James v Eyles [2007] TASSC 55

Australian Securities Commission v Schreuder A79/1994; Kain v Glamorgan Spring Bay Council A119/1996; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, applied.

Roberts Ltd v Barker unreported 137/1998; Zaronias v Papaiani [2002] NSWCA 207, distinguished.

Judgment Number: [2007] TASSC 55

1 Following a defended hearing, the applicant moved the court to review his convictions for one count of assault and one count of breaching a family violence order. The alleged basis of the breach was the assault. Proof of the offences depended largely on acceptance of the evidence of the complainant, who was alleged to have been assaulted by the applicant, and rejection of his evidence. There were no other witnesses who could give evidence about the incident.

2 As amended, there are nine grounds in the notice to review. Grounds 6 to 9 are inappropriate for a motion to review under the Justices Act 1959, PtXI. Ground 6 asserts that the learned magistrate erred in accepting the evidence of the complainant, who was alleged to have been assaulted by the applicant, and rejecting the evidence of the applicant. Ground 7 asserts that the learned magistrate erred by failing to give proper weight to discrepancies in the evidence of the complainant. Ground 8 asserts that the learned magistrate gave insufficient weight to the delay by the complainant in complaining about the alleged assault and to her explanation for the delay. Ground 9 asserts that the conviction, that is to say the finding that the complaint was proved, was against the weight of the evidence. While they might all be grounds appropriate for an appeal by way of rehearing, that is not the nature of a motion to review. In the circumstances of this case, subject to what I will say about ground 5, if the complainant's evidence of what was done by the applicant was accepted beyond reasonable doubt, the only way in which the finding that the complaint was proved could be set aside upon a consideration of the evidence alone, was that no reasonable magistrate, properly instructed as to the law, could have made that finding. Taylor v Amour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 251; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117. I note that grounds 6 to 9 were not maintained by the applicant at the hearing.

3 Ground 5 asserts in substance that the finding that the offences were proved was unsafe and unsatisfactory. In Kelly v O'Sullivan [1995] TASSC 72; (1995) 4 Tas R 446, the Full Court accepted that unsafe or unsatisfactory was a valid ground for review under the Justices Act of a finding that a complaint was proved. Two members of the court would have limited the availability of the ground and would not have permitted it to be applied in the same way as the Court of Criminal Appeal might review a verdict on an appeal under the Criminal Code. However, in an appropriate case a Full Court may wish to review the decision in the light of the refusal, on 24 May 2007, of an application for special leave to appeal from a decision of the Full Court in Hadju v Brown [2007] HCA Trans 245. Hayne J said:

"The relevant question presented by the applicant's notice to review under the Justices Act was whether there was an error or mistake of fact. This Court's decision in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 was directed to a different question of whether, in the terms found in the common form criminal appeal legislation, there has been, on any ground, a miscarriage of justice. Although what is said in M v The Queen may provide some assistance in deciding whether a court of summary jurisdiction has made an error or mistake of fact, the ultimate question is presented by the relevant statutory provision, not a 'common law test'."

Ground 5 was not maintained by the applicant. It could not have succeeded, in any event.

4 Grounds 1 to 4 were maintained. I will deal with grounds 1 and 3 together. They are:

"1 That the Learned Magistrate erred in law in failing to supply any or any sufficient reasons for accepting beyond reasonable doubt the evidence of the complainant, Andrea James."

"3 That the Learned Magistrate erred in law in failing to supply any or any sufficient reasons for rejecting the evidence of the defendant beyond reasonable doubt if he did so."

5 A determination of the grounds requires consideration of the evidence and the reasons of the learned magistrate.

6 It was common ground that the applicant and the complainant were married but separated and they had a strained relationship. Family Court proceedings between them were current. Their two children, Hugo, aged 4, and Eleni, aged 2, lived with the complainant. The Family Court had ordered that the applicant could have the children for three nights at a time and that the complainant should deliver the children into his possession in a car park at Kingston. Early in the afternoon of 2 June 2006, the Family Court refused an application by the applicant to postpone a trial that was scheduled for later that month. Later in the afternoon they met in the car park so that the complainant could deliver the children to him in accordance with the Family Court order. She arrived there on foot with the two children. She had a dog on a lead, perhaps two dogs.

