Grove v Gage [2000] WASCA 70

Court of Appeal (WA)|2000-03-23|Before: McKechnie J, Miller J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GROVE -v- GAGE [2000] WASCA 70

Criminal law - Appeal - Magistrate's finding on provocation - Misapprehension of evidence - Effect on findings - Turns on own facts

Giannasi v Wagnorne, unreported; SCt of WA; Library No 960551; 11 September 1996

Mickelberg v R [1984] WAR 191

1 MILLER J: The appellant was charged in the Court of Petty Sessions, Perth with one charge of common assault and one of assault occasioning bodily harm. Each of those assaults was alleged to have been perpetrated on one Tracy Leanne Nichols on 17 January 1999 at the Indian Ocean Hotel, Scarborough. The two charges came on for hearing before Mr G Cicchini SM on 1 November 1999 when the appellant pleaded not guilty and elected to have them both dealt with together. Evidence was duly led by the prosecution and by the defence and at the conclusion of the hearing the learned Magistrate convicted the appellant of the charge of assault, but acquitted him on the charge of assault occasioning bodily harm. From the conviction for assault the appellant appeals to this Court, leave to appeal having been granted by McKechnie J on 3 December 1999. The essential ground of appeal is that the learned Magistrate erred in law in concluding that the prosecution had negatived the defence of provocation raised by the appellant in relation to the assault in question. A number of errors on the part of the learned Magistrate are asserted in relation to his fact finding, such that the appellant submits that by reason of these errors in the assessment by the learned Magistrate of the evidence at trial, the conclusion that the charge was proved was, in the circumstances, unsafe and unsatisfactory.

2 The incident in which Ms Nichols was assaulted by the appellant (that assault being conceded by the appellant although, in his contention, excused at law) occurred in unusual circumstances. The appellant was the licensee of the Indian Ocean Hotel at Scarborough. He was also the trustee of a trust which owned certain holiday units known as Oldsmore Holiday Units. They too were in Scarborough. Ms Nichols and her defacto husband were engaged as managers of the holiday units where they were under notice that their contract of employment was soon to end. That notice had been given by one Andrew Grove.

3 On 17 January Ms Nichols, then five months pregnant, received a facsimile message which related to the imminent termination of the employment of herself and her defacto husband. According to the learned Magistrate, it sent her into a rage, as a result of which she phoned the appellant on two separate occasions, abusing him with foul and aggressive language. Upon completion of the telephone calls Ms Nichols then went to the Indian Ocean Hotel and sought to speak to Mr Andrew Grove. When Ms Nichols found that Andrew Grove was not present she proceeded to the office of the appellant which was situated behind the reception area of the hotel. Without invitation she entered that office and engaged in what the learned Magistrate described as a "barrage of yelling ... she swore at him, she abused him ... (she) was very very angry indeed". The appellant was seated at his desk and was in the course of making a notation of the earlier discussion he had had by telephone with Ms Nichols. When she saw the notes that he had made Ms Nichols grabbed the paper upon which he was making notes, crumpled it and threw it back on the desk. She was told repeatedly by the appellant to leave the office but she refused to do so. Thereafter events moved quickly. According to the appellant, Ms Nichols struck him in the eye, causing him immediate disorientation and "flashing" due to a longstanding problem the appellant had with his eyes following a collapse of the retina. This Ms Nichols vehemently denied at trial. The appellant further testified that when he had tried to leave his office by getting out of his chair, Ms Nichols had pushed him back into it and had essentially prevented him from leaving the office. He did say, however, that the blow to the eye had made him angry, as a result of which he "lost it".

4 On any view of it, there was a struggle between the two parties as the appellant managed to leave his office and that struggle continued into the reception area. There the appellant instructed the receptionist to call the police but Ms Nichols insisted that the receptionist call her defacto husband. Whilst this was occurring the appellant, who had taken up a boxing stance towards Ms Nichols, delivered her what was described as a glancing blow with the left hand to the side of her face. The appellant conceded that he hit Ms Nichols, but said he only did so because he had "lost it" and was acting irrationally.

5 The learned Magistrate pointed out that the appellant had, by his defence, raised the issue of provocation within the meaning of s 246 of the Criminal Code. He rightly appreciated that it was for the prosecution to negative that defence once raised. His Worship saw the issue as essentially one of credibility and made a finding that Ms Nichols was a credible witness who had given a "warts and all account" of what had occurred. He found that the mere fact that she had acted in a reprehensible manner in her approach to the appellant should not and did not affect her veracity, pointing out that she was "brutally honest in making concessions against her interest". The appellant was found to have been vague and inconsistent when subjected to cross-examination, with aspects of his evidence inconsistent with a security video of the events of the reception area. The conclusion reached by the learned Magistrate was that he was unable to accept the evidence of the appellant as to what had occurred in his office. He did not accept that he had been struck in the eye by Ms Nichols, pointing out that there was no medical evidence to support that contention and such evidence as there was of redness to the left eye of the appellant was consistent with grappling which had taken place between the parties prior to the assault. The conclusion the learned Magistrate reached was that it was the appellant who was the aggressor in removing Ms Nichols from his office, a finding which was confirmed by a viewing of the security video. This, the learned Magistrate said, also negated the appellant's contention that he had come out of his office with fists and hands raised in the air.

