Court of Appeal (WA)|2003-09-22|Before: Templeman J, Smith J

Long v Mayger [2003] WASCA 223 (22 September 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LONG -v- MAYGER [2003] WASCA 223

Appeal - Criminal law - Conviction of unlawful wounding - Complainant struck to head by glass bottle - Whether finding that lacerations caused to right front of complainant's face caused by breaking bottle - Whether caused by appellant or result of fall to glass on ground - Whether finding open on evidence - Whether other inferences reasonably open on evidence - Turns on own facts

Harvey v Matthews [1999] WASCA 58

Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

Rasoolifard v Nichol [2001] WASCA 180

Scarce v Killalea [2003] WASCA 81

1 ROBERTS-SMITH J: On 18 March 2003 the appellant was convicted by his Worship Mr Heaney SM in the Joondalup Court of Petty Sessions on a complaint that on 13 September 2002 at Joondalup he unlawfully wounded one Sacha Mauchien, contrary to s 301(1) of the Criminal Code.

2 The appellant has not yet been sentenced. Having heard submissions from the prosecutor and defence counsel following the conviction, the learned Magistrate made the observation that the offence was so outrageous that he felt the overriding obligation of the Court was to impose a penalty which would provide a general deterrent to all of society to such an extent that necessarily over-rode any circumstances personal to the appellant. His Worship said he was of the opinion that the matter should be dealt with by way of a prison sentence, although he accepted defence counsel's proposition that a pre-sentence report should be obtained. Accordingly he adjourned the matter for a pre-sentence report, albeit adding:

"There's very little doubt in my mind that the end result is going to be a prison sentence. In fact there's no doubt. The pre-sentence report is just for the sake of determining whether [the appellant] is suitable for parole ..."

But his Worship was of the opinion that the appellant ought to be remanded in custody as of that day.

3 On 1 April 2003, Templeman J granted the appellant leave to appeal against the conviction and released him to bail on his personal undertaking of $1,000.

4 Leave to appeal was granted on three grounds. The first (ground (A)) is that the finding of the learned Magistrate that the wounds suffered by Sacha Mauchien were caused by the appellant striking him on the head with a glass bottle - such bottle breaking and cutting Mauchien's face - was against the evidence and the weight of the evidence. The ground asserts that the learned Magistrate should have found on the evidence of witnesses called by the prosecution that the injuries suffered by Mauchien were not caused by the appellant. Extensive particulars were given which it is not necessary to set out at this point.

5 Ground (B) is that in making the finding that the wounds to the right side of Mauchien's face were caused by the appellant breaking a bottle on the crown of Mauchien's head, the learned Magistrate erred in fact and in law in drawing inferences and conclusions which were adverse to the appellant when other equally compelling inferences and/or findings favourable to the appellant were open on the evidence adduced by the prosecution.

6 Ground (C) is that in finding that the appellant intended to cause the injury to Mauchien, the learned Magistrate erred in fact and in law in drawing inferences and conclusions which were adverse to him when other equally compelling inferences and conclusions were open on the evidence adduced by the prosecution.

7 The appeal came on for hearing before me on Friday 8 August 2003.

8 An appeal by leave under the Justices Act 1902 (WA) may only be made on the ground that the learned magistrate made an error of law, or fact, or both, acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive, or that there is some other reason sufficient to justify a review of the decision (s 186(1)).

9 Having regard to the way in which the grounds were expressed here, I take it that ground (A) asserts error of fact within s 186(1)(a)(i), or possibly asserts "some other reason" sufficient to justify a review of the decision under s 186(1)(a)(iii). Grounds (B) and (C) are expressed in the alternative, to claim error of fact or law.

10 The appeal is by way of re-hearing (see O 65A r 9 and O 63 and O 65 of the Rules of the Supreme Court) although in this case, as neither party sought leave to adduce further evidence on the appeal the question to be determined is whether the decision of the learned Magistrate has been shown to be wrong on the evidence before him.

11 Until recent years, it was said that appellate courts took a quite stringent approach to appeals against findings of fact dependent upon credibility. It was said that such findings would not be disturbed unless it could be shown the primary decision-maker had misused or failed to use his or her advantage in being able to observe the witnesses, or had proceeded on the basis of facts incontrovertibly established by the evidence or which were glaringly improbable (Devries v Australian National Railways Commission (1993) 177 CLR 472; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167).