7 The complainant's evidence-in-chief included the following. She paused and kissed the children at the edge of the car park and they then went to their father. He put Eleni into a child restraint seat in the rear passenger side of his car and left the door open. He then proceeded to put Hugo into the rear seat on the driver's side. The complainant advanced to within two or three feet of the open door where Eleni was sitting and crouched, that is to say, squatted on her haunches, talking to Eleni. The applicant then walked round the rear of the vehicle to where the complainant was. She said "it's time for mummy to go" and at about that moment, he walked behind her as she was in the course of transferring from a squatting to a standing position. As she did so, she had her hands in the shallow pockets of her jacket to ensure that keys and a mobile telephone did not fall out, as the telephone had done earlier. When she was halfway between squatting and standing, she heard the applicant say, "time to go" and he pushed her in the back with great violence. She did not have time to remove her hands from her pockets to cushion her fall and she fell forward with her face hitting the rough surface of the car park. Resulting injuries included two black eyes, a grazed cheek, a chipped nasal bone, two chipped teeth, an abrasion outside her top lip and a nasty cut inside it, and concussion.

8 In cross-examination, she agreed that she spoke to police three months later, in September 2006, and upon being given it to read, she agreed that her signed statement to the police said that the applicant had put Hugo into the car first. She also agreed, upon reading it, that her statement said that immediately before she was pushed by the applicant, Eleni was trying to climb into the car and that she, the complainant, "knelt down facing the car and was just there in case she fell". Those differences between her evidence and her statement were relied on by the applicant's counsel when addressing submissions to the learned magistrate following the conclusion of the evidence.

9 There were also some differences between the complainant's evidence and that of her friend, Mr Hills. Her evidence was that he telephoned her that evening to make arrangements to have dinner together and she told him that she was unable to go and that things had not gone well at the contact changeover. In cross-examination she said that she told Mr Hills that everything had gone pear-shaped. It was put to her that she had told Mr Hills that she was too unwell to go out for dinner and that she did not tell him that the applicant had pushed her. She said that she did not think she used the word "unwell" and that although she had told him she had been pushed over, she did not think Mr Hill understood that. It was Mr Hills' evidence that she told him that she had an incident and was not in a condition to come out. When shown a statement he made to the police six months after the incident, he agreed that he said in it that she said she was unwell.

10 The complainant went to Mr Hills' premises the next day and he photographed the injuries to her face. Her evidence-in-chief was that she told him that the applicant had pushed her and that her face had hit the ground very hard. In cross-examination she said that she did not tell him simply that she had fallen over. Mr Hills' evidence was that he could not remember exactly what she had told him, but he did not think it was true that she did not tell him that the applicant had pushed her. However, he agreed, when shown his statement to the police, that he had said that she told him that she had fallen over.

11 The evidence of the applicant was that when the complainant arrived at the car park with the two children and two dogs, Hugo ran to him and he then placed the boy in the driver's side rear seat at a point in time when the complainant was about 10 feet from the car with Eleni. He said that he then walked to the passenger side, picked up Eleni and placed her in the rear passenger side and buckled her in. He then gave a strange piece of evidence that after he did that he saw the complainant, about 10 feet away, facing away from the car in a squatting position "with her bum in the air". He said that he did not really see her on the ground, but saw her with her backside in the air, half standing up. Her dogs were attached to her hand by leads. He agreed that he would have said "time to go" to the children.

12 In cross-examination, the applicant said that after strapping Eleni in he closed the door, walked round the car, hopped in and drove off. It was when he turned to leave the rear door and close it that he saw the complainant facing away from him with her bum in the air, in a squatting position, he said. Asked to explain what he meant by his evidence that her bum was in the air, he said that he guessed that she had toppled over, but he had not seen that. He denied touching the complainant, or going within 10 feet of her.

13 In a closing address, counsel for the applicant submitted to the learned magistrate that the complainant had given two different versions, one to the magistrate and another to police, about the order in which the applicant had put the children into the car. He also referred to the conflict in the evidence concerning what the complainant told Mr Hills that evening and next day. He submitted that the version of the complainant was uncorroborated and that there were such inconsistencies in her versions of the events that her evidence should not be accepted and that it would be unsafe to accept it. Counsel for the applicant also referred the learned magistrate to the time that passed before the complainant first reported the matter to the police and claimed that it was "very significant that there's a very lengthy delay".

