms Allardyce. The latter's current boyfriend, Mr Duncan, came in from next door to see if Ms Allardyce was in need of help and this led to an altercation in which the appellant swung five punches at Mr Duncan; one of these struck Ms Allardyce in the face and she fell to the floor unconscious, and three of them struck Mr Duncan in the head, causing him bodily injury to the face.
62 The appellant argued before Pullin J that the Magistrate erred by failing to hold that the charge was bad for duplicity. The appellant relied upon s 43 of the Justices Act 1982 which states that a complaint should be for one matter only and not for two or more matters. The general rule is that a defendant should not have to defend himself on two charges in one: Vrisakis v ASC (supra). On the other hand, the respondent argued that R v Rippindale (1999) 109 A Crim R 304 is authority for the proposition that duplicity is a pleading point and that the point must be taken at the commencement of the hearing.
63 Justice Pullin was of the view that any objection to a charge for any defect apparent on its face must be taken before the prosecution case commences, and not afterwards. As a result the ground of appeal concerning duplicity must fail.
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64 His Honour went on to make these observations at par 11:
"There is, however, a second reason for dismissing this ground of appeal. The prosecution submitted that the charge was concerned with one continuous assault. Whether or not one continuous assault has occurred, or whether there are separate assaults, is a matter for applying a common-sense approach to the facts: Morrow & Flynn v The Queen [1991] 2 Qd R 309 at 312; Lomans v Morony[2000] WASCA 90. Senior counsel for the appellant conceded that if the correct conclusion was that the complaint alleged only one continuous assault, then this ground must fail. In my opinion, the complaint does allege only one continuous assault. It commenced in the hallway, when the appellant seized Mr Duncan by the throat, and continued when the appellant propelled Mr Duncan into the other room and aimed five blows at him, two of which, although aimed at Mr Duncan, missed him, and three of which struck him in the head and caused him bodily injury."
65 The appellant took the matter further on appeal to the Court of Criminal Appeal: Gardner v Caporn [2005] WASCA 153. Steytler P was of the view that the appeal must be allowed and the conviction quashed. However, Wheeler and Roberts-Smith JJA, as the two members of the Court of Appeal comprising the majority, were of the view that the appeal should be dismissed.
66 Justice Roberts-Smith noted at par 99 that the appellant had requested particulars of the charge prior to the hearing before the Magistrate. The prosecution declined, but asserted that the whole course of the appellant's conduct encompassed one event. No submissions was made, nor rulings sought, at the commencement of the trial that the charge was duplicitous. The prosecutor then opened his case, led evidence and closed the prosecution case. At that point, counsel for the appellant submitted the complaint was bad for duplicity because there were different blows constituting separate assaults which may have caused different injuries. The Magistrate rejected the submission, holding that the incident was properly charged as one offence because it was one continuous course of conduct. This view of the matter was sustained by Pullin J when the matter was taken on appeal.
67 It was against this background that Roberts-Smith JA went on to make these observations at par 205 – 206:
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- "105. It cannot be the law that every single blow (or series of blows) in a continuous assault must be charged as a separate assault. That conclusion does not change because each blow causes a different injury to the victim. It may be that in a particular case, the first blow (which perhaps causes a disabling injury) is justified as being in self-defence or provocation but immediately succeeding blows causing further injuries are not. That possible outcome does not dictate the charging of them as separate assaults.
106. The authorities relied upon by the appellant do not lead to any different conclusion."
68 His Honour then went on to review a number of authorities bearing upon the issue of duplicity including various cases of assault. In the course of that review, his Honour made these observations at par 128:
"Haskett v Police [2005] SASC 174 was another single Judge appeal from a conviction on one count of assault occasioning bodily harm, but in which a different outcome was arrived at. The prosecution case was relevantly that the appellant who had been a passenger in a car, angrily confronted the driver and passenger of another car with which they had nearly collided. He tore up the other driver's licence and threw the pieces on the ground. When the other passenger bent to retrieve them, the appellant hit him in the head several times with a rock. The other passenger fell to the ground. While he was lying there, the appellant kicked him several times. On appeal Doyle CJ rejected a submission the charge was bad for latent duplicity, saying (at [18]):
'… on the evidence all of the alleged blows were struck by Mr Haskett within the space of a few seconds, perhaps within no more than 10 seconds. All of them were part of one course of conduct and constituted what any reasonable person would regard as a single incident. It would be artificial to treat each separate blow and each kick as a separate assault. It would be equally artificial to separate the blows from the kicks. In deciding whether a charge based on several acts occurring in the course of a single incident does give rise to latent duplicity, judgments of degree must be made. It is also relevant to consider whether
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- the approach taken by the Prosecution is likely to be productive of unfairness or uncertainty at the trial. After considering all of these matters, and the relevant principles, I am satisfied that the Prosecutor was entitled to proceed as the Prosecutor proposed. This was, in substance, a single assault.'"
