Criminal law - Appeal and new trial and inquiry after conviction - Appeal against conviction - Whether evidence so unsafe and unsatisfactory that dangerous to convict.

Criminal law - Appeal and new trial and inquiry after conviction - Appeal against conviction - Whether Magistrate misdirected himself as to application of law of self-defence.

DARWIN, 24 April 1997 (hearing), 29 May 1997 (decision) #DATE 29:5:1997 #ADD 29:8:1997

Solicitors for the Appellant: NT Legal Aid Commission

Appeal against conviction. The appellant was convicted by the Court of Summary Jurisdiction sitting at Alice Springs for that on 1 March 1996 he unlawfully assaulted David John Knight.

The amended grounds of appeal are: "1. The finding of guilt was unsafe and unsatisfactory because of the failure of the Police to investigate adequately the charge against the appellant. In particular, the investigating police failed to obtain a statement from a witness to the alleged incident in circumstances where they should have done so.

That the evidence was so unsafe and unsatisfactory that it was dangerous to convict the appellant.

3. That the learned Magistrate misdirected himself as to the application of the law of self defence." Upon reviewing the evidence before the Court given by Mr Knight and his wife, and Constable Wessels for the prosecution and that of the appellant, the Magistrate made the following findings, rejecting a version of events given by the appellant: - The evidence of Mr Knight was supported by that of Mrs Knight.

• Mr Knight, the manager of a caravan park, went to a site in the park to advise the occupants that it was against the rules of the park for a taxi, which had gone to the site, to do so. He then left.

• The appellant went up to him and there was an argument about the matter. The appellant walked away, using foul language, and Mr Knight asked him to leave the park.

• The appellant returned to Mr Knight and grabbed him by both arms. Mr Knight pushed the appellant's arms away and in that process, Mr Knight suffered a scratch to his nose. Nothing serious.

• The defendant had an aggressive manner and Mr Knight punched him twice in the head "to protect himself".

• The appellant staggered back and kicked at the area of Mr Knight's groin, but it "did not connect very much". There had been no particulars sought as to the unlawful assault, and his Worship did not deal specifically with what it was that the appellant had done which constituted the assault in the course of his reasons prior to convicting him. For example, there was the grabbing of Mr Knight's arms, the aggressive manner or the kick to the groin. (As to "assault" see the definition in s187 Criminal Code (NT) 1983). However, the position became clearer when it came to the sentencing remarks, in the course of which his Worship made it sufficiently clear that he regarded the assault as being constituted by the appellant's grabbing of the victim's arm and the "subsequent almost kick to the groin ... after he had been punched twice". No mention was made in the reasons for finding guilt as to whether anything which the appellant had done was evidence of justification by way of self defence. The question of onus of proof in that regard was not specifically mentioned. The issue had been raised by the appellant when interviewed by the police and in his evidence and counsel followed it up in address. I will return to it (see ground 3).

As to ground 1, the appellant told police in an interview conducted soon after that there may have been an independent witness to the events. He referred to "a guy in the caravan park who had heard us arguing, ...". When asked where the person was who saw the events, the appellant said: "I'm not exactly sure, but he was wearing a woolly shirt and he lives in a sort of a caravan with a nice sort of an annex". The appellant did not know that person's name, but he identified, on a plan produced by the police, a location and said "the witness lives about here". The appellant obviously thought he was going to go back to the caravan park that evening with police, and told them that he could show them where the potential witness was staying, saying: "You can talk to the bloke". One of the policeman, Constable Wessels replied: "OK. We'll do that then". Later Constable Brown said: "What I want to do is while we're there is go and find out who this guy is, and speak to him and see if he can bring us any other evidence to light. All right?" The appellant said: "OK". The police explained that they had no choice but to charge him. There was the complainant and another witness (Mrs Knight) and the interview was designed to obtain the appellant's version. Senior Constable Brown went on: "But in all fairness to you, and you know to find out what's going on, I need to speak to the guy who ...". The appellant was charged and bailed after the interview, a condition of his bail being that he was not to approach Mr Knight which effectively meant that he was not able to go back to the caravan park or perhaps even make a telephone call. Whatever transpired after the interview is not clear, but the police and the appellant did not on that evening return to the caravan park.