14 There is no need to refer to the prosecutor's submissions. When they concluded, the learned magistrate immediately stated his findings and conclusions that the charges had been proved. As is often the case with extemporaneous reasons, they were not well expressed. In the course of them, the learned magistrate correctly stated that the question for him was whether he was satisfied beyond reasonable doubt that the applicant assaulted the complainant as alleged. He mentioned the emotional and other difficult experiences occurring between the two people at the relevant time. He then commented that merely because there was some discrepancy in the evidence of a witness, did not mean that the witness was telling falsehoods. The reasons continued:

"I find that Eleni was in the vehicle and had been placed there by Mr James. It appears to have come out, although it wasn't clearly searched upon in the evidence of Mrs James, it would appear as though both went to the vehicle and I accept that Eleni was in the vehicle first; that is in her car seat, and that the older boy, Hugo, was taken around to be in the seat behind his father. I find that Eleni in that seat and that Eleni was effectively there waiting for Hugo to be in the vehicle, when Mrs James was at the door. And she was only reasonably close to that door but not close enough to touch it, for the - some - whatever reason there was. Clearly, there was some reason for that. She was there, and for whatever reason it was, it may have been she may have been emotional, or whatever, she was squatting down talking to Eleni - I accept that. I accept that Hugo was put into the vehicle by his father and that the father then came around to where the rear passenger door was still open with Eleni in the seat and Mrs James in that position that described earlier. I am satisfied that she was crouching down. I'm satisfied for whatever reason, whether it was impatience, whether it was the partial success that day, or whether he just wished to get the children home, he did in fact push her. I find that he did that and that he was therefore assaulting her.

As I said before, there really is only four scenarios in relation to this matter. One that nothing happened at all, and I find clearly it did. And then there was a question of whether she caused the injury herself by, as I - not elegantly called it this morning, by diving. Or alternatively, secondly that she slipped or stumbled, or, as was raised by the defence she may have been caused to stumble by a dog. Or alternatively, she was pushed. I am satisfied beyond reasonable doubt that she was pushed. I don't accept the defendant's evidence. The defendant, I believe, isn't trying to deny that it may well, so far as he was concerned, that she fell over in the car park, but she was only some ten feet away, less than three metres away, when that happened and when he turned around and he says he turned around and saw her with her bum in the air. I make no observation for this, although it could well be made that there was no suggestion of him going to see whether she was all right. But I gather the problem between the parties weren't at that stage where they were prepared to do that. But I find in fact, he in fact did push her.

Then it's interesting what happened then, I do accept that she didn't complain in relation to it. As I've already expressed, there can be a number of reasons why she didn't complain - plainly it didn't occur but I do find it occurred. But it is quite consistent with a victim in such circumstances not complaining for all sorts of reasons, either ever or at some later stage. There's evidence before me that Mrs James had informed the police that she hadn't reported it earlier because she was fearful of some financial repercussions. But that's by the by, the problem was that - and the matter is that she didn't report it, and of course, I'm asked to make some inference in relation to it, and I don't make any particular inference in relation to it; that is as to going to her veracity.

I find that she did speak with Mr Hills, Mr Hills invited her out, I find at that stage she had suffered the injury. I don't believe, and I don't find that she made up the story - I don't believe that she had this injury caused somewhere, as I mentioned earlier about walking into a door, I don't find that at all. I find that in fact she suffered this injury in the car park, and she suffered the injury in the car park as a result of being pushed over. The following day she spoke to Mr Hills again and there had been no particular conversation precisely as to how it occurred, but the interesting thing is there were photographs taken.

Now whatever inference can be made from that - the defence may ask for the inference to be taken that the photographs were taken to bolster up some argument at some later stage - well it was kept up her sleeve if it was for almost three months. The bottom line is that clearly the photographs were taken and they were taken to establish that there was some injuries caused, and I find that the injuries were caused by Mr James in the way that I've found. And I find the offence proved."