69 Justice Roberts-Smith then returned to the circumstances of the case before him and made these observations:
"131. In this case there was one continuous assault alleged. It commenced in the hallway when the appellant struck the complainant's arm and grabbed him by the shirt and throat. "Within seconds" they hit the wall and went into the spare bedroom, the appellant still holding onto the complainant. He pushed the complainant up against the bedroom wall, the complainant pushed backwards off the wall and they ended up in the centre of the room, with the complainant partly down, partly bent over. The appellant threw three punches, two of which the complainant avoided and one of which felled Ms Allardyce. The complainant moved backwards but tripped over Ms Allardyce and fell. The appellant grabbed hold of his arm and then punched the complainant three times in the face. All of this happened quickly. It was a continuous event, albeit comprising a number of different acts of the appellant, any one of which had it occurred in isolation, could have constituted an assault."
70 His Honour then concluded that, in respect of the matter before him, the facts upon which the prosecution relied were so closely related in time and place as to comprise a single assault consisting of a number of applications of force, not dissimilar to the situation in Haskett v Police [2005] SASC 174. They were properly charged as one offence. There was no duplicity in the charge, latent or otherwise. He held that the Magistrate and the primary Appeal Judge were right to so conclude.
The present case
71 It is apparent from the transcript in the present case that no attempt was made by defence counsel at the commencement of the hearing to complain of duplicity or to require that particulars of the charge be provided. The hearing therefore commenced upon the basis that the prosecution was seeking to establish that the altercation amounted to an
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- unlawful assault by the appellant and that the cluster of events comprising the assault occasioned bodily harm to the complainant.
72 Prima facie, as I indicated in my general observations, it was sufficient for the prosecution to establish beyond reasonable doubt that the complainant suffered a lower back injury as a result of something that happened during the course of the events comprising the assault. Quite clearly, at the commencement of the hearing, the prosecution case was that there was one assault which comprised an episode or cluster of events in the course of which the complainant was punched, pushed and kicked a number of times and, as a consequence, suffered bodily harm.
73 On the hearing of the appeal before me counsel for the appellant contended that there was more than one assault. Further, he contended that steps were taken at the hearing which led to an acceptance by the prosecution, and ultimately by the learned Magistrate, that the prosecution had to establish that the alleged injury to the complainant's lower back was caused by a deliberate kick to the back towards the end of the altercation as the complainant lay on the ground.
74 Counsel for the appellant referred first to a passage in the transcript at the commencement of the hearing in which defence counsel said that the issue was what happened in the course of the altercation, and whether there was any intention or action on the part of the appellant which might have caused the bodily harm (AB23).
75 I pause here to say that I am not convinced by this plea. What defence counsel said cannot be regarded as a description of the prosecution case and I cannot see that the prosecutor could be bound by assertions put up by his opponent. It was merely defence counsel's view of the matters in issue.
76 Counsel for the appellant then referred to certain exchanges towards the end of the first day of the hearing after evidence had been received from various prosecution witnesses, including the complainant himself. In the course of those exchanges the prosecutor was prepared to agree that the bodily harm, the subject of the charge, should be regarded not as the grazing of skin and so forth but as "the general injury to the lower back area" (AB134). I am prepared to accept that these exchanges confined the prosecution case to an injury to the lower back area but there is nothing in those exchanges to establish or suggest that the prosecution case did not remain as before, namely, that there was one assault consisting of a cluster of events initiated by the appellant such as punching, pushing and kicking
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- and that those events caused the lower back injury, being the bodily harm mentioned in the charge.
77 Finally, counsel for the appellant referred to certain exchanges that took place after all the evidence had been adduced and prior to closing addresses. In answer to a question put by the learned Magistrate, the prosecutor affirmed that the prosecution was seeking to prove that there was "an assault including a deliberate kick which caused the bodily harm" (AB251C).