Only Constable Wessels was called at the trial. Senior Constable Brown was at Papunya. In cross-examination Constable Wessels said that Senior Constable Brown was the policeman in charge of the case. Constable Wessels could not remember when he went back to the caravan park looking for the potential witness, but said it was that night, or a couple of nights later, but it was only once. It was in the evening when he and Senior Constable Brown attended the site which the appellant had indicated the person may have been, but no one was there. He was not aware of enquiries being made with a view to identifying the person and as to whether or not he was a permanent resident of the caravan park. Senior Constable Brown may have conducted other enquiries, but Constable Wessels was not aware of them. He acknowledged that he knew that the appellant's case was that he was defending himself, that it would have been important to the investigations to speak to an independent witness, and that it was the duty of an investigating police officer not only to look for evidence that incriminates someone, but to look also for evidence that exculpates that person from a crime. No calling card was left requesting anyone from that particular site in the park to contact the police.

There was no evidence that the accused endeavoured to have enquiries made on his behalf nor that he communicated further with the police to see what, if anything, they had done. It was not known whether that person, if found, could give any evidence as to the events, or if so, whether the evidence would support the prosecution or defence.

In the course of submissions from the prosecutor, the learned Magistrate enquired as to whether a conviction would be "unsafe" in circumstances when, in his Worship's view, the police had not satisfactorily endeavoured to identify, locate or interview the potential witness. However, it was not suggested that either police officer should be regarded as having decided for some improper purpose there would be no further enquiry made for the person. The case was not related to the authorities regarding the exclusion of evidence, but it seems to me that the general principles lying behind those cases may well be applicable here. This ground of appeal suggests, as Constable Wessels acknowledged, that there was a duty on the police in the circumstance of this case to seek out and interview, if successful, the potential witness. It was submitted that failure to do that renders the finding unsafe and unsatisfactory. Reliance was placed upon Wyatt v R [1991] FCA 60; (1990-91) 99 ALR 490 and especially what fell from Jenkinson J at pp492-3. Wilcox and Miles JJ agreed. There it was a ground of appeal that the conviction was unsafe and unsatisfactory because of the failure of police to examine scientifically the appellant's fingers for traces of the victim's blood. It had been submitted that the appellant had been deprived of the benefit of evidence which that scientific examination might have provided for his rebuttal of the victim's allegations. As Jenkinson J noted, commencing at p492, it had not been submitted that any police officer had decided for some improper reason not to suggest that the examination be made, but rather that neither they nor the doctor involved realised that the examination ought to be made. On that basis his Honour found it was not easy to subsume the argument in support of that particular ground of appeal under the principle expounded in R v Ireland [1970] HCA 21; (1970) 126 CLR 321 and Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. It was simply suggested that the police inactivity had been incompetent. His Honour went on at p493: "But, whether or not the circumstances to which attention is drawn by counsel for the appellant are analogous to some other circumstances which have been authoritatively classified in criminal jurisprudence, the court has responsibility to consider whether the circumstances upon which reliance is placed show that there has been a miscarriage of justice. I do not understand the categories of circumstances giving rise to such a miscarriage to be closed". Going to the circumstances of that case, his Honour proceeded: "It may assumed, without deciding, that a failure by a person in authority to cause to be undertaken some scientific examination of available material by means of which cogent evidence for or against a suspected person's guilt of a serious crime could reasonably be expected to be obtained might in some circumstances result in the conclusion, before trial, that a fair trial of the suspected person could not be had and, after trial, that he had not had a fair trial. Much would depend, in determining whether either conclusion should be drawn, on the actual beliefs, and on what should have been the beliefs, of the person in authority concerning the availability and the likely cogency of such evidence, and concerning the capacity of other persons - particularly persons acting in the suspected person's interest - to get the evidence which the person in authority had failed to get". Here, there was no reason whatsoever for the police not to have believed what the appellant had said regarding the potential witness, either as to the opportunity that he may have had to observe what happened in the fight, or as to where he might be located. The caravan park was easily accessible to police, there was nothing to stop them going into the park and making enquiries. The evidence is that they did so on one occasion, but no one was home at the place to which they had been directed. There was no evidence of enquiry of those responsible as to the identity of the person or persons who occupied that site, whether or not they lived there permanently, and whether or not they had moved from the site in the period between the time when the fight occurred and the police returned. Whether Senior Constable Brown may have done more is simply not known, and the evidence of Constable Wessels, such as it was, was imprecise and not conducive to the view that so far as he knew adequate enquiry had been made with a view to trying to speak to the potential witness. As to the appellant's opportunity to do that, he had undertaken not to go back to the caravan park as part of his bail conditions, and he was told by the police that they would make the enquiry. In my opinion the appellant was deprived by the failure of the police to make adequate enquiry of any prospect that the enquiry may have afforded evidence tending against a conclusion of guilt. In this jurisdiction, Hallett v R (1995) 3 NTJ 1422, the appellant had been charged with committing an act of gross indecency with a male in public and it was necessary for the Crown to establish the presence of a person who was not a party to the act. The prosecution gave particulars of the names of the persons other than the appellant and the complainants who it was alleged were present at the time of the relevant acts, but did not call any of the eight persons named in the particulars relating to some of the counts on the indictment to give evidence, and did not explain at trial the reasons for not calling those persons. Gallop J at p1442-3 said: "That eight persons who may have witnessed what the Crown was alleging the appellant had done and yet not called to give evidence on behalf of the Crown is surprising in itself. But the absence of an explanation is astonishing. At the hearing of the appeal before this Court, counsel for the respondent proferred the explanation that the witnesses were not called to give evidence because the Crown did not have their evidence and did not know what they would have said about the Crown allegations. I agree with the submission on behalf of the appellant that this is an even more astonishing situation. It amounts to a statement by the Crown that the investigating police did not even make inquiry or investigation from the eight named persons. If that is the way crime is to be investigated then the consequences may well be that any resulting conviction of that crime is unsafe and unsatisfactory". Although coming to the same result, it does not expressly appear that Angel J agreed with what Gallop J had said (it was not necessary for him to do so), but Thomas J said that she agreed with these reasons. The appellant in that case had denied the acts with which he was accused.