6 The learned Magistrate was content to find that Ms Nichols was "provocative in inciting the incident" but he was unpersuaded that the defendant's actions in striking her were excused or justified in law. His reasons were as follows:

"... there was at least a considerable hiatus between the initiating confrontation and the subsequent blow. The blow was delivered at least 30 seconds after the initial confrontation in the office. It did not occur on the sudden and there was clearly time for passions to cool. Indeed, the act premeditated and was deliberate with the defendant taking up a boxing stance prior to the delivery of the blow. It was not sudden or immediate -- it was not a sudden or immediate response to the provocation. The defence of provocation is clearly negatived."

7 The learned Magistrate also pointed out that a defence of self-defence could not be made out, but nothing turns on that.

8 In the course of his reasons the learned Magistrate placed reliance upon the evidence of a Ms McQuillan, who had observed some of what occurred. He found Ms McQuillan to be a credible witness whom he said was able to hear both persons with raised voices in circumstances which led to only one conclusion, namely that the two persons were within the office at the time. This, the learned Magistrate considered, established that the appellant had not remained calm during the course of the exchanges in his office as he contended. The learned Magistrate also found that the evidence of Ms Nichols was a more accurate representation of what occurred than what was contained in a statement she had made to investigating police officers on 18 January 1999. Although his Worship found some inconsistencies between what was said in the statement and what was said in court, he accepted that Ms Nichols had failed to flesh out fully her statement to the police and considered her evidence in court, together with that of Ms McQuillan, to be consistent and acceptable. His Worship made a strong finding that the evidence of Ms Nichols was to be preferred to the evidence of the appellant on the issue of the appellant's state within the office because it was essentially confirmed by the evidence of Ms McQuillan.

9 The appellant contends that two critical findings of the learned Magistrate were demonstrably erroneous. The first is his finding that the appellant was not calm but angry in his office. This, it is said, flies in the face of evidence given by Ms Nichols in the course of her cross-examination, when she was referred to her statement to investigating police and vacillated in her evidence, conceding that perhaps he was not angry, or alternatively, that she did not know that whether or not he was angry. Further, in answer to a question in re-examination, she had said that the appellant had not done anything for her to think that he was angry. In the light of these concessions by Ms Nichols in cross-examination, it is argued that the learned Magistrate had no justification in concluding as positively as he did that the evidence established that the appellant had not remained calm during the course of the exchanges in his office as he contended.

10 In the second place, the appellant criticises the learned Magistrate's conclusion that the evidence of Ms McQuillan was independent testimony to the effect that the appellant was angry in his office. The point made for the appellant is that Ms McQuillan testified that she heard from the kitchen raised voices which caused her to go to the reception area, whereupon she became aware that the appellant and Ms Nichols were in the appellant's office. She said that she saw the appellant and Ms Nichols walk out of the office arguing using "agitated and raised voices" and that the appellant had returned to his office, come back out of the office and then with Ms Nichols, walked out of the building. Close analysis of this evidence indicates that Ms McQuillan witnessed the aftermath of the appellant's assault upon Ms Nichols in the reception area. What counsel for the appellant contends is that the learned Magistrate's error in this regard weakens his conclusions about the credibility of Ms Nichols, and throws into question the finding that his Worship made on the issue of whether or not Ms Nichols had struck the appellant in the eye in his office in the first instance.

11 Counsel for the appellant contends that the only conclusion the learned Magistrate could have reached was that there had been a "catalyst" within the office of the appellant which led to the appellant striking Ms Nichols as he did. The learned Magistrate's refusal to find that the appellant had been struck in the eye in his office is said to sit at odds with the evidence, particularly the fact that a period of only 47 seconds elapsed between the entry of Ms Nichols into the appellant's office and the time of the blow struck in the reception area. In any event, whether or not the learned Magistrate's conclusion in this respect was wrong, counsel for the appellant argues that the conclusion that the defence of provocation was negatived by reason of there being time for the appellant's passion to cool (from whatever it was that occurred within the office) was unrealistic and wrong.