78 It is questionable whether these exchanges can be characterised as particulars confining the prosecution case in the manner contended for by counsel for the appellant. The exchanges are consistent with the notion that the prosecution case was that the assault consisted of a cluster of events including a deliberate kick. These events caused the back injury. For the reasons given in my general observations, it was open to the Court to find that the bodily harm was occasioned by the cluster of events comprising the assault without necessarily being obliged to find that the injury was caused by a kick.
79 It follows from all of this that I am not easily persuaded that the prosecution case was not made out unless the prosecution established beyond reasonable doubt that the injury to the lower back area complained of was caused by a deliberate kick.
80 I am of the view that in the absence of any resolute objection to the charge on the ground of duplicity at the commencement of the hearing, or insistence upon particulars, it was open to the learned Magistrate to view the prosecution case as follows. There was a series of events initiated by the appellant involving punching, pushing and kicking which amounted to an assault and these events caused the bodily harm complained of in that the complainant would not have received a lower back injury but for the conduct of the appellant.
81 Let me now proceed to the grounds of appeal.
First ground of appeal
82 The first ground of appeal was that the learned Magistrate erred in convicting the appellant, the verdict being against the weight of the evidence and not reasonably open on the facts.
83 It will be apparent from earlier discussion that the appellant's case on appeal was that the hearing before the learned Magistrate was conducted
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- in a manner that had the effect of confining the prosecution case to an allegation that the assault occasioning the injury to the lower back area (which was said to comprise the bodily harm) consisted of a deliberate kick.
84 It was then said that there was insufficient evidence to satisfy the Court beyond reasonable doubt that a kick could have caused the injury in question. This was because the evidence of the complainant was unclear. The independent witness, Mr K, did not have a clear view of what happened while the complainant was on the ground. Moreover, there was a convincing explanation as to how the injury might have occurred by reason of events other than a deliberate kick; that is, the complainant's fall during the course of the struggle. Further, the expert evidence weighed against such an injury being caused by a kick and strongly suggested that, even if the back injury be found to be a recent injury referable to the day in question, it was more likely to have been caused by the complainant falling against the wall or falling to the ground than by a deliberate kick.
85 There are undoubtedly indications in the reasoning of the learned Magistrate that she felt obliged to deal with the matter before her by addressing issues of the kind I have just mentioned. In the end, she held that there was sufficient evidence to satisfy the Court beyond reasonable doubt that the bodily harm in question was occasioned by a kick.
86 It follows from my general observations and my further observations that, in my view, the appellant's line of argument proceeds from a faulty premise and is seriously flawed. I am not persuaded that any events occurred at the initial hearing or the resumed hearing which had the effect of particularising and thus confining the prosecution case in the manner contended for by the appellant. The prosecution was not bound by defence counsel's description of what the central issues in the case were thought to be at the commencement of the hearing. No particulars were sought or provided during the course of the hearing as to what facts and matters comprised the assault or as to when or how the injury was said to have been caused. To my mind, the only particulars binding upon, and thus limiting the prosecution case, was the acceptance by the prosecution at the conclusion of the first day that the bodily harm mentioned in the charge comprised an injury to the lower back area.
87 Accordingly, for the reasons given in my earlier observations, it was open to the prosecution throughout to advance a case that the assault consisted of a cluster of acts or events initiated by the accused and carried out in quick succession which caused the bodily harm the subject of the
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- charge in that the harm would not have occurred but for the actions of the accused.
88 To my mind, when the matter is viewed in that light the verdict of guilty was reasonably open on the facts and supported by sufficient evidence to justify a finding beyond reasonable doubt. The complainant spoke of being punched, pushed and kicked and finishing up on the ground with pain in his back. There is evidence from two independent witnesses that the appellant was the aggressor and that the incident was over and done with quickly. Mr K provided a graphic description which substantiated the complainant's own account. The evidence of the complainant's wife substantiated that he experienced pain in his back in the immediate aftermath of the incident. There was expert evidence to show that he had suffered a recent injury to his lower back area.
89 If it be held that I am wrong in the view that I have just expressed, and that, as contended by the appellant, the prosecution was obliged to satisfy the Court beyond reasonable doubt that the bodily harm complied of was caused by a deliberate kick, then I am conscious that there are certain difficulties with the line of reasoning adopted and the findings made by the learned Magistrate. The tenor of the expert evidence was that the lower back injury in question was not typical of a person being kicked and it was questionable whether a blow inflicted by a human being would cause the subject injury.
