Jones v Bonde [2022] TASSC 19

Phillips v Arnold [2009] TASSC 43, 19 Tas R 21; Robinson v Chatters [2010] TASSC 66; Jotheeswaran v Barnes [2019] TASSC 42, applied.

Judgment Number: [2022] TASSC 19

1 The applicant, Brereton Jones, was found guilty by a magistrate, Ms S Cure, of aggravated assault. This motion challenges the conviction on two grounds. One ground asserts that the magistrate erred by failing to give adequate reasons. The other ground alleges that no magistrate acting reasonably could have been satisfied beyond reasonable doubt of Mr Jones's guilt. A third ground challenging the sentence is not pursued.

2 The respondent concedes that the learned magistrate's reasons for finding the charge proved were not adequate and that her Honour thereby erred in law. For the following reasons the concession is properly made. The agreed position of the parties is that before considering the other ground, or making an order resolving the motion to review under the Justice Act 1959, s 110(2), the matter should be remitted to the magistrate with a direction under s 110(2A) that her Honour furnish the Court with further and better reasons.

3 The Firearms Act 1996, s 115, provides that a person is guilty of the crime of aggravated assault under the Criminal Code, s 183, if, during the course of an assault, the person uses, threatens to use or was carrying a firearm. As originally particularised, the charge against Mr Jones alleged that, on 20 July 2021, he assaulted Emily Pearce "by pointing a firearm at her and possessing the firearm while striking her". The hearing before the learned magistrate commenced on 17 November 2021. It continued on 26 November 2021. Following completion of the evidence the learned magistrate retired for a short time and then proceeded to decision. She delivered oral reasons for finding Mr Jones guilty. In the course of her reasons a matter arose as to the form of the complaint. Her Honour expressed concern about what she perceived as the "duplicitous" nature of the charge, in that it referred to both the act of pointing the firearm and a separate act of striking. Following an exchange with the prosecutor and counsel for Mr Jones, the hearing was further adjourned. On resumption on 7 December 2021, after hearing further argument, the magistrate amended the particulars of the charge so that it read that Mr Jones had assaulted Ms Pearce by "pointing a firearm at her and saying where are my fucking keys".

4 A finding that Mr Jones was guilty of aggravated assault, as described in the amended particulars, required satisfaction beyond reasonable doubt on the part of the magistrate that Mr Jones threatened by gesture to apply force to the person of Ms Pearce, that Mr Jones had, or caused Ms Pearce to believe on reasonable grounds that he had, the present ability to apply such force, and at the time of the threat he used, threatened to use or was carrying a firearm.

5 Ms Pearce gave evidence to the following effect. At about 5pm on 20 July 2021 she was at home when Mr Jones arrived in his car. She had previously been in a relationship with Mr Jones and he was the father of her 5 year old son, who was also present in the home. Ms Pearce had been in contact with Mr Jones that day inviting Mr Jones to visit his son, but she was not then expecting him to arrive when he did. Mr Jones brought with him a sawn-off shotgun, a pistol and some alcohol. They both began drinking. Sometime later, after the child had gone to bed, Mr Jones began to smoke suboxone. He became intoxicated and started to vomit. Ms Pearce decided to hide his car keys so he could not drive. Ms Pearce told the magistrate that, after a while, Mr Jones began to look for the keys but, when he could not find them, he became angry and began hitting her. Because she was "pretty drunk", she could not remember where she had hidden the keys, but she offered to help him search. However he picked up the gun, pointed it at her from about a metre away and said "Where the fuck are my keys, you ... slut." She said that when he did that she felt "intimidated, scared". Throughout the evening, after the violence began, Mr Jones kept hitting her, mainly on her face and around her head. She thought that on one occasion when he struck her eye she became "unconscious for a little while", and suggested she blacked out more than once. Eventually Mr Jones found the keys and left, but by that time it was after 4am. Ms Pearce caught a taxi to an aunt's house in Launceston, and on the following day she went on the bus to St Helens to be with a different aunt. While in St Helens she spoke to the police.

6 The prosecution tendered five photographs which Ms Pearce took of Mr Jones during the course of the evening of 20 July. The photos depict Mr Jones posing with the sawn-off shotgun and pistol, with wads of $50 and $100 notes stuffed into the waist of his jeans.

7 The prosecution also tendered three photographs which the evidence established were taken at the St Helens police station on 22 July 2021. Two of the photographs are of Mr Pearce's face and depict a very swollen and bruised left eye, with bright redness on the white of the left eye consistent with a haemorrhage. The third photograph shows, she said, scratches. Ms Pearce's evidence was that the injuries were caused by being struck by Mr Jones. She gave evidence that she had bruises all over her legs, her back and her vagina. She said Mr Jones kneed her vagina.