12 Counsel for the respondent contended that the learned Magistrate was at liberty to conclude that Ms Nichols was a convincing and credible witness, notwithstanding any inconsistency between her in-court testimony and a prior statement made to investigating police. Counsel pointed out that there may well be cases in which evidence given by a witness may be regarded as reliable, notwithstanding that an earlier statement had been made inconsistent with that testimony: Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 per Gibbs J at 536. The point is made that the learned Magistrate took into account a number of inconsistencies between the out-of-court statement and the testimony given in court but, nevertheless, accepted the testimony of Ms Nichols under oath as more accurate than what she had previously said. Counsel for the respondent contends that the learned Magistrate was entitled to find that the appellant had not remained calm during the course of the incident in the office because Ms Nichols had made it clear in her testimony that the appellant had levelled abuse at her, had sworn at her and was "certainly getting angry" during the confrontation that occurred within that office. Counsel further relies upon unequivocal testimony from Ms Nichols that she had not struck the appellant in the face at any time, notwithstanding forceful cross-examination on the issue. It must, however, be said that although Ms Nichols had during cross-examination contended on a number of occasions that the appellant was getting angry, her evidence vacillated on the point when she was cross-examined in relation to her prior statement to investigating police.

13 Although counsel for the respondent contended that the evidence of Ms McQuillan was capable of being interpreted as evidence that voices were heard in the appellant's office in the first instance, I am of the view that the only interpretation that can be put upon the evidence of Ms McQuillan is that what she heard and observed related to an incident that had occurred after the blow was struck by the appellant. To the extent that the learned Magistrate relied upon the evidence of Ms McQuillan as supportive of the testimony and credibility of Ms Nichols, I am of the opinion that he was mistaken and erred in law.

14 Counsel for the respondent contended that it was open to the learned Magistrate to conclude that the blow delivered by the appellant to Ms Nichols had occurred at least 30 seconds after the initial confrontation in the office, as the security video revealed that in fact the lapse of time between the entry of Ms Nichols into the office and the striking of the blow was some 47 seconds. It was put that by reason of this delay the learned Magistrate was entitled to find that the blow had not been struck "on the sudden" and "before there was time for (the appellant's) passion to cool" (Criminal Code, s 246).

15 The learned Magistrate in his reasons placed considerable importance upon the security video of events that occurred in the reception area at the hotel on the day in question. I have taken the opportunity of studying the two minutes of the security film sequence, only a portion of which relates to events in the reception area. Because the security film constantly jumps from one area of the hotel to the other, it is impossible to get an uninterrupted sequence of events as they are shown between Ms Nichols and the appellant. From the time Ms Nichols and the appellant emerge from the appellant's office, events move very quickly indeed. They are seen to grapple together and the appellant does "shape up" to Ms Nichols and then strike her. All of this, however, happens very very quickly. As the learned Magistrate himself appreciated, the blow delivered by the appellant was "at least 30 seconds" after the initial confrontation in the office. In point of fact it appears to have been precisely 47 seconds. From the time Ms Nichols and the appellant are observed to come into the reception area (from the appellant's office) until the appellant strikes Ms Nichols, only 21 seconds elapse. During almost the whole of that time the two parties are grappling and the incident is continuous.

16 Both parties to this appeal are agreed on the principles to be applied. The appeal is by way of re-hearing, and the approach to be taken is that set out by Ipp J in Vrisakis v Australian Securities Commission (1993) 9 WAR 395 at 447:

"This is an appeal under the Justices Act and is by way of rehearing O 65A, r 9 read with O 63, r 2 and O 65, r 10). In general this Court is in as good a position as the magistrate to decide on the proper inference to be drawn from facts which are undisputed or which are established by her findings. Respect and weight will be given to the conclusion of the magistrate but this Court, having reached its own conclusion, will not shrink from giving effect to it. Moreover, the question whether the facts found do or do not give rise to the inference that a party failed to exercise a reasonable degree of care and diligence is not one which is to be treated as peculiarly within the province of the magistrate: see Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531."

17 It is also the case that an appellate court is entitled to set aside a finding based on credibility where there has been a glaring improbability about the relevant evidence when looked at in the context of other objective facts: Wing Luck Foods v Lay Choo Lim [1989] WAR 358 at 362. This is what is urged for the appellant in the present case.

18 At the same time, the re-hearing which I am obliged to conduct must be performed in light of the fact that there has been a clash of critical oral testimony between the two important players in relation to the incidents in question, and the learned Magistrate did hold a significant advantage over the appellate court in assessing the witnesses where there was a clash of "oath against oath". In SRA (NSW) v Earthline Constructions [1999] HCA 3; (1993) 73 ALJR 306 it was put this way by Kirby J at 91 - 92:

"... because trials remain public procedures for the resolution of disputes, it is inescapable that, in some cases at least, credibility assessments will be required where there is no documentary, electronic or other incontrovertible evidence to resolve the conflict presented for decision. In such cases it will remain the fact that, try as it might, the appellate court cannot procure from the printed record exactly the same materials on which to base the judicial decision as the trial judge had.