12 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) [1999] HCA 3; (1999) 73 ALJR 306 is said to have represented a move away from the perceived rigidity of the earlier approach. There the High Court allowed an appeal from the decision of the New South Wales Court of Appeal dismissing an appeal against a single Judge who had dismissed the appellant's claim against Earthline Constructions for fraudulent claims allegedly made by that company. The Court of Appeal had held that as the trial Judge had made his findings substantially on the basis of his assessment of the credibility and demeanour of witnesses, that Court was not in a position to interfere. The High Court held that the trial Judge's emphasis at the trial on the demeanour of witnesses was inappropriate and a substantial body of other evidence had been overlooked. An appeal court is bound to look to other evidence if the primary Judge's findings as to the evidence of witnesses is insecurely based. The findings made by the primary Judge were surprising and suggested that the "significance" attached by him to the witnesses' appearance and demeanour was misplaced, particularly in a context where the Judge had failed to give sufficient attention to all the evidence in the case.

13 Kirby J expressly reviewed the history of, and principles governing the appellate review of questions of fact.

14 Having analysed the historical evolution of the principles of appellate review, his Honour adumbrated a number of changes in the appellate function bearing on the proper approach to that task. His Honour particularly noted ([88]) the growing understanding of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses. His Honour observed that most Judges are today aware of scientific studies which cast doubt on the correctness of the assumption that truth and credibility can be discerned from the appearance of witnesses. For that, amongst other reasons, his Honour concluded that (at 328):

"Trial judges should strive, so far as they can, to decide cases without undue reliance on such fallible considerations as their assessment of witness credibility. And appellate courts should refrain from needlessly expanding the categories of trial conclusions about the facts which are effectively unreviewable because of presumed or inferred credibility considerations."

15 The application of the principles of appellate review to criminal appeals was explained by the High Court in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ at 493:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."

16 However, as Miller J said in White v Goodger [2001] WASCA 259 at [5]:

"... there will be circumstances in which even making full allowance for the advantage employed by the learned Magistrate in seeing and hearing the witnesses, an appeal court may consider a conviction to have been dangerous or unsafe. In M v The Queen (supra at 494 - 495) their Honours added:

'It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. 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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.'

There is no doubt that these principles apply to an appeal against a finding of a Magistrate in petty sessions just as much as they do to an appeal from the verdict of a jury: Harvey v Matthews [1999] WASCA 58 at [11]."

17 Sacha Mauchien gave evidence that he was at the Grand Boulevard Tavern at Joondalup talking to some girls by the dance floor when he was bumped quite hard. That caused him to throw his hands forward, knocking the drink held by the girl in front of him, into her face. She immediately headed to the toilet to clean herself up, handing him her drink as she left. Mauchien turned to see who had bumped him and saw a person by the name of Guy Ferrier laughing at him. Mauchien, who was holding a drink in each hand, asked Ferrier to wipe the spilt alcohol off him. There was then a verbal exchange between them and then Ferrier grabbed Mauchien by the throat, pushing him back and punched him to the face. The punch caused a split in the skin above his left eyebrow. At that point others held both of them apart. The two of them continued to struggle. There was pushing and shoving going on. The place was crowded and they were pushed towards the dance floor, or stage. They started exchanging punches again until both were again restrained by others. James Gavin held Mauchien by the back. Mauchien said it was then he felt a tingle on the side of his face and at the back of his head, but at that stage he did not know what it was (AB 21). He said he then lost his balance and fell back, half onto the stage (or dance area) onto the floor. Then he got up but could not see out of his left eye at all and felt blood coming out of his face "spurting out ... like a hose" and blood just going everywhere. He looked at Tom Ferrier, shook his head at Ferrier and walked out of the tavern by himself. He lay down outside to try to reduce the flow of blood. He was attended to by others present and was subsequently taken to Joondalup Hospital and then transferred to Sir Charles Gairdner Hospital. He was discharged the following day.

18 He was unable to say how the injuries to the right side of his face occurred.

20 In cross-examination, Mauchien said that being a Friday night the tavern was quite crowded. There was loud music playing. It was very much a "pumped up" atmosphere. The dance floor too was crowded. There were flashing strobe lights but apart from that the lighting inside was dim. The noise was a thumping loud noise. He said he was standing on the dance floor when bumped by Ferrier. It was a big bump which caused him to throw his hands forward with his drink. When the argument and fight broke out between him and Ferrier, Mauchien dropped the two glasses of beer he was holding. They fell to the floor and smashed. At this stage he was standing near the dance floor. There was an elevated stage on the dance floor.