In R v Williams (1992) 8 WAR 265 the Supreme Court of Western Australia was concerned on appeal by the Crown with the question of the admissibility of a confession made at a time when the accused respondent had been found by the trial Judge to have been drinking heavily for two days (on and off) and finding that it was probable that he had a blood alcohol level approaching the quantity shown by the deceased, 0.417. There was other evidence of the respondent's behaviour indicating that he was affected by alcohol. The police had not sought to procure from the respondent a sample of his blood or of his breath with a view to determining whether he had in fact the level of alcohol in his blood at the time of the interview at which the confession was made. In the view of the Court on appeal, the question of unfairness arose because the respondent had been deprived of the opportunity of bringing some form of objective evidence which would assist in resolving the only issue then relevant, namely: Did the respondent make the confession in the exercise of a free choice to either speak or remain silent? That question reflected directly on the respondent's right to a fair trial (p277). The Court of Appeal was critical of the learned trial Judge because he had speculated. "Unfairness is not to be judged by fixed rules, nor is it necessarily to be judged by the propriety or otherwise of the actions of investigating officers. It is to be judged against the effect which some evidence, or importantly in this case lack of evidence, will produce on the trial of an accused ... The respondent has been deprived of evidence which could be relevant at his trial concerning his condition at the time that the statements were taken ... the respondent has been denied the opportunity of adducing evidence which could have been readily available ...". That was the view of the majority, Rowland and Owen JJ. Franklyn J dissented on that point.

