Fruin v White [2005] TASSC 25

Pettitt v Dunkley [1971] 1 NSWLR 376; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Re Appleby and O [2003] TASSC 29, referred to.

Magistrates - Jurisdiction and procedure generally - Procedure - Orders and convictions - Sentencing - Imprisonment - General matters - Sentence of three months' imprisonment - Whether manifestly excessive - Assault by pinning victim between two vehicles.

Judgment ID Number: [2005] TASSC 25

1 This is a motion to review in respect of two convictions and a sentence imposed by a magistrate. The applicant was charged under the Police Offences Act 1935 with unlawfully assaulting a Mr Perry, and with unlawfully injuring property, namely a panel of a motor vehicle. The learned magistrate found both charges proved, convicted the applicant, and imposed a global sentence of three months' imprisonment. The applicant contends that the learned magistrate's findings of guilt were unsafe and/or unsatisfactory; that he gave inadequate reasons for finding the charges proved; and that the sentence is manifestly excessive.

2 The charges arose out of a confrontation on Wellington Street, Launceston at its junction with Bathurst Street in the early hours of 28 November 2003. The complainant was travelling in a generally northerly direction along Wellington Street in a vehicle with two companions, having come from Prospect. The driver was his niece, Theresa Perry. She owned the vehicle. It was a silver Kia. Its other occupant was her boyfriend, Luke Thow. As they travelled along Wellington Street, they were being followed by the applicant in his four-wheel-drive vehicle. It was a Mitsubishi Triton with a bull bar at the front. He was accompanied by his son. He stopped his vehicle adjacent to Ms Perry's vehicle, which was stopped at a red light. Mr Perry alighted from Ms Perry's vehicle, and approached the applicant's vehicle. The prosecution case was that the applicant then drove towards Mr Perry, pinning him between the two vehicles, injuring him, and causing damage to Ms Perry's vehicle. It was not alleged that the two vehicles made contact. Rather, the prosecution case was that one panel of Ms Perry's vehicle had been dented as a result of the applicant's vehicle forcing Mr Perry against that panel. The defence case was that Mr Perry had unsuccessfully tried to squeeze between the two vehicles when both were stationary, injuring himself in the process and, apparently, damaging Ms Perry's vehicle in the process.

3 It is necessary to explain the background to this incident. The occupants of each car were associated with a woman named Shirley Johnston, who gave evidence for the applicant. One of her daughters is married to Mr Perry. Another of her daughters lives with the applicant's son. Apparently there was some degree of hostility between different parts of Ms Johnston's family. Mr Perry gave evidence that on the night in question he went to the home of the applicant's son for the purpose of talking about an incident that had happened a week earlier; that he knocked on the door prior to 2am; that nobody answered; that he then went to Ms Johnston's home; and that he and his companions were returning home from her house along Wellington Street when the applicant's vehicle came up behind theirs. Under cross-examination he said that he had consumed about six stubbies, and that it was about 1.30am when he got to Ms Johnston's house. Ms Perry and Mr Thow also gave evidence as to the sequence of events leading up to the confrontation on Wellington Street. Their versions were substantially similar to the version given by Mr Perry.

4 The applicant gave evidence that he received a phone call at home from his son at about 1.45am; that he advised his son to call the police and stay indoors; that he drove to his son's house; that he saw a silver car parked at the corner of his son's street; that Mr Perry and his companions were in that car; that his son spoke to Mr Perry; that that vehicle departed; and that he followed it to the point on Wellington Street where the incident in question occurred. Mr Perry and his companions each denied that they had been in the vicinity of the applicant's son's house at the time when the applicant said he had seen them and the silver vehicle there. The applicant's case was that they must have returned to his son's street after visiting Ms Johnston. The prosecution case was that they had not returned there, and that the applicant had come upon their vehicle by chance whilst travelling away from his son's house.

5 Some months ago the respondent sought further and better particulars of the ground of appeal whereby the applicant contended that the convictions were unsafe and/or unsatisfactory. In response, the applicant's solicitors delivered particulars reading as follows:

"1 The learned Magistrate erred in taking into account medical opinion when no admissible medical opinion was before the Court.

2 The learned Magistrates [sic] erred in that he failed to consider accidental movement of the Applicant's motor vehicle."

6 No submissions were made to me on behalf of the applicant as to the possibility that his vehicle had moved accidentally. There was no evidence of it having moved accidentally. It was not put to any of the prosecution witnesses that the vehicle had moved accidentally. The applicant stated that he had definitely not moved his car forward into Mr Perry. His son said that the applicant's vehicle definitely did not move at all. Mr Perry gave evidence that, immediately before being pinned between the two vehicles, the applicant said, "I haven't got a problem my bull bar can't fix." Ms Perry said the applicant said, "I don't have a problem, my bull bar does", and then squashed Mr Perry. Mr Thow's evidence was almost identical. He said he heard the applicant say, "I don't have a problem but my bull bar does", and that the applicant then turned the car into Mr Perry. In the light of the evidence of the three principal prosecution witnesses, and of the evidence of the applicant and his son to the effect that the vehicle was not moved, the possibility that the applicant's vehicle moved accidentally is fanciful in the extreme. The possibility that it did so does not warrant further comment.