21 In the course of his altercation with Ferrier, many other people became involved in the melee and he was pushed from one side towards the stage. People were trying to separate them. It was when he was being restrained by one person from the rear and another from the front that he felt a "tingle" to the back of his head. In evidence he indicated the top right part of his head. Further pressed on this in cross-examination, he indicated slightly to the right of the crown area at the top of his head. He said he did not fully comprehend at the time what had happened. He then lost his balance and fell back onto the stage then onto the dance floor. The stage was a couple of feet higher than the dance floor. He described it in the following way (AB39):

"Yes. Okay. So you fell backwards - right?---Yes.

As a result of this tingling sound (sic). Right? That caused you to lose your balance?---Yes.

Yes. You said you fell on the dance floor?---Yes. Fell back on to the corner of the dance floor.

Well, that - - the corner of the dance floor is the stage, isn't it?---The stage. Yes.

Yes. You went back on to the stage?---And then - -

Then you went forward on to the floor. You fell on to the flor (sic)---Yes.

On to the dance floor?---Yes.

All right then. And - - all right. And you say you fell on the floor. And this was once again the approximate area where you were standing when you dropped your two glasses. Correct?---No, it wasn't.

Well, I put it to you it was?---No, it wasn't. ..."

23 He said that when he got up from the floor he had no blood on his hands. It was a wooden floor with some sort of carpet covering. It was put to him that when he fell on the floor he must have hurt himself. There was then the following exchange (AB 41):

"No, I didn't hurt myself when I just fell on the floor.

I put it to you that what happened was that your head landed in the broken glass that was on the dance floor?---Sorry? Say that again?

I put it to you that your head fell on some of the broken glass. Some of it was on the dance floor?---Yes.

Yes?---Yes.

And I put it that's what happened?---Yes.

And I put it to you that of course when your head fell on to some of the broken glass that was on the dance floor, your head naturally was cut by some of the broken glass that was on the dance floor?---I didn't know my face was cut at that stage.

Well, we'll deal with that stage in a minute?---Yes.

But I put it to you that - you may not have known it - - ?---Yes. Yes.

- - but I put it to you did fall on the broken glass you've acknowledged on the dance floor?---Yes.

All right?---Yes.

Now, at that stage you may well not have known that the cut to your face was caused by the broken glass on the dance floor?---Mm hm.

Correct? You probably didn't know - - ?---Correct. Yes."

24 In re-examination Mauchien said that the position where he had dropped the glasses at the outset of his confrontation with Ferrier was some 4 or 5 metres from the position he was when he fell against the stage and then on to the floor. He was then asked about glass on the floor (AB 45):

"PROSECUTOR: Now, you said in cross-examination that when you fell to the ground there was glass on the floor?---No. Apparently that's what he said.

Do you recall saying that you fell and that there was glass on the floor?---On the - - after being hit on - - where the stage was and I fell back?

Yes. Yes?---There could have been. Yes.

All right. Well, you did say there were. Do you know where that glass came from?---No.

Yes. I've no further questions, thank you, sir.

HIS WORSHIP: You just said then - - just first of all let me tell you: you're in the witness-box. You're giving evidence?---Yes.

You're the one who we're interested in?---Yes.

You're there to tell us what you know?---Yes. Yes.

Right? Now, you said there that when you first dropped the glasses you dropped them in a specific place that you - - it was where Tom grabbed you and you dropped the glasses, and then you were moving around in the course of a fight, and you fell over near the stage, 4 to 5 metres from where you dropped the glasses?---Yes.

Then it was put to you by the sergeant that there could have been glass on the floor. There could have been glass?---Could have been. Yes.

Yes. But you said you don't know where the glass came from?---No.

Yes. Well, did you see any glass on the floor?---No. I didn't see at that stage. No.

So you didn't see any glass on the floor?---No."

25 The learned Magistrate asked the prosecutor and counsel for the applicant whether anything arose out of the questions he had asked. Counsel for the appellant then asked (AB 46):

"Just in relation to the glass on the floor, you don't know whether there was glass on the floor or not, do you?---No, I don't.

But in any event when you got up from the floor you had blood spurting from your head. Correct?---Definitely. Yes."

26 The next witness was Stephen Crane. He was at the tavern that night with friends including James, Gavin and Aaron Beddows. He testified that he saw the fight and the incident that followed afterwards. When the fight started he was about 2 metres away from it near the toilets. The first person he recognised as being in the fight was Ferrier. Then he saw people splitting the fight up and people being moved away. He said he then saw the appellant move across, saw the appellant's arm swing and heard glass shattering. He did not actually see the glass or whatever it was contact anyone, but he heard the smash. He thought what the appellant had in his hand was a bottle. After that he saw the appellant leave and he stopped him. He asked him what happened. The appellant said he did not know. Crane said: "You've just bottled some lad", to which the appellant said: "I didn't know I had it in my hand. I was trying to stop the fight." Crane then turned around to see who had been struck. As he turned around the appellant stopped him and said: "I never knew I had it in my hand" to when Crane said: "Save it, you'll need it" and then walked away. That was the last time he saw the appellant. He later saw Mauchien on the floor with a bandage around his head.

