Williams v Police No. Scciv-02-1491

WILLIAMS v POLICE
[2003] SASC 90
Appeal against Convictions and Sentence

Gray J This is an appeal against conviction and sentence.
Background
The appellant, Todd Howard Williams was charged with assault occasioning actual bodily harm[1]. The matter proceeded to trial before a magistrate. Mr Williams was convicted and sentenced to imprisonment for nine months.
Crown Case
The Allegations
[1] The information was in the following terms; ‘On the 16^th day of January, 2001 at Richmond in the said State, assaulted Robert Tuffs a person of or above the age of 12 years thereby occasioning him actual bodily harm. Section 40 of the Criminal Law Consolidation Act, 1935.This is a minor indictable offence.”
Mark Michael Benham and his former partner Leanne Jane Jeffery were jointly registered as the owners of a boat. Ms Jeffrey had taken the boat to Mid City Auctions for sale. It was the Crown case that Mr Williams went with Mr Benham and James Ware to the Mid-City Auctions premises. The purpose of the visit was to retrieve the boat. The plan was to arrive at Mid City Auctions at or about the time the premises opened for business.
The Crown alleged that upon entering the premises Mr Williams acted in a brazen and intimidatory manner towards people present, including the complainant Robert Peter Tuffs. Mr Williams verbally threatened Mr Tuffs and used physical violence against him.
It was the Crown case that Mr Williams instructed employees, including Mr Tuffs, to remove cars that were blocking the removal of the boat from the premises. Mr Tuffs attempted to comply with this direction. He moved to collect the keys from a board to facilitate the removal of the cars. At that point Mr Williams struck Mr Tuffs in the face causing him to fall. As Mr Tuffs fell he struck his head on the corner of a desk. He was knocked unconscious. When Mr Tuffs regained consciousness he was bleeding from the forehead. He was unable to stem the bleeding. Mr Tuffs and another employee repeatedly requested that they be allowed to call an ambulance. They were directed by Mr Williams not to go near the telephones. Later Mr Tuffs was taken to hospital and his head wound was sutured.
Injuries Sustained
Photographic evidence confirmed injuries to Mr Tuffs’ head and face. A laceration nine centimetres in length extended across the forehead and past the hairline of the scalp. There was swelling and bruising to the right eye.
Dr Marcel Stephan treated Mr Tuffs some days after the assault. He noted extensive bruising and swelling around the face and eyes. He noted the laceration to the right forehead and scalp. The laceration had already been sutured. There was evidence of bleeding to Mr Tuffs’ right eye. Dr Stephan also noted bruising to the left side of the lateral thoraco-lumbar region.
Mr Tuffs complained of being fearful and anxious following the assault. He had difficulty sleeping, was drowsy, tired and suffered headaches. Tests conducted by Dr Stephan indicated that there was a slight loss of motor power and reflexes and a possible slight decrease in co-ordination in the right side of Mr Tuffs’ body. He considered that the bruises and swelling would cause no permanent damage, but that Mr Tuffs would have a permanent scar over the right side of his forehead.
After the initial consultation Dr Stephan reviewed Mr Tuffs and removed the sutures and dressings. He referred Mr Tuffs to a psychologist after noting some symptoms which indicated a post traumatic stress disorder. The psychologist considered that Mr Tuffs had a good prognosis.
Witness Statements
It was agreed between the parties that a number of witness statements could be received into evidence as part of the Crown case. As a result many witnesses were not called at the trial. These statements confirmed the brazen and intimidatory approach adopted by Mr Williams and the other men. These facts were not disputed.
The Defence Case
Mr Williams gave evidence. He described his involvement in the plan in the following terms:
Q In relation to the events on 16 January 2001, how did you become involved.
AMark, there were three of four of us and Mark had asked a couple of us if we would go and give him a hand to collect his boat…
Q What did you plan on doing on the morning of 16 January.
ABluff and bravado…Just basically, just going in yelling. Psychological, that’s all. Trying to get the upper hand ...
After entering the Mid City premises, Mr Williams said that he approached Mr Tuffs. He described what followed:
A. I was yelling and screaming at him…
‘Where’s the fucking keys, we want to get the fucking boat out. Hurry up, you freak.’ I was basically abusing him.
I was telling him, ‘Hurry up, fuck you, you know, you fuckhead. Come on, hurry up’. I can’t remember the exact words, but they were along those -
Mr Williams’ account was that he ordered Mr Tuffs to get the car keys. Mr Tuffs picked up a board to which the keys were attached and approached Mr Williams with the board in a threatening manner. Mr Williams feared for his safety. Mr Williams claimed that he struck Mr Tuffs in self defence. He said that Mr Tuffs fell and struck his head and face on the corner of a desk.