7 The complaint concerning "medical opinion" relates to evidence given by Mr Perry when he was asked by the prosecutor whether he was able to say what injuries he sustained. His response was as follows:

"Bruising to the right knee, bruising to the right hip, before x-raying they didn't know whether the wrist was broken or what, upon x-rays it wasn't but they didn't know if there was any nerve damage done and because of the twisting of the arm when it was twisted around hitting the car I've got nerve damage in my shoulder where the joint has been squashed and I'm having injections to relieve that and later on I'll probably need an operation to scrape it out to make the hole bigger so the nerves are not so touchy and my arm doesn't go numb."

8 There was no objection to that evidence. Plainly, the passage I have quoted contains a mixture of admissible and inadmissible evidence. The prosecutor was entitled to lead evidence from Mr Perry that he suffered bruising to his right knee; that he suffered bruising to his right hip; that a doctor arranged for one of his wrists to be x-rayed; that his arm was twisted; that his doctor had arranged for him to have injections; and that his medical treatment had not concluded. The evidence that his wrist was not broken was inadmissible hearsay, but it was favourable to the applicant. The evidence as to nerve damage and the need for an operation was inadmissible. To the extent that it was opinion evidence, Mr Perry was not qualified to express any relevant opinion. To the extent that he was recounting what a doctor had told him, it was hearsay.

9 The learned magistrate referred to the evidence as to Mr Perry's injuries when stating his reasons for finding the two charges proved. He said the following:

"It is simply a nonsense that the complainant could have sustained the crush injuries which he did particularly as to his arm being pinned awkwardly behind him and having regard to the impressions his body left on the Kia and that the Kia could have sustained the impacted damage which it did if the complainant had simply squeezed himself between the two vehicles. Those injuries and that damage is [sic] far more consistent with the defendant driving forward so as to pin the complainant between the two vehicles."

10 The learned magistrate erred in relying on inadmissible evidence as to the extent of Mr Perry's injuries. However, it does not follow that his findings of guilt were unsafe or unsatisfactory. The basis upon which an appellate court may quash a conviction regarded as unsafe or unsatisfactory has been explained by the High Court in a number of cases, including Morris v R [1987] HCA 50; (1987) 163 CLR 454, Chidiac v R [1991] HCA 4; (1991) 171 CLR 432, and M v R [1994] HCA 63; (1994) 181 CLR 487. Those cases all related to verdicts of juries, but a judge hearing a motion to review may quash a conviction imposed by a magistrate on the basis that it is unsafe or unsatisfactory if he or she considers that the magistrate ought to have entertained a reasonable doubt: Kelly v O'Sullivan [1995] TASSC 72; (1995) 4 Tas R 446. The sorts of circumstances that might lead an appellate court to quash a conviction because of it being unsafe or unsatisfactory were referred to by Mason CJ, Deane, Dawson and Toohey JJ in M v R (supra) at 494 in the following passage:

"If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

11 In some cases, verdicts have been regarded as unsafe or unsatisfactory because the quality of the Crown evidence was inherently suspect. In Morris (supra) the Crown case depended almost entirely upon a confession by a chronic alcoholic suffering from brain damage. In Carr v R [1988] HCA 47; (1988) 165 CLR 314, the Crown case depended almost entirely on an unsigned but disputed admission said to have been made to police. In Ralph and George (1988) 37 A Crim R 202, the only evidence against the accused was the uncorroborated evidence of an accomplice who was a convicted criminal, an admitted liar and perjurer, and a person capable of clever deception. In M (supra) the uncorroborated evidence of the complainant was inconsistent with medical evidence, there was a lengthy delay in the making of the complaint, and there were a number of inconsistencies with circumstances clearly established by other evidence.

12 In order for a conviction or a finding of guilt to be set aside as unsafe or unsatisfactory, it is not sufficient to demonstrate that there has been an error on the part of a magistrate in wrongly admitting evidence or wrongly relying upon inadmissible evidence. It is necessary to demonstrate that the prosecution evidence lacked probative force to such an extent that the magistrate ought to have entertained a reasonable doubt.