90 There was persuasive evidence that the injury to the lower back area was a recent injury. This opinion, when added to the evidence given by the complainant and his wife that he experienced pain in his back as a consequence of his encounter with the appellant, was probably sufficient to establish, as I indicated in earlier discussion, that the injury was referable to the incident. However, the expert evidence was sufficient to raise a degree of doubt that the injury was caused by a kick. Accordingly, I am inclined to accept that the learned Magistrate's findings in regard to that narrow issue were against the weight of the evidence.
91 However, it follows from the relevant provisions of the Criminal Appeals Act, that consideration must be given to whether, even on this view of the matter, it can be said that there has been a substantial miscarriage of justice. Section 14(2) of the Criminal Appeals Act is quite explicit that even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
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92 In the present case, I do not consider that the appellant's conviction has given rise to a substantial miscarriage of justice. The appellant did not deny that he was at the scene and has conceded at all material times that he was involved in an encounter with the complainant. There was strong and compelling evidence from the complainant himself and from an independent witness that the appellant acted in an aggressive manner and proceeded to assault the complainant who was 60 years of age and not well placed to resist the assault. The Magistrate accepted this evidence. The principles of law concerning causation, including the notion that the relevant events should be viewed in a commonsense way, clearly allowed for a finding to be made that the lower back injury complained of was occasioned by the events comprising the assault because it was reasonably foreseeable that during the course of the assault the complainant would fall to the ground and an injury of the kind complained of would occur.
93 Accordingly, even if it be held that the injury was caused by the complainant falling against the wall or to the ground, rather than by a kick deliberately inflicted by the appellant, it is entirely consistent with the principles of law concerning causation that the appellant should be held criminally responsible in these circumstances.
94 It follows that I am not prepared to allow the appeal on the first ground.
The second ground of appeal
95 The second ground of appeal was that the learned Magistrate erred in convicting the appellant by failing to consider whether the version of events put forward by the appellant as an explanation for the causation of the injuries sustained by the complainant was on the evidence a reasonable possibility.
96 I am not persuaded that the appeal should be allowed on this ground. It emerges from earlier discussion that the version of events put forward by the appellant as an explanation for the causation of the subject injuries was inextricably linked to his line of argument that the prosecution was obliged to establish beyond reasonable doubt that the lower back injury was caused by a deliberate kick. It will be apparent from earlier discussion that, in my view, this approach to the matters in issue is misconceived.
97 The learned Magistrate did give consideration to the version of events put forward by the appellant but was not persuaded to that point of view. Further, and in any event, as to this ground of appeal also, for the
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- reasons given previously, I consider that there was no substantial miscarriage of justice.
98 I am not prepared to allow the appeal on this ground.
The third ground of appeal
99 The third ground of appeal was that the learned Magistrate erred in dealing with the matter essentially as a contest between the evidence of the complainant and the prosecution witnesses on the one hand and the evidence of the appellant on the other.
100 I pause here to note that Liberato v The Queen (1985) 159 CLR 507 is authority for the proposition that where there is a conflict in the evidence, then, even if the tribunal of fact prefers the evidence for the prosecution, it must not convict unless it is satisfied beyond reasonable doubt of the truth of that evidence. The tribunal must bear in mind that even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if the evidence gives rise to a reasonable doubt as to that issue.
101 In other words, as I noted in earlier discussion, the finding of guilt is not to be reached simply by rejecting the case put forward by the accused. The Court has to positively believe, beyond reasonable doubt, the evidence presented by the prosecution: Harling v Hall (supra).
102 As to this ground of appeal, the appellant sought to persuade me that the learned Magistrate had not given proper weight to the precept that the burden of proof lies upon the prosecution throughout. However, the appellant was unable to identify any passages in the transcript in which this emerged clearly. It follows from my earlier observations that when the nature of the prosecution case is viewed in its proper light there was ample evidence to sustain a conviction.
103 In my view, it cannot be said in the circumstances of the present case, that the Magistrate made the error of preferring the evidence of the prosecution against the evidence of the appellant and convicting without keeping steadily in mind the need to determine whether or not the prosecution had proved its case beyond a reasonable doubt. It follows from earlier discussion that there was sufficient evidentiary material before the Magistrate to conclude that the prosecution case had been made out beyond reasonable doubt.
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104 In any event, as to this matter also, I am not prepared to hold that there has been a substantial miscarriage of justice.
105 I will not allow the appeal on this ground.
Summary
106 The appeal will be dismissed. I will hear from the parties as to whether any further orders, including orders for costs, are required.
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