Mr Benham gave evidence of observations he claimed to have made at or about the time of the incident. He observed Mr Tuffs approaching Mr Williams with the key board, but his attention was then diverted to other matters. He said that he did not observe the incident itself.
Mr McGee also gave evidence for the defence. He was a credible and reliable witness. However his evidence did not address the critical issue of the alleged assault.
Magistrate’s Findings
The magistrate considered Mr Tuffs to be a truthful and reliable witness and accepted his evidence:
Although there was some vagueness on the part of Tuffs he presented to the Court as a truthful and reliable witness. In large part I accept his evidence.
The magistrate found Mr Williams and Mr Benham to be less than truthful and rejected their evidence:
With respect to the defendant and Benham I have no hesitation in saying that their demeanour and evidence left me in a state of disquiet. I am satisfied that to a signficant extent they were less than truthful when they testified before the Court. In particular I reject their evidence to the effect that Tuffs had grasped a keyboard and presented it towards the defendant.
The magistrate then proceeded to make detailed findings of fact:
Upon a careful consideration of the whole of the evidence I make the following findings of fact. At about 8 am on the 16th January 2001 the witness Tuffs was within the premises of Midcity Motor Auctions at 165 Richmond Road, Richmond in the said State. At the time he was the manager/vendor of Midcity Motor Auctions at that location. As deposed by him he was sitting at his desk in his office when he heard somebody calling, ‘Where’s Bobby, where’s Bobby?’ Tuffs rose from his desk to see who was calling him. The defendant entered through the office swing door forcing it and damaging it in the area of its hinges and said to Tuffs, ‘We’ve come for the fucking boat. Don’t get fucking involved. Don’t go near the fucking phones. Don’t phone your boss and don’t phone the fucking police.’ Then with his hand the defendant grabbed Tuffs around the throat and forced him back into a chair. Tuffs was held down on the chair by the defendant for about five to ten seconds during which time the defendant said to Tuffs, ‘Don’t phone the fucking police. Don’t phone your fucking boss and if you don’t do what we say you’ll end up like your boss.’ The defendant released his grip on Tuffs’ throat and moved towards the front counter whereupon he said to Tuffs, ‘Get those fucking cars moved now.’ Tuffs replied, ‘Okay’ and proceeded to follow the defendant towards the front counter area where there were two keyboards with car keys on metal hooks in the boards. Tuffs believed that there were keys on those boards which could be used to move the subject motorcars. As deposed by Tuffs he ‘went down to pick (the keyboards) up’ whereupon the defendant turned and faced him and said, ‘What are you doing?’ Tuffs replied, ‘I’m getting the keyboards.’ The defendant, who was about a metre from Tuffs, asked, ‘Are you having a go at me?’ Tuffs replied, ‘No, I’m coming to get the keyboards.’ Whereupon the defendant with his right fist punched Tuffs on the left side of his face in the area of his eye. As a result of the blow Tuffs fell backwards hitting the desk and floor and lost consciousness for about 10 seconds. As indicated by Tuffs he regained consciousness realising that his head, ‘felt very sore and there was blood just flowing from’ his head which was gashed. As a result of the defendant punching Tuffs the latter suffered a large laceration to the right side of his head and forehead which required about 19 or 20 sutures. He also suffered blurry vision. Tuffs’ injuries are more particularly described in the statement of Marcel Stephan, a medical practitioner, who examined Tuffs on the 19th of January 2001 - see exhibit P1. As stated by Tuffs he now has a large scar on the right-hand side of his forehead. After he regained consciousness Tuffs ventured to the toilet in the premises to obtain some tissues to staunch the flow of blood from the gash in his head. In the toilet he obtained some paper and tried to stop the bleeding. He emerged from the toilet and noticed the defendant near the roller door of the premises and said to him, ‘I need an ambulance, I need to phone an ambulance.’ The defendant said, ‘Don’t go anywhere near the phones.’ Tuffs returned to the toilet to obtain more tissues. Again Tuffs emerged from the toilet and said to the witness Benham, ‘I don’t think this solves any problem.’ Within a few minutes the subject boat (a ski boat) had been removed from the premises and the defendant, Benham and another person named Ware had left. As indicated by Tuffs he was then conveyed to Saint Andrews Hospital in Adelaide. At no time did Tuffs pick up any keyboard while the defendant was in the premises. The defendant had come to the premises with Benham and Ware for the sole purpose of removing the boat. The boat had been secured in those premises with a chain. It was registered in the name of Benham and his former partner Leanne Jane Jeffery. The boat had been placed at those premises by Jeffery on consignment to be sold. Benham had decided that he wanted to remove the boat on the 16th January 2001. While the defendant was in the premises he behaved in an aggressive and intimidating manner prior to striking Tuffs as clearly indicated in the evidence of the latter. This aggressive and intimidating behaviour continued after his attack on Tuffs as particularly described in the statement of Karen Anne Muller - see exhibit P1. When Mueller attempted to telephone for an ambulance for the injured Tuffs the defendant said to her, ‘I wouldn’t do that unless you want to fall over like Bobby did.’ She called the defendant an ‘animal and a pig’ whereupon the defendant responded, ‘If you want to fall over like your mate, keep doing that.’ She described the defendant as ‘roaming around like a caged lion.’ The defendant’s aggressive and intimidating behaviour and physical attack upon Tuffs was designed to instil fear in those present within the premises and encourage them to cooperate in order that the ski boat could be removed as quickly as possible.