13 The outcome of this prosecution depended largely upon the learned magistrate's assessment of the credibility of the evidence of the principal witnesses - three from one vehicle and two from the other. Not surprisingly, there was some evidence that weighed in the applicant's favour. Hostilities on the night in question were initiated by Mr Perry and his companions paying a visit to the applicant's son well after midnight for the purpose of discussing a grievance. There was evidence from which the learned magistrate could properly have inferred that Mr Perry intended to harm the applicant's son, or at least to intimidate him. The applicant had become involved only in response to a phone call from his son, who was no doubt worried. The applicant had done the right thing by suggesting that his son remain indoors and call the police. There was evidence that the police had in fact been called, and had attended the son's house, but only after he and the applicant had left. There was evidence from Ms Perry that she had been waiting in her vehicle on the corner of the son's street, though not at the stage when the applicant and his son said that they had seen it there. Mr Thow had made a written statement to police officers in which he had not mentioned any comment about the applicant's bull bar.

14 However, whilst there was a body of evidence favourable to the applicant, I do not think it can be said that the evidence against the applicant lacked probative force to such an extent that the learned magistrate should have entertained a reasonable doubt as to his guilt on either charge. Without the inadmissible evidence as to Mr Perry's injuries, there was still a body of evidence from a number of witnesses supporting the prosecution case that Mr Perry's injuries and the damage to the vehicle had been caused by the applicant driving his vehicle into Mr Perry, rather than by Mr Perry squeezing himself between the two vehicles. The likelihood that a man tried to squeeze himself between two stationary vehicles using such force that he injured himself and dented one of the vehicles was not great. It is inherently much more likely that the bodily injuries and the damage to the vehicle were caused in the manner alleged by the prosecution. I am therefore not persuaded that the findings of guilt were unsafe or unsatisfactory.

15 Whilst the learned magistrate erred by taking into account inadmissible evidence relating to Mr Perry's injuries, I do not think that made any difference to his conclusions. Having regard to the admissible parts of the evidence as to Mr Perry's injuries, I do not think that the learned magistrate would have reached a different conclusion if he had ignored the inadmissible evidence as to nerve damage and the possible need for an operation. The taking into account of inadmissible evidence was not relied upon as a separate ground of appeal and would not, in my view, of itself alone, warrant the setting aside of the convictions.

16 The learned magistrate delivered an oral reserved decision after an adjournment of nine days. He concluded that he preferred the prosecution account and rejected that of the defence. Before stating that conclusion, he made observations as to a number of matters unfavourable to the applicant, consisting of the following:

(a) In the paragraph that I have already quoted, the learned magistrate expressed the view that it was "simply a nonsense" that Mr Perry could have sustained his injuries, and that the vehicle could have sustained its damage, if Mr Perry "had simply squeezed himself between the two vehicles".

(b) He referred to the evidence of Mr Perry, Ms Perry and Mr Thow as to the applicant making a comment about his bull bar indicating an intent to use it to solve a problem.

(c) He referred to passages in the evidence of the applicant indicating that he was disgruntled in relation to a family dispute involving the Perry family.

(d) He rejected the evidence of the applicant and his son that they saw Ms Perry's car parked near the son's home. He did so on the basis of the evidence that Mr Perry had an issue that he wished to discuss with the applicant's son, and that the encounter between them and Mr Perry would have given him an opportunity to discuss that issue, if that encounter had occurred. I take the learned magistrate to have meant that, if that encounter had occurred, Mr Perry would have taken the opportunity to discuss his grievance, rather than departing as alleged by the applicant and his son.

17 A judicial officer must adequately state his or her findings and his or her reasons for a decision: Pettitt v Dunkley [1971] 1 NSWLR 376. The consequences of a statement of reasons being inadequate were discussed by Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, in which his Honour said the following at 444:

"It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered."

18 Neither the prosecutor nor defence counsel addressed the learned magistrate at the conclusion of the evidence. Leave to do so was not sought under the Justices Rules 2003, r35(1)(f). However, although no submissions on behalf of the applicant were made to the learned magistrate, I think it was his duty to identify and consider the principal arguments supporting the applicant's version of events, particularly the argument that he was unlikely to have assaulted Mr Perry when it was Mr Perry who had initiated hostilities that night, whereas the applicant had suggested the calling of the police. In Re Appleby and O [2003] TASSC 29 at par14, Crawford J said:

"The responsibility to state reasons in a case will, of course, depend on its circumstances. If the facts are not in dispute it is not usually necessary to state them all or to state why they have been found. ... In magistrates courts particularly, there is a need for expedition and overly detailed and crafted reasons are not usually expected .... In some cases the reasons for making an order will be obvious and few words will be needed to explain them. However, where there is plainly a contest between the parties, with obvious merit in both of their cases, requiring a preference for the arguments of one over the arguments of the other, the reasons must nevertheless be sufficiently exposed, even if only briefly."

