Wilson v Graham
[2007] WASC 293
•19 NOVEMBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WILSON -v- GRAHAM [2007] WASC 293
CORAM: McKECHNIE J
HEARD: 19 NOVEMBER 2007
DELIVERED : 19 NOVEMBER 2007
FILE NO/S: SJA 1063 of 2007
BETWEEN: ANTHONY ROBERT WILSON
Appellant
AND
NATALIE ANNE GRAHAM
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P M HOGAN
File No :PE 86259 of 2006
Catchwords:
Criminal law and procedure - Acquittal on failure to be satisfied - No new principles
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr G J Allen
Respondent: Mr L M Levy
Solicitors:
Appellant: Commonwealth Director of Public Prosecutions
Respondent: Laurie Levy & Associates
Case(s) referred to in judgment(s):
Fox v Percy (2003) 214 CLR 118
McKECHNIE J: In the late evening of 23 June 2006 the respondent caught a plane from Brisbane to Perth. Somewhere over Central Australia the plane encountered turbulence and the captain switched on the seatbelt sign. The respondent was asleep. When flight attendants attempted to get her to comply with the captain's order it is alleged she hit one of the attendants on the face. The attendant slapped her back. On arrival at Perth the respondent was detained and charged with assault.
On 5 July 2007 the respondent stood trial. A number of prosecution witnesses testified directly as to the event, while others gave evidence that was broadly corroborative that an assault had occurred. The respondent testified that she was adamant she did not hit the attendant.
After hearing the evidence the magistrate concluded:
The conclusion I have reached, here, is that I suspect that the accused did hit Ms Ettinger, but I cannot convict on the basis of suspicion or even probability. I must decide whether, on the whole of the evidence, the act of the accused has been proved beyond reasonable doubt. Given the discrepancies within the prosecution case, particularly with the - particularly the inconsistencies in the descriptions of the assault between Ms Costello and Ms Ettinger, and the inability of Ms Kingon to give a description, the reliability of the prosecution evidence is considerable (sic) diminished - and I must conclude that I cannot be satisfied beyond reasonable doubt that this slap did occur. So, I have entered a judgment of acquittal. (ts 54)
From that acquittal the prosecution appeals as follows:
1.There has been a miscarriage of justice in the finding of the learned Magistrate that she could not be satisfied beyond a reasonable doubt that the physical element of an assault, namely the contact by the respondent to the face of Sharon Ettinger, had occurred.
1.1The finding was contrary to the weight of the evidence adduced at trial.
In detailed written submissions, further amplified today, the prosecution case has been set out by counsel for the appellant. Counsel for the respondent, in equally detailed submissions, agrees with the summary of evidence but adds certain matters which are submitted to be significant in addition to those set out by the prosecution. Likewise, counsel for the respondent has set out a summary of the respondent's evidence, with which the counsel for the respondent agrees, but adds other matters relevant to an alternative basis upon which the respondent would contend that the appeal should be dismissed.
The magistrate's reasons for decision
The appellant acknowledges that there were discrepancies in the evidence of Ms Ettinger and Ms Costello about precisely how and where the slap was delivered. However, it is submitted that the witnesses, together with Ms Kingon, corroborate each other's description of the events leading up to the slapping of Ms Ettinger in the face. The appellant's essential submission is that the learned magistrate erred by giving undue significance to the differences in the evidence that she had identified. What the magistrate said this in this respect is:
On the other hand, there are difficulties with the prosecution evidence. Clearly, Ms Costello was in the best place to see the two slaps. Her descriptions of how each of the slaps occurred, in terms of movement of the arm and the point of impact, conflict with Ms Ettinger's. My recollection is that Ms Ettinger demonstrated that the accused slapped her with the palm of her hand. She said she was hit to the right side of her face. Ms Costello's evidence was that the accused struck with the back of her hand to the front and centre of the accused - Ms Ettinger's face. I've already described the different versions of the slap back to the accused, as described by Ms Costello and Ms Ettinger. Again, they were inconsistent descriptions.
There are, of course, other less significant inconsistencies within the prosecution case. Now, inconsistencies are not necessarily indicative of untruthfulness. They're often related to the fact that different people perceive the same incident differently, however they do go to the reliability of the evidence in terms of assessing whether I can be satisfied beyond reasonable doubt that the offence is made out. I have found this case difficult to resolve. The passengers presented as truthful; my assessment of Ms Costello is that she has been truthful; Ms Ettinger as defensive - and that's understandable, given that she has struck the accused - but I cannot conclude that she has lied to the court.
In essence, the appellant's submissions boil down to this:
31.The cumulative effect of the evidence of the three primary prosecution witnesses and the two corroborative witnesses is that there is overwhelming evidence to establish the guilt of the Respondent. The strength of the prosecution case is not displaced when the evidence of the Respondent is also taken into account, particularly when the learned Magistrate found that there were 'problems with the reliability of her evidence'.
32.The finding of the learned Magistrate was contrary to the weight of evidence because on the evidence there was no reasonable doubt that the respondent had struck Ettinger to the face.
The role of an appeal court is settled: Fox v Percy (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at [25], [28] and [29].
With this in mind, I have conducted a review of the case. Although I have not had the advantage of seeing and hearing the witnesses and judging their demeanour, I have the findings of the magistrate as to the truthfulness of the witnesses.
Ultimately, what the magistrate did was to decline to draw an inference of guilt beyond reasonable doubt. The principal reason for this was twofold: the apparent inconsistency in some of the witnesses for the prosecution as identified, coupled with an inability to totally reject the respondent's evidence.
Following my review of the trial transcript, I am unable to say that the magistrate was in error and the appeal is therefore dismissed.
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