The magistrate rejected the contention that Mr Williams had acted in self defence and concluded:
The defendant’s physical attack upon Tuffs was unprovoked, cowardly and vicious. He was not acting in self defence when he punched Tuffs. Section 15 of the Criminal Law Consolidation Act 1935 provides to a person charged with an offence a defence of self-defence. The relevant provisions are described below.
15 (1) It is a defence to a charge of an offence if -
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist ...
(3)For the purposes of this section, a person acts for a defensive purpose if the person acts -
(a)in self defence or in defence of another ...
In a trial the onus is on the prosecutor to negative any reasonable possibility of self-defence when the issue of self-defence is raised by some aspect of the evidence. The evidence in this case raised the issue of self-defence. However, I am satisfied that the prosecutor has negatived any reasonable possibility of self-defence raised in the evidence of this case.
Appeal against Conviction
Counsels’ Submissions
Counsel for Mr Williams submitted that the magistrate erred in his approach to the acceptance and rejection of the witnesses’ evidence. It was said that the magistrate failed to make any assessment of the defence case or the defence witnesses. Counsel contended that the magistrate failed to give sufficient reasons for accepting the evidence of Mr Tuffs and rejecting the evidence of Mr Williams and Mr Benham. Counsel took issue with the use of the words “in large part I accept [Mr Tuffs’] evidence” noting that there was no mention of those parts of the evidence which the magistrate did not accept.
Counsel for the Crown submitted that no error had been disclosed in the magistrate’s reasons. The reasons were sufficient for Mr Williams to understand the basis of the findings. The magistrate was in a better position than the appeal court to make findings concerning credibility and reliability. The findings were fully justified by the evidence. It was said that there was no substance to the appeal.
Adequacy of Reasons
The magistrate disclosed the basis of his reasoning. He made extensive findings of fact. He provided reasons for his rejection of the defence advanced. The magistrates’ reasons have allowed this court to perform its function without difficulty[2]. There is no substance in this complaint.
Credibility and Reliability Findings
[2] Sun Alliance Insurance Ltd v Massoud [1989] VR 8, Papps v the Police (2000) 77 SASR 210 215-219
The magistrate was faced with two different versions of the events. He assessed the witnesses. He accepted Mr Tuffs’ account. He rejected the testimony of Mr Williams and Mr Benham. The remarks of von Doussa J in Harris v Mill[3] are apposite.
In a sense the key issue in many trials is credibility, but to pose the questions as ‘who to believe’ is apt to be misleading…There is a real risk that the enquiry will become: Which of the parties giving the competing stories is to be preferred.
The preference of the victim’s evidence to that of the defendant, even where the defendant’s evidence is in consequence rejected, leaves unanswered the essential question whether the tribunal is satisfied that every element of the charge is proved beyond a reasonable doubt. Generally speaking, the rejection of the defendant’s evidence does not provide positive proof of guilt.
[3] Unreported, SCSA, 7 April 1988
In the present case the magistrate accepted Mr Tuff’s evidence. He did not simply prefer one account to another. He addressed and answered all essential questions.
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq)[4] Kirby J observed:
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.
All of the foregoing considerations leave to be weighed, in some cases at least, the impression which the trial judge holds of a particular witness, perhaps influenced by the witness's demeanour and the kinds of considerations commonly referred to such as hesitation or displays of partisanship not readily conveyed, or conveyed at all, by the printed record. One can hold different views about whether such considerations should intrude in the assessment of qualified expert witnesses. One can strive to minimise resort to such considerations in the case of lay witnesses, out of recognition of the fallibility of human assessment of credibility from appearances. But because trials remain public procedures for the resolution of disputes, it is inescapable that, in some cases at least, credibility assessments will be required where there is no documentary, electronic or other incontrovertible evidence to resolve the conflict presented for decision. In such cases it will remain the fact that, try as it might, the appellate court cannot procure from the printed record exactly the same materials on which to base the judicial decision as the trial judge had.
