Goss v Clayton [2019] TASSC 13

Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, applied.

Judgment Number: [2019] TASSC 13

ACTING SERGEANT ASHLEY GOSS v DARRELL ROBERT CLAYTON

1. The respondent, who was at the relevant time the manager of the Black Stallion Hotel in Launceston, was charged on complaint with two counts of common assault. The charges arose from events which occurred on 19 May 2017 at the hotel. It was alleged that he had assaulted two patrons of the hotel in the car park after closing time, by striking each of them with a cricket bat. The charges proceeded to hearing before Magistrate K Stanton on 25 July 2018. At the conclusion of the hearing, His Honour determined, with ex tempore reasons, that he was not satisfied that either charge had been proved, and dismissed the complaint.
2. The applicant seeks a review of that decision. The sole ground of review is that "on no reasonable view of the evidence could 'the magistrate' have failed to be satisfied beyond reasonable doubt of the guilt" of the respondent. As is well established, such a ground can only succeed if I am satisfied that the decision of the magistrate was not open to him, as a reasonable person. I am not entitled to weigh the evidence and reach my own conclusions: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21; Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454.
3. Both complainants gave evidence. In most respects, their versions were consistent, although as I will point out, there were some important exceptions to this. They had been at the hotel for a social evening and each had consumed a quantity of alcohol. Shortly before closing time, an incident occurred involving the complainants and the respondent. One of the complainants, Mr Johnson, urinated on the nature strip in front of the hotel. The respondent then told both men that they were cut off from purchasing further drinks. According to each complainant, they reacted calmly and advised the respondent that they were planning to leave in any event.
4. Shortly before they left, they were invited by a man who was not previously known to either of them, to go into the car park for a "smoke". Each conceded during the course of cross-examination that the "smoke" was, in fact, a "joint" of marihuana. While the three men were sharing the joint, the respondent appeared from the back of the hotel, carrying a cricket bat. He walked towards them and appeared to be angry. He said something to the men. Mr King recalls it as "Do you want to have a go?" He then struck each of them on the legs, Mr King first and then Mr Johnson. When they remonstrated with him, he struck Mr King across the head with the bat. He then returned to the hotel. The men left the area shortly after.
5. Mr King's father, Leon King, gave evidence. He was awoken about 11.30pm on the night in question by a telephone call from his son who told him that "... the bastard at the hotel had hit him in the head, three times, with a cricket bat". He went to collect his son but could not find him at the hotel. Mr Leon King searched for him for some time and eventually located him and Mr Johnson walking on the road some distance from the hotel. There was an injury to his son's head, which was bleeding. He provided first aid. Photographs and medical records were presented in relation to Mr King. The records established that he did not go to hospital until 4.06pm on 21 May 2017. It seems that he consulted the hospital because of a concern about his hearing. The hospital records confirm that on examination, swelling was seen on the right side of the face and deep grazes on the head and right jaw. Photographs which had been taken some days after the incident and which show what appears to be a cut across the top of Mr King's head, an injury to the right ear, and some bruising to his leg, were placed in evidence.
6. When the respondent was interviewed by police, he acknowledged that Mr King and Mr Johnson had been at the hotel, that he had seen Mr Johnson urinating outside the hotel, and that he had told both men to leave. He asserted that they had not responded well, but had eventually left and he then closed up the hotel. He denied having any further interaction with them after that. This included a specific denial of the occurrence of the incident in the car park.
7. However, when the respondent gave evidence at the hearing, he acknowledged that he had lied to police about the events after the hotel had closed. He agreed that he had seen the men in the car park smoking and decided that he needed to force them to leave the premises. He had taken a cricket bat outside and walked towards the men, telling them to "fuck off out of the car park". He said that both men had moved towards him and he had felt threatened. He had swung the bat at them in self-defence. He acknowledged hitting Mr King in the leg and agreed that he might have hit Mr Johnson, but was not sure that he had done so. He denied striking Mr King in the head or on any part of his body other than his leg. Under cross-examination, he again asserted that he had acted in self-defence because the men were advancing on him. He said "Well they was three pretty big fellas walking at me, yeah, pretty intimidating." He explained that he had taken the cricket bat with him to use in self-defence and to scare the men away. When questioned about why he had lied to police, he said that he was scared of losing his employment over "a little incident like that".
8. Some aspects of the prosecution case which tend to weaken the probative force of the testimony of the complainants are as follows:
   • There were some inconsistencies between the evidence of Mr King and Mr Johnson. Mr King said that when the respondent appeared initially, he was with another man, whom he identified only as Ben. Mr Johnson also described a man called Ben being present, but only after the assault had occurred.
   • Mr King's description of the attack was that after both men had been struck to the leg, he was hit to the head on two occasions - firstly to the side of the head and then to the top of the head. He and Mr Johnson then approached the respondent, who had moved to the back of the hotel and was standing there with another man. The other man pushed Mr King and told him to leave. It was then that he and Mr Johnson left. In his evidence, Mr Johnson said that after they had been hit in the leg they both had their hands up and it was then that the respondent struck Mr King in the head. It was a forceful swing to the top of the head. They then left immediately. However, in cross-examination, Mr Johnson said that after the men were struck in the legs they had "stood and talked and said 'what was that about' and then we thought oh we'll go ask him calmly and just see what brought that on and so we did and it was at that point when Daryl struck JB to the head with the cricket bat". This is a different sequence to that described in examination-in-chief by Mr Johnson and in the version given by Mr King.