8 It was put to Ms Pearce in cross-examination that when Mr Jones was passed out on the couch she attempted to have sexual intercourse with him, and that when he woke he punched her and pushed her away. It was suggested to her that "the only physical thing that Mr Jones did to you was a punch in the face and push you away from him ...". It was suggested to her that she lied about him pointing the shotgun at her. She rejected all of those propositions. However she accepted that when she went to the hospital in St Helens she did not report injuries to her back, legs or vagina. She initially denied having sent a number of messages to Mr Jones the following morning threatening to go to the police unless he gave her money. However, when presented with a document, she admitted having sent the messages, that her initial denial was a lie, but said that Mr Jones had been threatening to burn her house down if she went to the police.

9 Constable Gerard Balnaves gave evidence for the prosecution. He was stationed at St Helens and spoke to Ms Pearce on 22 July 2021. His evidence was that when he first spoke to her on the phone she told him that she had been assaulted by her ex-boyfriend. Later, at the police station, she told him that Mr Jones had assaulted her throughout the evening and "produced a firearm as well". She told him that "she'd been punched a couple of times in the face, grabbed around the throat and that she'd also been struck in the groin area". He observed a bruise to the underside of her left eye, red marks on the inside of her eye and a faint mark on her throat. He described her as being "quite shaken" and that she "seemed defeated." He encouraged her to go to the hospital for a full examination.

10 Ms Pearce attended the St Helens hospital on 22 July 2021. The hospital records were in evidence. They recorded that she presented at 5.50pm complaining of having been assaulted on 20 July 2021, having been struck by her partner "with a closed fist". She reported no headache or blurred vision. Her left eye was red and bruised, she complained of limited movement and tenderness in her lower jaw, and some bruising in that area was noted. She reported tenderness to her scalp but no lacerations or bruising were observed. Bruising was noted on her right upper thigh and pubic bone. She denied any other injuries.

11 Mr Jones gave evidence in his defence. He told the magistrate that he had been invited to Ms Pearce's house to take her some money and see his son. He said that she asked him to bring alcohol as well. He agreed that he brought with him the sawn-off shotgun and the hand gun shown in the photos taken by Ms Pearce on that evening. He said that he originally intended to leave the firearms in the car but that Ms Pearce asked that he bring them inside. He accepted that the photos were of him, were taken on that night and depict him with the firearms and money he brought to the house. He agreed that they were both drinking during the evening. He said that Ms Pearce put the shotgun in the laundry and he denied having pointed it at her. His evidence was that he passed out on the couch at about 11pm and "woke up to Emily on top of me having sex with me, and then I just remember waking up, being angry and feeling embarrassed, and that's when I struck her". He admitted hitting her with a "closed fist to the side of the face and pushed her off me". He then looked for his car keys, intending to leave, but it was not until about 2.30am that he found them. He said that he collected the firearms and then drove to the home of his current partner.

12 When cross-examined he denied having had suboxone "that night". He admitted having consumed alcohol but he said that he had four cans. He denied having struck Ms Pearce any more than once. He denied having put his hands around her neck or kneeing her in the vagina, and denied the suggestion that he had made up a story about being "sexually assaulted".

13 The law about the duty of a judge and magistrate to give reasons was reviewed and summarised by Crawford CJ in Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, by Wood J in Robinson v Chatters [2010] TASSC 66 at [73]- [77], and more recently by Blow CJ in Jotheeswaran v Barnes [2019] TASSC 42. In Jotheeswaran v Barnes, Blow CJ said at [14]:

"It is well established that, with rare exceptions, judges and magistrates have a duty to give adequate reasons for their decisions, and a failure to give adequate reasons amounts to an error of law: Pettit v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Phillips v Arnold [2009] TASSC 43, 19 Tas R 21. When a magistrate finds a charge proved beyond reasonable doubt on the basis that the evidence of one witness is preferred to that of another witness, the duty to give adequate reasons requires the magistrate to explain why he or she has preferred the evidence of a particular witness: Phillips v Arnold at [53]-[67]."

14 In Robinson v Chatters, Wood J noted the obligation of a judicial officer to provide reasons for a decision which expose the pathway of reasoning which has led to the result. The rationale of the rule requiring the giving of reasons was stated by Crawford CJ, with whom the other members of the Full Court agreed, in Phillips v Arnold (above) at [64]:

"The reasons why the law requires adequate reasons for decisions have been stated many times. They include that the parties should be given an understanding as to why the case was decided in the way it was. In particular, the losing party should be so informed. The need for open justice is regarded as paramount. Another reason arises out of the fact that Parliament has given a right of appeal or review of a decision. Without adequate reasons, an appeal cannot be laid properly and sufficiently before the appellate court and the decision cannot be examined adequately."

15 In a case where there is conflicting evidence, the duty ordinarily requires the magistrate or judge to explain why one body of evidence is accepted in preference to another: Jotheeswaran v Barnes (above) at [18].