This conclusion may, as I think, be true of a relatively limited class of case: basically those where the decision depends upon resolving a clash of critical oral testimony, oath against oath. But in such cases, because the appellate court cannot, in presently available records, recapture all of the information properly used to assist the trial judge's decision, the old strictures about that judge's advantage remain as relevant today as they were when first written more than a century ago. In such cases, the appellate court's rehearing must be conducted within a constraint which is set by the somewhat more restricted data available to it. This limitation is not confined to Anglo-Australian law. It is recognised in other countries of the common law and doubtless beyond.
[4] (1999) 73 ALJR 306 at 330
The magistrate carefully addressed the issues of credibility and reliability. He disclosed his reasons for the acceptance of Mr Tuff’s evidence and the rejection of the evidence of Mr Williams and Mr Benham. In the course of his findings of fact the magistrate identified occasions when Mr Williams’ account was at odds with the statements of witnesses tendered as part of the Crown case. Those statements recounted how Ms Muller attempted to telephone for an ambulance but was stopped by Mr Williams saying: “I wouldn’t do that unless you want to fall over like Bobby did.” Ms Muller then called Mr Williams an “animal and a pig”. He responded, “If you want to fall over like your mate, keep doing that.”
The unchallenged witness statements provided considerable support for Mr Tuffs’ account. They provided evidence materially inconsistent with the evidence of Mr Williams. There was ample evidentiary material to justify the findings and conclusions made by the magistrate. The magistrate’s analysis of the evidence was satisfactory. He had regard to the relevant and material facts. No basis has been shown for interfering with the magistrate’s findings on credibility and reliability.

The magistrate’s finding that the attack by Mr Williams on Mr Tuffs was unprovoked, cowardly and vicious was open on the evidence. The acceptance of Mr Tuffs’ account and the rejection of Mr Williams and Mr Benham’s evidence provided an unobjectionable basis for the rejection of the defence advanced under section 15 of the Criminal Law Consolidation Act, 1935 (SA)
The appeal against conviction is dismissed.
Appeal against sentence
As earlier observed the magistrate imposed a sentence of nine months imprisonment. He declined to exercise his discretion to suspend the sentence. When sentencing he remarked:
The defendant is a man aged 38 years. He suffers from arthritis and a depressive illness for which he takes medication. He has a misaligned jaw…I accept that the defendant has expressed his ‘remorse and contrition’ through his counsel. The defendant is a sole parent who has care of his 12 year-old son, Luke.
…
The defendant has offered to pay compensation in full to the victim of the assault. I understand that he has about $3,000 in his possession for that purpose…
In a case such as this deterrence must loom large in determining the appropriate sentence, but other matters, especially rehabilitation, the interests of society and the exercise of mercy and leniency must still be considered. I have considered those factors. Moreover, the Court has not forgotten the effect that a term of imprisonment will have upon the defendant’s young son Luke who will be deprived of his father’s company (Luke will be in the care of his grandparents) and also the defendant’s removal as the carer of his son and the effect of that removal on the defendant and his son.
I have considered all sentencing options available to this Court and it is this Court’s opinion that the only appropriate sentence for the defendant in this case is one of imprisonment. The defendant is convicted and is to be imprisoned for a period of 9 months. I have been asked to consider suspending any sentence of imprisonment for the defendant. I have considered that request and in this Court’s view this is not a case where the Court should suspend the sentence of imprisonment. I decline to suspend the sentence of imprisonment.
The appellant submitted that the sentence was manifestly excessive. In the alternative, it was said that the magistrate erred in failing to suspend the sentence or impose a sentence of shorter duration, having regard to the personal circumstances of the appellant and his role as carer of his son.
Mr Tuffs injuries have been recounted earlier in these reasons. This was a serious assault. The maximum penalty for the offence of assault occasioning actual bodily harm is imprisonment for a term of five years.
There were circumstances of aggravation. Mr Williams entered private business premises intending to intimidate and create an atmosphere of fear. This was planned conduct. The public are entitled to conduct their affairs free of such intimidatory behaviour.
Mr Williams’ criminal antecedents disclose a number of offences. In the mid 1980s he committed the offences of being armed with an offensive weapon, assault and being unlawfully armed in public. In regard to the latter offence he was imprisoned for six months with the last three months of the sentence being suspended. In 1991 he was convicted of the offence of unlawful assault and criminal damage. In 1992 he committed the offence of resist police. These offences resulted in the imposition of modest fines.