This conclusion may, as I think, be true of a relatively limited class of case: basically those where the decision depends upon resolving a clash of critical oral testimony, oath against oath. But in such cases, because the appellate court cannot, in presently available records, recapture all of the information properly used to assist the trial judge's decision, the old strictures about that judge's advantage remain as relevant today as they were when first written more than a century ago. In such cases, the appellate court's rehearing must be conducted within a constraint which is set by the somewhat more restricted data available to it. This limitation is not confined to Anglo-Australian law. It is recognised in other countries of the common law and doubtless beyond."

19 In the present case there is a complete transcript of the evidence given by the witnesses who testified before the learned Magistrate, and (perhaps more importantly) there is a video film of the critical events as they developed in the reception area of the hotel. This being so, the case cannot be seen as one of the limited cases in which the learned Magistrate enjoyed a particular advantage because it was classically an "oath against oath" case.

20 Counsel for the appellant appreciated at the hearing of the appeal that it would be impossible for me to reach a conclusion that Ms Nichols had in fact struck the appellant within the confines of his office when she first entered it. The learned Magistrate reached a conclusion that this had not occurred, and in doing so relied upon the credibility of Ms Nichols, and the absence of any evidence of injury to the appellant's eye. On the other hand, he took note of the fact that two witnesses saw redness to the appellant's left eye. This, he thought was consistent with the grappling that had taken place.

21 The difficulty, however, is that the learned Magistrate reached the conclusion that it was the appellant who was the aggressor in the removal of Ms Nichols from his office. This conclusion was fortified by the learned Magistrate's viewing of the video. Further, the learned Magistrate was persuaded that the appellant was angry within his office and found that this fact was independently established by the evidence of Ms McQuillan. As I have already pointed out, the learned Magistrate was in error in relation to the assessment of Ms McQuillan's evidence and there is a danger that the erroneous conclusion he reached in that respect influenced his view of events as they were differently testified to by each of the appellant and Ms Nichols. Because the learned Magistrate was in clear error in relation to this aspect of the case, there is a concern about the strong finding he made in relation to credibility of Ms Nichols. Quite simply, it is undermined. It also means that the conclusion reached by the learned Magistrate that there was no blow struck by Ms Nichols in the office is questionable. But further and in any event, it seems to me that there was ample evidence that Ms Nichols was the aggressor in the first place. It was she who stormed into the appellant's office without invitation or authority, and in the events that occurred within view of the security camera, she grappled with the appellant in the short timeframe within which film is available. The learned Magistrate accepted that the events caused the appellant to lose his temper sufficiently to strike Ms Nichols. However, he concluded that because the blow delivered by the appellant was delivered at least 30 seconds after the initial confrontation in the office, it was not something which occurred "on the sudden" and there was (in the learned Magistrate's view) clearly time for "passions to cool". His Worship went on to find that the act of the appellant was premeditated and deliberate with the appellant taking up a boxing stance prior to delivery of the blow. It was not, therefore, "sudden or immediate ... it was not a sudden or immediate response to the provocation".

22 I am afraid that I must totally disagree with the conclusions of the learned Magistrate in relation to the defence of provocation. Here the appellant was clearly deprived by provocation of the power of self-control. Whether that provocation was occasioned by a blow struck to him or by the extremely provocative behaviour of Ms Nichols on the day in question does not, for present purposes, matter. In my view, the events occurring as quickly as they did supported the defence proposition at trial that what the appellant had done was "on the sudden and before there was time for his passion to cool" within the meaning of s 246 of the Criminal Code. It was, in my view, unrealistic for the learned Magistrate to take the view that there was time for the appellant's passion to cool in the altercation, the total period of which lasted no longer than 47 seconds. I therefore find it impossible to see how the learned Magistrate could have found the defence of provocation to have been negatived by the prosecution. In my view, on the whole of the evidence which was before the learned Magistrate, there must have been a reasonable doubt as to the guilt of the appellant. Whilst the learned Magistrate may have generally preferred the evidence of prosecution witnesses, he made an erroneous conclusion in relation to the importance of McQuillan's evidence. Further, the rapidity of the events that occurred from the time of Ms Nichols' entry into the office until the time she was struck, ought to have left him with a reasonable doubt as to the guilt of the appellant. Insofar as the defence of provocation was raised, the learned Magistrate could not, in my view, have been satisfied beyond reasonable doubt that it was negated by the prosecution: see generally Harling (1997) 94 A Crim R 437 per Anderson J at 443.

23 I am therefore of the view that the conviction of the appellant was unsustainable and should be quashed.

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