I can discern no relevant distinction between a case in which evidence, such as a confession, had been obtained in circumstances where it was unfair to admit it (for example, Duke v The Queen [1989] HCA 1; (1989) 63 ALJR 139 at 141) and in the case where the unfairness may arise because other investigations by police had otherwise not been properly conducted, in the sense that the investigations were inadequate and for which there was no reasonable explanation or excuse for the failure. In some circumstances it may be, as suggested in R v Wyatt, that no injustice arises because the accused can be shown to have had an opportunity to secure the evidence for other reasons.

In this case the accused may have been in breach of his undertaking as to bail had he attempted to make enquiries for himself to identify the potential witness and he was entitled to rely upon what he was told by the police namely, that they intended, in fairness to him, to endeavour to do that. The appellant was denied by those circumstances of the opportunity of adducing evidence which could have been available and which may have supported his defence to the charge. The appeal is allowed on that ground.

It is not necessary to proceed to consider the other two grounds, but I should do so, if only briefly. As to ground 2, it was argued on appeal, as it had been before his Worship, that he should not accept the evidence of Mr and Mrs Knight and some of his Worship's findings were said not to have been borne out by the evidence. His Worship's findings were based upon his assessment of the credibility of all the witnesses. He rejected a submission that he should not accept what Mrs Knight had to say as she may have been contaminated because she was present when the police took a statement from her husband and thus knew what he was going to say and because she was unreliable in her evidence as to what it was that she saw. As to the evidence of the protagonists, his Worship said that in some respects he was unimpressed by Mr Knight, and that the appellant was also an unsatisfactory witness, but of him he added that he did not believe he was a witness of truth. Those assessments were expressly made on the basis of his Worship's observations of each witness whilst giving their evidence. No good reason was shown on appeal as to why his Worship's findings miscarried, bearing in mind the weight to be given to findings made by the tribunal of fact based upon assessment of credibility of the witnesses.

Ground 3 raises the issue of self defence. The appellant's statements to police in the course of the interview, confirmed at trial, varied somewhat from the version given by Mr and Mrs Knight. The appellant said that it was Mr Knight who had initiated the physical aggression by poking him in the ribs and that he, the appellant, put a hand out to ward him off and was then punched twice about the head causing him to react by putting his foot up. He denied having grabbed Mr Knight with both his hands or kicking him in or near the groin. He maintained throughout that Mr Knight came at him first, and all he ever did was to defend himself. The issue of self defence was clearly raised by him. His Worship reviewed all of the evidence in his reasons repeating the substance at least of the case for the prosecution and for the defence. His findings as to credibility appear elsewhere. Having said that, the Magistrate proceeded to say that he was satisfied that the version described by Mr and Mrs Knight was accurate and found the appellant guilty of the assault. In the course of his sentencing remarks his Worship made it sufficiently clear that he regarded the assault as being constituted by the appellant's grabbing of Mr Knight's arms and the "subsequent almost kick to the groin ... after he had been punched twice". It is to be inferred from all that that his Worship did not accept the appellant's denial that he had grabbed Mr Knight by the arms, and that he did not accept that the kick was in defence of himself, but rather a retaliation for having been punched by Mr Knight.

The submission on appeal was that during the course of address at trial, his Worship had not displayed a proper understanding of the principles to be applied upon consideration of the issue of self defence, that is, that once the defence had been sufficiently raised, it lay upon the prosecution to exclude it beyond reasonable doubt. It is correct to say that during the course of the address something fell from his Worship which might indicate erroneous thinking on his part, but counsel quite properly and clearly made the principles clear. I do not accept that in such a case the learned Magistrate would not have properly directed himself on the issue. His express finding that the version given by Mr and Mrs Knight was accepted put an end to the appellant's claim that he was defending himself. He had been found to have grabbed Mr Knight by the arms in the face of his evidence that he had not, and that he had also been found to have kicked out. No reasons were advanced as to why those actions were not assaults. The question of justification did not arise on the facts as found.

If it had not been for the matters raised under ground 1, I would have dismissed this appeal.