   • The evidence established that Mr King was reluctant to go to the hospital or report the matter to the police, but was eventually persuaded to do so by his parents.
9. The learned magistrate's conclusions can be summarised as follows:
   • His Honour was not satisfied beyond reasonable doubt that the respondent had struck Mr King in the head with the cricket bat. He accepted that Mr King had some injuries to his head, but noted that no medical evidence had been provided by the prosecution which would establish consistency between the injuries and the allegation that they were caused by a blow to the head with a cricket bat. However, his Honour was prepared to accept that the injuries were consistent with that explanation, but also noted the possibility that they may have arisen "in some other way". In cross-examination, it had been suggested that Mr King may have fallen while walking on the road after the incident, as a result of the effect of the alcohol he had consumed that night.
   • His Honour noted the inconsistencies between Mr King's evidence and that of Mr Johnson. These inconsistencies included the number of blows to the head, which he considered to be "an inconsistency as to a central matter". He also noted Mr King's reluctance to seek treatment and report the matter to the police.
   • His Honour was satisfied that the respondent had struck both men to the legs with the cricket bat, but could not exclude the respondent's version that he had done so because the complainants and the other man were approaching him. His Honour could, therefore, not exclude that the respondent had acted in self-defence.
   • His Honour also could not exclude that the actions of the respondent in striking the men to the legs with the cricket bat amounted to the use of reasonable force in the circumstances as the respondent believed them to be. In making this assessment, he noted it was a pre-emptive strike, but also considered that he was "not to balance this conduct with a nicety".
   • His Honour was not satisfied that the lie told by the respondent to the police constituted an implied admission of guilt, in that it was told out of a consciousness of guilt. In particular, his Honour was not satisfied that the only explanation for the lie was that the respondent was conscious of his guilt in respect of the offences of assault. He accepted the reasonable possibility that the respondent had told the lie for the reason he gave in evidence, that is, that he was concerned that even to go outside with the cricket bat may have jeopardised his employment.
10. There is no question that the prosecution case was reasonably strong. There was evidence of some injury to the head of Mr King, and, as his Honour accepted, this was consistent with the use of the cricket bat. The respondent's actions in going outside with the cricket bat suggest an aggressive frame of mind, and one which would have been consistent with a pre-emptive and unjustified attack on the men. However, it is impossible for me to conclude that it was not reasonably open to the magistrate to accept that it was reasonably possible that things had happened as described by the respondent, that is that he had been approached by the three men as soon as they saw him. It is also not possible to conclude that it was not open to the magistrate to accept that, in swinging the bat at the legs of the men, the respondent had acted in reasonable self-defence. Although he had a weapon in his possession, and had used that weapon to attack the men, it was open to the magistrate to conclude that he was facing a situation in which he was being approached by three men. His evidence about what he believed to be their intentions was scant, but enough was said to indicate that he felt threatened and had acted because of this. The magistrate had the benefit of observing the witnesses and was entitled to accept the reasonable possibility that the respondent was telling the truth about this.
11. A crucial issue was whether the respondent had struck Mr King in the head. If he had done so, it would not have been open to the magistrate, in my view, to find that this action amounted to reasonable force in the circumstances as the respondent believed them to be, having regard to his evidence. To strike a man in the head with a cricket bat by swinging it at his head would be an extremely dangerous act and would not in these circumstances have been justified in lawful self-defence. The question, however, is whether it was open to the magistrate to find that he was not satisfied that the respondent had perpetrated this act. The magistrate had before him, on the one hand, the evidence of Mr King and Mr Johnson, and some evidence of injury to Mr King's head. On the other hand, he had the evidence of the respondent denying that he had perpetrated this act. He also had to take into account that the respondent had deliberately lied to police about the offence in question. This was relevant to the reliability of the respondent's evidence, even if it could not be used as evidence of a consciousness of guilt in respect of the charged offences.
12. The reasoning engaged in by the magistrate was open to him. There was some inconsistency between Mr King and Mr Johnson about these events. Apart from the photographs and the records, there was no medical evidence presented by the prosecution which described the injuries or expressed an opinion concerning their causation. Ultimately, it was incumbent on the magistrate to assess the credibility and reliability of the evidence of these witnesses. On the basis of the evidence actually before him, it was open to the magistrate to accept the reasonable possibility that the respondent had given a truthful and reliable account of his actions, including with respect to where and how he struck Mr King with the cricket bat.
13. The ground of review has not been made out. The motion is dismissed.