15 It has been necessary to quote all of that for the purpose of analysing what was said by the learned magistrate. The breaking of it into paragraphs was done by the transcriber and not by the magistrate.

16 His Honour stated his findings in the first quoted paragraph without accompanying reasons. In essence, those findings were that what happened was in accordance with the evidence of the complainant.

17 In the second paragraph, his Honour commenced by referring to four possible scenarios. The first was that nothing happened at all. His Honour found that something clearly did happen. Reasons did not need to be given for that conclusion. The injuries suffered by the complainant made that clear; the complainant said that her face hit the ground and the applicant accepted in his evidence that she may have "toppled over". The second possible scenario was that she deliberately injured herself by "diving". That was far fetched as a possibility and was not one that was suggested to the complainant when she was cross-examined or advanced by the applicant's counsel. Reasons for rejecting it were not required in the circumstances. The third possible scenario, referred to by the learned magistrate as the second, was an accidental falling, perhaps by slipping, losing balance or being pulled over by a dog on its lead. The only reason to be found in the learned magistrate's reasons for rejecting it, or indeed for rejecting all of the first three possible scenarios, is that he accepted the complainant's evidence that the applicant pushed her and did not accept the applicant's evidence denying that. The fourth and final possible scenario was that as she said in evidence, and as the learned magistrate accepted, the complainant was pushed by the applicant.

18 To the end of the second of the quoted paragraphs, the learned magistrate had not purported to give a reason for accepting the complainant's evidence and rejecting the applicant's evidence. His Honour eschewed any reliance on the fact that the applicant did not go to the complainant's assistance after she suffered her injuries.

19 The third paragraph dealt with the complainant's delay in reporting the assault to police. The learned magistrate explained that it did not affect her credit and referred to evidence in the form of a statutory declaration by Constable Eyles, in which it was said that the complainant had advised that she had not reported the incident earlier than 30 August 2006 because she was fearful of financial repercussions from the offender, as they were going to court shortly after the incident in an attempt to settle property disputes. The submission by the applicant's counsel concerning the delay was unmeritorious. In the course of the examination-in-chief of the complainant, counsel successfully objected to the prosecutor asking her to explain why it had taken until September to report the matter to police, upon the basis that a question going only to credit was in breach of the Evidence Act 2001, s102. She was asked nothing about her reasons for the delay in cross-examination. In the circumstances, the applicant's counsel made sure that no evidence about it was given by her. As a consequence, there was no justification for making a finding adverse to the complainant. The learned magistrate's reasons for not using the matter against her were appropriate and understandable. By the end of the third of the quoted paragraphs, the learned magistrate had rejected one of the submissions of the applicant's counsel concerning the complainant's credit and had given adequate reasons for doing so.

20 It is appropriate to deal with the fourth and fifth paragraphs together. In them, the learned magistrate explained, although not clearly, that the evidence of the complainant and Mr Hills of their conversation on the evening of the alleged assaults and their meeting on the following day, when Mr Hills took photographs of her injuries, supported the complainant's credit and the prosecution case that she had suffered her injuries as a result of being assaulted.

21 It was not necessary that the learned magistrate make a finding concerning the order in which the children were placed in the car. The applicant's counsel relied on differences between what the complainant told police and what she said in evidence about that matter. The learned magistrate dealt with it by saying that merely because there was some discrepancy did not mean that a witness was telling falsehoods. Concerning the conflict between the evidence of the complainant and the evidence of Mr Hills about what was said between them, another matter relied on by the applicant's counsel, the learned magistrate made it clear that their evidence established that the complainant had suffered the injuries and that photographs were taken by Mr Hills to prove it. By saying what he did, the learned magistrate showed that he did not regard the differences in their evidence as persuasive in favour of the applicant.

22 I conclude that the learned magistrate addressed sufficiently the submissions that had been advanced by the applicant's counsel, although in poorly expressed terms.

