Winn v Roser

[1995] QCA 579

COURT OF APPEAL

[1995] QCA 579

PINCUS JA
DAVIES JA
MOYNIHAN J

CA No 232 of 1995

M E WINN

v.

ANTHONY ROSER  Appellant

BRISBANE

..DATE 13/10/95

JUDGMENT

PINCUS JA:  In this matter, Mr McGuire has referred to the grounds of appeal and the outline of argument which we have studied and we have had an opportunity to look at the record; it is possible, therefore, to give judgment now.  I should say that I do not regard the appeal as being a frivolous one; it is one which has some substance. 

The appellant was convicted before a Magistrate of assault occasioning bodily harm.  In his reasons for judgment, which are commendably explicit, the Magistrate has fully explained the considerations which he took into account in determining to accept the prosecution case.

The grounds of appeal set out in the notice of appeal include that the Magistrate misinformed himself as to the evidence and failed properly to address the defences raised.  The outline of argument adds other grounds including that the verdict was unsafe and unsatisfactory.

Witnesses called were the complainant, Angela Kelly Broom, the appellant, police witnesses and a doctor.  It does not appear to me that the evidence other than that of the complainant and the appellant and the evidence relating to the injuries which the complainant suffered played any significant part in the Magistrate's analysis of the case.  The contest was basically one of word against word; the complainant against the appellant, the only objective evidence being that of the injuries as I have mentioned.  There is no reason to doubt that in an altercation between the complainant and the appellant, the complainant suffered injuries due to the attentions of the appellant.  But the appellant's case was that he was the victim of unprovoked verbal and physical assaults by the complainant and that any injuries she suffered were due to his attempts to defend himself.  Most importantly, he asserted that the complainant seized him by the testicles very hard, in response to which the appellant slapped her, but not hard, to make her let go.  He said this split her lip.  The complainant's account of the matter is impossible to reconcile with that of the appellant.  She gave evidence that she was punched on the legs numerous times, that the appellant grabbed her by the throat and threw her on the bed and started to choke her and that he slapped her.  On her version there was no question of his having acted in self defence. 

It must be said that the difficulty the Magistrate had in attaching credence to the appellant's version appears to have risen principally from the photographs and other evidence of the injuries suffered by the complainant.  In my opinion His Worship was right to attach considerable importance to the evidence of the injuries and to the fact that they appeared to be difficult to reconcile with the appellant's version of events.  Before coming to the Magistrate's reasons, it is desirable to mention the appellant's version of his physical contacts with the complainant which must have caused the injuries.  I do not propose to recite the whole of the evidence but only that part of it which seems to be most significant.

Firstly, he says that on being squeezed by the testicles "I grabbed her face like that."  The next question was,

"You indicate just like that - you're indicating with your right hand - with your fingers?-- Put it on her face like that.  She squeezed harder.  As I had it there I tried to push away like that with my left hand."

As I read the record, the appellant then indicated that he pushed with his left hand on the complainant's chest.  The Magistrate had an advantage which we do not share and that is that he saw the appellant demonstrate physically what he did; but the record indicates merely that the appellant grabbed the complainant's face and/or put his hand on her face and tried to push her away.  The appellant then said that he gave her a back-handed slap which in his evidence he described as reasonable.  In his written statement to the police he said the slap was not hard.  He did not mention any other attack on the complainant.  In cross-examination, the appellant gave a further explanation of what he did.  Summarising, he said he had his hand on the complainant's face and tried to push her head back.  He spoke of pushing her down.  He said he had his hand on her face and pulled his hand down and tried to push her away.  He denied any hard contact with her chest area although he said he could have brushed it.  Unfortunately for the appellant, there is evidence of contacts both more numerous and more severe than those he swore to. 

To put the appellant's version in summary, it appears to amount to this, that the complainant made a substantial attack upon him and that all he did in response was a push or two and a slap which was not particularly hard.  The complainant's injuries were to the lips, right cheek, left neck, right upper chest, right forearm, knees and upper arms. 

The Magistrate's reasons, in substance, were as follows.  He accepted medical evidence that the injuries constituted bodily harm and evidence that the complainant was off work for a week.  He mentioned the slap to which the appellant swore and said that apart from that assault, as he understood the appellant's evidence, the only other time he touched her was when he pushed her away.  His Worship expressed the view that some parts of the complainant's evidence were exaggerated, in particular, evidence with respect to the punching on the legs and said he had some difficulty, looking at the photographs, that they would be consistent with 20 punches on the legs.  He also had difficulty, he said, with evidence from the complainant as to being choked and said in effect that although there were injuries to the throat they were not as substantial as one would expect having regard to her account of the attack on her throat.  He mentioned evidence from a Constable Moore of the injuries to the complainant which were seen on the night in question and said they included bruising on the neck.  He said the evidence of the appellant, taking into account his demeanour, was not discredited to any great extent at cross-examination.  His Worship then referred to the photographs and said the evidence of the appellant, having regard to the injuries depicted in the photographs, had to be treated most cautiously.  He then reminded himself of the onus of proof, to which he had referred earlier, and said the injuries were more supportive of the complainant's version.  He again mentioned reservations about the complainant's evidence in relation to the number of times she was punched in the legs and concluded by saying that he preferred the complainant's version of events.  He rejected the defences of provocation and self defence and found that the prosecution had proved its case beyond a reasonable doubt. 

The photographs were in two groups, numbers 1 to 13 having been taken first and the others later, although there is some confusion in the transcript about this.

It seems likely that what was done was to take numbers 1 to 13 on 7 January, the night of the alleged offence, and the others two days later.  As the photographer implied, bruises not evident in the first batch showed up in the second.  Photographs numbers 19, 20 and 21 show bruising on the left knee and left thigh consistent with fairly substantial blows.
On the appellant's version of events he did not strike the appellant on the legs.  The marks on the complainant's throat and face also seem quite significant.  It is true as the Magistrate pointed out that there were no such marks on one side of the throat as one might have expected from her account of what was done but one can understand the Magistrate tending to infer that there was some kind of substantial attack upon the complainant in that area.  As for the face, one would expect that the facial injuries depicted and observed were caused by more than one blow. 

Another, perhaps minor, matter was that on the complainant's version the appellant, when she tried to phone her mother, kept disengaging the phone and ultimately pulled it out of the wall.  The appellant said in his evidence the complainant went to the phone and that he hung up.  He made no reference to the complainant's evidence that he pulled the phone out of the wall.  I must say that in my view the evidence about the telephone, whether or not it was pulled out of the wall, tends to support the complainant's version that the circumstances were such as to induce her to try to phone for help.

In the oral argument which was given today, counsel for the appellant, sensibly as it seems to me, relied upon the written submissions which are full and helpful.  He added a particular complaint about the use of the word "prefer", arguing, as I understood him, that this showed that the Magistrate had not remembered, or had misapplied, the standard of proof.   It is true that the use of the word "prefer" suggests, disregarding the context, an application of a lesser standard, but I have no doubt, reading the reasons as a whole, that the Magistrate was fully conscious of the necessity of being satisfied beyond a reasonable doubt before he could convict.

It is my opinion that, although the word "prefer" was not particularly well chosen, the reasons read as a whole indicate a sensible basis for the conclusion which the Magistrate arrived at; it must be kept in mind that our function here is not to retry the matter but to determine whether the Magistrate's reasons, in the light of the evidence, lead to a conclusion which he could properly reach.  In my opinion, the answer to that is, plainly enough, yes and I think the appeal should be dismissed.

DAVIES JA:  I agree.

MOYNIHAN J:  So do I.

PINCUS JA:  The appeal is dismissed.