27 There were a lot of people there and although he could see there was a fight and punches being thrown, he could not really see who was doing what. He was adamant in cross-examination however, that he saw the appellant come at Mauchien from the side, from his left - which was from Mauchien's right. He said the appellant appeared to spring from Mauchien's right side.

28 Another witness was Lee Simmons. He was a 19 year old floor sander. He had arrived at the tavern with Ferrier at 9.30 or 10.00 o'clock on Friday 13 September 2002. They met up with other friends. He was speaking to one of the friends at the time of the incident, which happened behind him. He turned around to see the appellant and Mauchien exchanging punches. Both of them were good friends of his. They continued fighting on the dance floor. There was a fair bit of pushing and shoving. Simmons said he was trying to break it up at the start but was unsuccessful. The fighting continued. There were a lot of people surrounding both protagonists. Punches were being exchanged. It got to the stage where they were pulled apart. After that he saw Mauchien standing on the dance floor and "then from behind he copped a pint glass over the head". He said it was over the back of the head. He said he saw the appellant "sort of" lunge from behind Mauchien and give him a clean smash over the back of his head with a pint glass.

29 In cross-examination he said he had been drinking before going to the tavern, probably three or four bottles of beer. The incident happened about 11 or 11.30 pm, some two hours or so after he had arrived at the tavern. Over that time he had probably had another three pints of full strength beer. He could possibly have had five.

30 He said he had not seen the start of the fight and was probably a couple of metres away (perhaps three to four) when he turned around and saw the exchange of punches. There was a lot of pushing and shoving going on and people trying to pull Mauchien and the appellant apart. The group moved "close to the stage". He agreed that the appellant approached Mauchien from the right rear. Asked whether he was sure it was a pint glass and not a bottle he said it could have been either, but it was clear glass; he knew it was a clean smash and a clean break on Mauchien's head because it all happened so quickly. He remembered that when the glass shattered, one man actually got some in his stomach. He remembered the man lifting his shirt and saw he was bleeding. He remembered one girl had a hand cut as well from the shattering glass. He said that the appellant had lunged at Mauchien from behind. When Mauchien received the blow he took it, stood there a little bit, and then eventually held his head in his hands and went down to the floor.

31 Questioned in re-examination about where Mauchien was struck, Simmons said it was "to the back of the head, to the top of the head". It was to the back or top, from behind.

32 The witness Melissa Rapana, 20 years old, gave an account which differed from all the other witnesses who described the incident. She said she knew Mauchien but not the appellant. She saw that part of the fight where Mauchien was pushed into a group of boys and a glass was hit in his face. She said Mauchien pushed the guy back and another one came through and hit him in the face with a pint glass. She said the person approached Mauchien face on, from his front and hit Mauchien right in the face with a pint glass; that was all she saw. She could not remember what that person looked like. She said she was actually taken to the toilet because she ended up with a bit of glass in her eye so she did not really see much after that.

33 In cross-examination she said that she did not see what started the fight; when she was watching they were pushing each other and she did not remember seeing any punches thrown. She saw Mauchien being pushed back towards her and then the glass came flying at his face. She said she was basically to his left hand side at the time.

34 Counsel for the appellant before the learned Magistrate put it to the witness that no-one threw a glass at Mauchien's face, but she adhered to her testimony that was what she had seen. She was definite that what she had seen was a glass, not a bottle.

35 Counsel for the appellant put to her that when she said she saw a "little bit of blood" it was not as if blood was spraying everywhere. She agreed with that. The cross-examination then continued (AB 109):

"Didn't you tell the police, 'After the guy hit Sasha in the face with the glass, blood and glass sprayed everywhere over a lot of people and I got some glass in my eye'?---I got glass in my eye and blood of me but - -

Yes. I'll deal with it step by step. Didn't you tell the police, 'After the guy hit Sasha in the face with the glass, blood and glass sprayed everywhere over a lot of people'?---Glass but not blood everywhere.

Didn't you tell the police blood sprayed everywhere?---Yeah, blood sprayed everywhere but on me, basically.

Did you tell the police that blood sprayed everywhere?---Yes.

Well, that's not the case then, is it, from what you're saying, is it? Because you say he had a little bit of blood on his nose - - ?---Yes.