16 At the conclusion of the evidence the learned magistrate retired for a short period. No opportunity was permitted for closing addresses by the prosecutor or counsel for Mr Jones, although neither party was entitled to make such an address without leave: Justices Rules 2003, r 35(1)(f). It is to be recalled that, when her Honour retired to consider her decision, no amendment to the particulars of the complaint had been made. Thus, her Honour was considering whether the prosecution had proved beyond reasonable doubt both the allegation of aggravated assault by threatening gesture, and an aggravated assault by the application of force. Mr Jones admitted assaulting Ms Pearce by punching and pushing her, but it was tolerably clear that his case was that the force he admitted applying to her was justified by self-defence in response to the sexual assault he claimed she had committed, and that no firearm was involved.

17 On resumption of the proceedings the magistrate began to give oral reasons for decision. Her Honour first stated that:

"I don't have a great deal of material in this case other than two people giving sworn evidence. It would appear to me that the only corroborating material is the photographs and medical reports relating to her and, of course, there's his admission that he punched her, although he provides an explanation that I don't accept."

18 Her Honour then addressed, in general terms, the accounts given by Ms Pearce and Mr Jones. She acknowledged that the accounts were competing and, in some respects at least, irreconcilable. Her Honour referred to Ms Pearce's evidence that Mr Jones had pointed the shotgun at her and said "Where are my fucking keys slut." Her Honour continued:

"... I accept that he hit her and I accept that it was more likely in accordance with her version of events that his, but there's a fair bit of grey around what occurred that night. The common ground is that he did - he was looking for his keys. There were guns. There were rather bizarre posing photographs taken. I'm not quite sure how they're relevant other than to show the flavour of what had been happening that night."

19 After commenting on the absence of evidence that Mr Jones was pointing a firearm at Ms Pearce when he struck her, the magistrate continued:

"I'm not satisfied that he pointed a firearm at her when he struck her, and it should be 'by punching her'. I'm going to amend it to common assault by punching her. So it's a common assault."

"I am satisfied that he pointed a firearm at her and asked where his fucking keys were and I'm satisfied that he struck her. So it can remain an aggravated assault... but they're two separate acts."

21 What then followed was a protracted discussion with counsel about whether, within a single count of aggravated assault, her Honour could find Mr Jones guilty of an aggravated assault by threatening gesture but also common assault by striking (without using or holding a firearm). In the course of that discussion her Honour made other relevant remarks which may be regarded as findings:

• "I don't necessarily accept the whole of her account, but I accept enough of it for those two parts of it to get it over the line, but can they both fit within an aggravated assault?"
• "I don't discount the fact that she made an unwanted advance to him. I don't discount that, but I do find that he pointed the firearm at her and scared her, and the second part is that I find that he punched her at some point as separate acts, not together ...";
• in answer to a submission that Mr Jones had given a "credible" account in which self-defence would be open, that "I have turned my mind to that and I've rejected that"; and
• "I'm satisfied beyond reasonable doubt that he punched her and he probably punched her more than once, but I can't be satisfied beyond reasonable doubt. It's likely - I accepted her evidence. I read out the part of it that I accepted. Let's go away and work out what I'm going to do ...".

22 The proceedings were then adjourned for about 10 days. When the proceedings resumed there was a further discussion with counsel, but what ultimately ensued was that the complaint was amended as earlier described to remove any reference to assault by application of force. Any issue of self-defence thereby evaporated. Her Honour's finding was that the applicant was guilty of aggravated assault by pointing the shotgun at Ms Pearce.

23 The prosecution case that Mr Jones was guilty of the charge, so particularised, depended heavily on the evidence of Ms Pearce. Her Honour could not have found Mr Jones guilty unless satisfied beyond reasonable doubt of the truth of her account in that respect. Such a finding necessarily involved excluding, as a reasonable possibility, that Mr Jones's denial was true. Her Honour was entitled to look at all of the evidence which tended to support Ms Pearce's credibility and which tended to undermine Mr Jones's credibility.

24 There could be little doubt that, if it were proved that Mr Jones pointed a sawn-off shotgun at Ms Pearce from close range as she described, that the elements of aggravated assault were established. However, with respect to her Honour, at no stage did she give any reasons which explained why it was that she accepted Ms Pearce's evidence that Mr Jones pointed the firearm at her, or why she rejected Mr Jones's denial that he did so. Most of what her Honour said was directed to the allegation of application of force, which ultimately was removed from the complaint. Even in that respect the reasons contain little to suggest why it was that her Honour accepted one version in favour of the other. The absence of that sufficient explanation is highlighted when it is apparent from the comments that the magistrate did make that she did not accept some aspects of Ms Pearce's evidence. I think that her Honour's error is likely explained by her proper concern to ensure that the form of complaint was not unfair to the accused. However it was an error nonetheless.

25 For the foregoing reasons the complaint is remitted to the learned magistrate with a direction under s 110(2A) of the Justices Act 1959 that her Honour furnish the Court with further and better reasons.