19 In my view, whilst the reasons of the learned magistrate were inadequate in that he did not deal with any arguments that might have been advanced on behalf of the applicant, I do not think the reasons were so inadequate as to warrant the setting aside of the convictions. The learned magistrate made observations as to four matters which, in his view, weighed against the applicant. Obviously it was those four matters that led him to convict. The decision was not demeanour-based. The learned magistrate evidently regarded the prosecution version of events as so much more probable than the applicant's version that he was satisfied beyond reasonable doubt of guilt. The applicant knows why he lost the case, or at least knows enough about why he lost the case for the inadequacy of the learned magistrate's reasons not to have resulted in a miscarriage of justice.

20 The assault on Mr Perry was a serious one. It involved the use of a vehicle as a weapon. It resulted in injuries that required medical treatment. That treatment was still continuing at the time of the hearing, more than nine months after the assault. Any misjudgment on the part of the applicant could have resulted in the infliction of much more serious injuries. Mr Perry must have been in great fear during the period that he was pinned between the two vehicles.

21 However, there were substantial mitigating factors, and the learned magistrate was acquainted with them. The applicant was 45 years of age. He had no relevant prior convictions. He was a successful businessman. Through his business he had made substantial contributions to charitable and sporting organisations including the RSPCA, the Red Cross, one or more schools, a society providing services for the disabled, and two football clubs. His business provided sponsorship for the serving of breakfasts after the Launceston Anzac Day march each year. The learned magistrate was told that the applicant was a dedicated family man, with three adult children and eight grandchildren. Perhaps most significantly, the applicant became involved in the events of the night in question not as an aggressor, but as a father going to the aid of his son, who had phoned him because of aggressive people banging on the door well after midnight. He had sought to avoid trouble by advising his son to stay indoors and to phone the police. He over-reacted in pursuing Ms Perry's vehicle. He over-reacted in his response when Mr Perry alighted from that vehicle and approached him. He did so on the spur of the moment, and in a stressful situation. He exercised a degree of restraint when committing the assault.

22 During the plea in mitigation, the learned magistrate was reminded by defence counsel that there was no medical evidence before the court as to Mr Perry suffering significant injuries. The learned magistrate responded, "Well you may say that, but neither was there any cross-examination directed towards disputing it." For the reasons I have stated, the learned magistrate should have ignored the inadmissible parts of Mr Perry's evidence as to the extent of his injuries. When defence counsel suggested that there were no significant injuries, he could have invited both parties to adduce evidence as to the severity of the injuries. As he did not do so, he was obliged to proceed to sentence on the basis of the defendant's contention to the effect that there were no significant injuries. See Nash v Haas [1972] Tas SR 1. Instead, he took the inadmissible evidence of Mr Perry into account in sentencing the applicant and, to make matters worse, made a mistake as to what Mr Perry had said. Mr Perry had said that he would probably need surgery. The learned magistrate said, "His advice is that he will require surgery to that arm to preserve nerve function." The learned magistrate erred in elevating a possibility to the level of a certainty.

23 As Professor Warner has said (Sentencing in Tasmania, 2nd ed, par14.207), "In reviewing sentences for assault, appeal courts have made it clear that, although immediate custodial sentences are appropriate for serious cases of assault, the notion that prima facie assault should be punished by an immediate gaol term must be wholly rejected." Three unreported cases referred to in a footnote to that paragraph support that proposition: Lahey v Edwards 46/1967 (Burbury CJ); Jones v Barber 26/1983 (Cox J); Chadd v Stearns B7/1990 (Crawford J).

24 In my view, having regard to the mitigating factors that I have referred to, this was not a case that warranted an immediate custodial sentence. I think the assault was sufficiently serious to warrant a suspended sentence of imprisonment, but not one as long as three months. The errors made by the learned magistrate in relation to the extent of Mr Perry's injuries are not sufficient, in my view, to explain why he imposed such an excessive sentence. I think there must have been some other unidentifiable error on his part in the sentencing process. The sentence of three months' imprisonment must be set aside. Neither counsel suggested that I should remit the matter to another magistrate for resentencing. The more appropriate course is for me to resentence the applicant myself.

25 The applicant spent several hours in custody on 9 September last before being bailed. In the months since then he has had to live with the possibility that the three-month sentence might be put into effect. That has no doubt been very worrying. I am taking those matters into account in his favour. In all the circumstances, I think the most appropriate course is to impose a suspended sentence of 28 days' imprisonment, with a condition that the applicant be of good behaviour for 12 months, together with a fine of $400.

26 I therefore order that the motion to review be allowed; that the sentence of three months' imprisonment imposed on 9 September 2004 be set aside; and that in lieu thereof the applicant be sentenced to 28 days' imprisonment, wholly suspended on condition that he be of good behaviour for 12 months, together with a fine of $400, to be paid within 28 days.