Section 11 of the Criminal Law (Sentencing) Act, 1988 (SA) provides:
(1) A sentence of imprisonment may only be imposed -
(a) if, in the opinion of the court -
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed go go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b)if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2).
Mr Williams has shown a tendency to violence towards other persons. He has previously been convicted of offences punishable by imprisonment. The circumstances of this offence are grave. The magistrate exercised his discretion and imposed a term of imprisonment. This course was open as a matter of discretion. Mr Williams’ criminal conduct called for the imposition of a term of imprisonment.
The primary submission on appeal was that the sentence of imprisonment should be suspended. Attention was drawn to Mr Williams’ personal antecedents and emphasis was placed on his responsibilities towards his son. He had recently secured full time employment. Reference was made to his poor health. However it was not suggested that his health concerns could not be adequately addressed in prison.
The magistrate declined to suspend the sentence of imprisonment. There is no suggestion that the magistrate failed to have regard to relevant circumstances or took into account irrelevant matters. No basis has been shown to interfere with the decision to impose an immediate custodial term of imprisonment. The magistrate had the power to act pursuant to section 38(2a) of the Sentencing Act and to direct that the appellant serve a specified period of the sentence of imprisonment in prison and to suspend the remainder.
Section 38(2a) of the Sentencing Act provides:
However, if the period of imprisonment to which a defendant is liable under on or more sentences is more than three months but less than one year, the sentencing court may, by order –
(a)direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b)suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant’s release from prison.
There is no express indication in the sentencing remarks that this sentencing option was considered.
It is to be observed that Mr Williams had the advantage of a comparable order to section 38(2a) when sentenced in Tasmania in 1985. His record indicates that he complied with the terms of his bond on that occasion. It is now more than 15 years since the appellant served that term of imprisonment and his criminal conduct since that time has been relatively minor in nature.
Counsel pointed out that Mr Williams had been out of trouble for the last ten years. Commencement of this period coincided with the birth of his son. Mr Williams took on the responsibilities as a sole carer for his son. It was said that he resolved at this time to change his behaviour and to cease criminal offending. This change is commendable and allows for a degree of leniency to be extended. This is an appropriate case to invoke the provision of section 38(2a) of the Sentencing Act.
As earlier observed the gravity of Mr Williams’ criminal conduct on this occasion and his criminal antecedents call for a custodial sentence. It is inappropriate to suspend the sentence in its entirety. A head sentence of nine months imprisonment was appropriate.
In reaching the conclusion that it is inappropriate to suspend the sentence in its entirety, regard has been had to all the submissions made on behalf of Mr Williams. Specific regard has been had to Mr Williams’ age, poor health, employment, his responsibilities for the care of his son, the restitution that has been made, and the time already spent in custody. Regard has been had to the personal reference given on his behalf. The court has been informed that Mr Williams’ fiancée will be able to care for Mr Williams’ son during any period that Mr Williams spends in custody.
The appeal is allowed in part. The provisions of section 38(2a) should be invoked. Mr Williams should serve a sentence of three months of the term of imprisonment in prison and the remainder of the term, namely six months, be suspended on condition that Mr Williams enter into a bond to be of good behaviour, that he undertake such courses as may be directed including courses as to anger management, and that he obey all reasonable directions of his correctional services officer.
The orders of the Court are:
1.    The appeal against conviction is dismissed.
2.    The appeal against sentence is allowed.
3.    The sentence of imprisonment for 9 months is confirmed.
4. Pursuant to section 38(2a) of the Criminal Law Sentencing) Act 1988 SA it is directed that Mr Williams should serve a sentence of three months imprisonment of the sentence of nine months imprisonment in prison and the remaining six months of the sentence be suspended on the condition that Mr Williams enter into a bond to take effect on his release from custody. The terms of the bond are that Mr Williams be of good behaviour, that he obey all reasonable directions of his correctional service officer and that he undertake such courses as may be directed including courses as to anger management.
CITATIONS LISTED AS THEY APPEAR IN THE JUDGMENT
1 The information was in the following terms; ‘On the 16^th day of January, 2001 at Richmond in the said State, assaulted Robert Tuffs a person of or above the age of 12 years thereby occasioning him actual bodily harm. Section 40 of the Criminal Law Consolidation Act, 1935.This is a minor indictable offence.”
2Sun Alliance Insurance Ltd v Massoud [1989] VR 8, Papps v the Police (2000) 77 SASR 210 215-219
3      Unreported, SCSA, 7 April 1988
4 (1999) 73 ALJR 306 at 330

[2003] SASC 90

17 April 2003