23 It was submitted to this Court by counsel for the applicant that the prosecution case was a circumstantial one, because although the complainant's evidence was of being pushed in the back, she did not claim to have seen the applicant in fact push her. Accordingly, it was submitted, the learned magistrate had to be satisfied that there was no rational hypothesis open on the evidence other than that the applicant pushed her before he could be found guilty. The submission was an unrealistic and inappropriate one. It was not a circumstantial evidence case only. If the complainant's direct evidence that she was pushed was accepted, the only conclusion open was that the applicant was responsible. No other rational hypothesis could possibly have been open.

24 The strongest argument advanced by the applicant's counsel in his attack on the reasons of the learned magistrate, relied on the fact that no reason was given for rejecting the evidence of the applicant and his denial that he pushed the complainant, other than is to be found in his Honour's conclusion that the applicant did push her. Nothing about the applicant's demeanour in the witness box, or the content of or manner in which he gave his evidence, was identified by the learned magistrate as a reason for rejecting his denial of pushing her. In the second of the quoted paragraphs, the learned magistrate simply said that he did not accept the applicant's evidence.

25 Counsel for the applicant relied on a statement of Evans J in a workers compensation case of Roberts Ltd v Barker unreported 137/1998 at 12 that the Commissioner, from whose decision the appeal in that case was brought, had "at no point confronted and dealt with the general credibility of the worker". That was not a statement of law but a statement of fact. Rejection of a witness' evidence will not be based necessarily on the demeanour of the witness or the content of, or manner in which, the evidence is given by the witness. The evidence of a witness may be rejected for no reason other than that other evidence, that is in conflict with it, is more compelling and accepted. There is little in Roberts Ltd v Barker that assists the applicant.

26 The duty of a magistrate to provide reasons was stated by Underwood J in Australian Securities Commission v Schreuder A79/1994 at 5 - 6 in terms that a magistrate has a judicial duty to:

1 make findings with respect to the essential facts;

2 where the evidence with respect to those facts was in dispute or unclear, state a basis for making such findings;

3 where appropriate, state what inferences the magistrate drew from the facts found and where necessary, the basis for drawing such inferences;

4 expose the reasoning process which resulted in the orders to the scrutiny of the parties and any reviewing court.

27 At 11, Underwood J said: "There is a clear obligation upon a judicial officer to deal with relevant submissions made by parties to litigation. If this is not done, the parties are denied their proper rights of appeal and justice does not appear to have been done." I agree with two reservations. The first is that the submissions must be material and not merely relevant. The duty to give reasons does not impose an obligation to deal with every argument or to discuss all possible permutations of fact or law to which the magistrate could have adverted. Kain v Glamorgan Spring Bay Council A19/1996 at 13. The second is that a failure to deal expressly with such a submission may not breach the requirement to state reasons. So long as the reason for rejecting a material submission can be found upon a consideration of all of the reasons for the decision, that will be sufficient. Further, a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process is not required. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.

28 Counsel for the respondent relied upon the following statement of Meagher JA, with whom the other members of the Court of Appeal agreed, in Zaronias v Papaiani [2002] NSWCA 207 at par7: "Once a judge says 'This is the evidence I accept', the necessity for formulating reasons has past - unless, perhaps, the evidence is absurd or self-contradictory. A judge is certainly not under any obligation to sift through all the evidence before him and explain at length why he rejects each item which is conceivably inconsistent with his decision." However, that case should be understood in the context of the evidence presented in it and not as an authority for that proposition in all cases, regardless of the evidence. Consistent with his duty to the Court, counsel for the respondent drew my attention to Sutherland Shire Council v Dietz [2004] NSWCA 53 in which Zaronias was distinguished as a case in which it did not matter which of two pieces of conflicting evidence was accepted.

29 In Soulemezis v Dudley (Holdings) Pty Ltd (supra) at 280, McHugh JA said that "where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believes one witness in preference to another; it is not necessary 'for him to go further and say, for example, that the reason was based on demeanour': Connell v Auckland City Council [1977] 1 NZLR 630 at 632 - 633 per Chilwell J." That statement, and the statement cited above of Meagher JA in Zaronias, were made in the context of civil proceedings in which the standard of proof was the balance of probabilities. Believing one witness in preference to another may well be all that is necessary for the determination of facts on the balance of probabilities. But when the standard is proof beyond reasonable doubt the mere preferring of one witness against another is insufficient to satisfy that standard. There must be something stronger than mere preference.

30 In summary, the stated reasons of the learned magistrate for a finding that the complaint was proved were as follows. The complainant certainly suffered injuries to her face. It was her evidence that she suffered them when her face hit the ground upon being pushed over by the applicant. There was considerable antipathy between them at the time. (That is relevant to motive.) The applicant accepted that she may well have fallen over in the car park when he was present. Her claim that the injuries were caused by the applicant pushing her over, and her credibility, were supported by the evidence of Mr Hills (which was not challenged by the applicant) that the complainant had him take photographs of her injuries the following day (so as to have additional evidence of them). The learned magistrate did not believe that she had made up a story about the cause of her injuries. The learned magistrate did not accept the applicant's evidence in denial of the principal allegation. (As no other reason for not accepting his evidence was advanced, the inference to be drawn is that the learned magistrate rejected his evidence because of the matters to which I have just referred.) The learned magistrate explained why he rejected the submissions of the applicant's counsel that the complainant's credit was adversely affected by her delay in reporting the assault to police, possible conflicts between her evidence and the evidence of Mr Hills and inconsistencies between what she told the police and what she said in evidence about the order in which the children were placed in the car.

31 Not explained by the learned magistrate was his reason for finding that the order in which the children were placed in the car was in accordance with the evidence of the complainant and not in accordance with what she said to the police and what the applicant also said in his evidence. However, it was not a fact that was essential for the prosecution case to succeed. Although it would have been preferable that the learned magistrate explain why he made that finding, failure to do so did not amount to a breach of the duty to give reasons for finding that the assault occurred.

32 Ground 2 is that:

"The Learned Magistrate erred in law in concluding that it was sufficient if he 'did not accept the defendant's evidence' for him to find the charges proved beyond reasonable doubt rather than directing himself that he must reject the defendant's evidence beyond reasonable doubt before he could find the charges proved."

The simple answer to the ground is that although the learned magistrate expressly did not accept the applicant's evidence, he did not say that he concluded from it that the charges had been proved beyond reasonable doubt. It may be inferred that his Honour rejected the applicant's denial beyond reasonable doubt because other evidence proved beyond reasonable doubt that the assault was committed. It was unnecessary for the learned magistrate to give to himself, as part of his reasons, a direction that might have been appropriate for a jury if the hearing was conducted in a criminal court.

33 Ground 4 is that:

"The Learned Magistrate erred in law in failing to treat the case as circumstantial and failing to direct himself that he must reject all reasonable hypothesis beyond reasonable doubt including that the complainant was pushed by a dog or fell over."

At the hearing before this Court the applicant's counsel did not maintain the argument that it was a circumstantial evidence case which, if it had been before a criminal jury, would have required a circumstantial evidence direction in accordance with Peacock v R [1911] HCA 66; (1911) 13 CLR 619, Barca v R [1975] HCA 42; (1975) 133 CLR 82 and Shepherd v R (No 5) [1990] HCA 56; (1990) 170 CLR 573. Nevertheless, counsel maintained that having stated four possible scenarios, it was incumbent on the learned magistrate to give sufficient reasons for rejecting three of them, viz, that nothing happened, that the complainant intentionally fell to the ground or that she was pulled over by a dog or otherwise fell over accidentally. I do not agree. I have already explained why reasons for rejecting the first two were not necessary and that sufficient reason for rejecting all of them was that the learned magistrate was satisfied beyond reasonable doubt that the complainant was pushed by the applicant, which was what she maintained in her evidence.

34 None of the grounds of the motion to review have succeeded. In conclusion, I comment that if this had been an appeal by way of rehearing, there may have been far more substance in the applicant's reliance at the hearing before this Court on the fact that the applicant's evidence concerning the order in which the children were placed in the car was supported by what the complainant told the police. It suggested that the complainant's evidence to the contrary may have been erroneous and that may have raised a doubt concerning the complainant's credibility. But a motion to review under the Justices Act is not an appeal by way of rehearing. There was evidence that justified a finding that the assault was committed by the applicant. On balance I have concluded that the learned magistrate gave sufficient reasons for making that finding, although they were poorly expressed and could well have been more comprehensive.

35 The motion to review will be dismissed.