- - before you went to the toilet?---Not so much like a little dab but, yeah, blood was coming out of ... (indistinct) ...

Yes, but you told the police blood and glass sprayed everywhere?---No.

There's a difference between blood, for example, spraying everywhere wouldn't you agree, than having a little bit of blood on the bridge of the nose?---Correct.

Which is the truth?---Basically the truth is there was blood on his nose coming down and some of it did go on other people that were basically closest to him, and I was one of them. I don't know about anything else. Probably there would have been another girl there, and she had a little bit of blood on her.

MR BAKER: Yes, but - - but it isn't the case, is it?---But it didn't spray everywhere but - -

It didn't spray everywhere?--- - - it did go on me and probably someone else.

So you're saying that the blood didn't spray everywhere?---Not over everyone but, yeah, it - -

Everywhere?--- - - did spray on to me and someone else, yes."

36 She was cross-examined at some length about this. She insisted that virtually instantaneously with the smashing of the glass, blood came onto her and she saw another girl who was screaming that blood when flying onto her as well. Again, asked whether the blood sprayed or not, she said it did.

37 The witness James Gavan was 19 years old. He was in the tavern at the time with a group of friends. He was standing in a corner by the disc jockey talking to a girl when he felt beer being poured on his shoulder and down his arm. He turned around and saw two men fighting. He did not know who they were at the time. He tried to get in the way to split them up to help pull them apart. It was then he realised who they were. He knew both of them. Ferrier was "sort of going at" Mauchien and then backing away. Gavan said he grabbed hold of Mauchien by the front of his shirt and tried to pull him away towards the steps of the upper level of the dance floor. Ferrier kept on coming back and people were trying to push him back. Gavan was trying to pull Mauchien away when he heard glass break. Girls were screaming and then it all just "sort of stopped". He still had hold of Mauchien by the front of his shirt and Mauchien's body weight shifted and he fell on Gavan "a little bit but then he pulled back up". Mauchien had his head down. As Gavan lifted him, he asked if Mauchien was okay and saw then that his face was covered in blood. Bouncers then moved in and took control of the situation and Gavan moved off. He did not really want to have any more to do with it. He made his way outside a few minutes later and saw Mauchien lying back on the floor under a light. People were bandaging him and picking glass out of his face.

38 Asked in cross-examination whether he was able to say what sort of glass object it was with which Mauchien was struck, he said he would be speculating.

39 Gavan reiterated that after he heard the sound of smashing glass, Mauchien's head dropped and Gavan was just trying to lift up his head straight away. Mauchien was still standing a little slouched, but Gavan had hold of him. Mauchien's body weight had shifted, he seemed to have lost his balance. Gavan brought him back up and that is when Mauchien lifted up his head and Gavan saw the blood. Gavan tried to push Mauchien towards the steps near the stage.

40 It was put to him that Mauchien went down onto the ground, but Gavan denied that. He said Mauchien stayed standing, although he appeared to lose his balance and moved forward a bit. Gavan said he just brought Mauchien back up and that was it. By then the bouncers had come in and Gavan left and went and cleaned himself up. He had blood on his shirt, down his sleeve, down the front and all down his trousers and on his shoes. He assumed the bouncers took Mauchien outside but he did not see that.

41 The last witness was First Class Constable Wayne Mayger of Joondalup Police Station. He began enquiries into the matter on Monday 16 September 2002. He said the appellant declined to take part in a video interview. He obtained a security surveillance tape from the tavern. That was tendered as exhibit 4 and played in court.

42 Medical evidence was given at the trial by Dr Iain Josephs.

43 Dr Josephs examined Mauchien about 2 am on 14 September at the Joondalup Health Campus. That was some hours after he had been brought in for attention. On examination, the doctor found Mauchien to have multiple deep lacerations to his face. There was a 5 to 6 cm full thickness laceration extending from his forehead to down past his right epicanthic fold. There was a deep crescenteric laceration to the right side of his nose and a small superficial laceration to the lateral aspect of his left eyebrow. His wounds were cleaned and dressed and he was transferred to Sir Charles Gairdner Hospital for definitive care under their plastic surgeons. Dr Josephs has had no contact with him since then.

44 In the doctor's opinion, the injuries interfered with the health and comfort of the patient and at the time of receiving the injury were likely to cause permanent injury.

45 From the photographs, exhibit 2, it is apparent the lacerations extend from approximately the middle of Mauchien's forehead, between his hairline and eyebrows, perhaps a couple of centimetres to the right of the midline, extending down past the inner edge of his right eyebrow to the side of his nose at the top. There is a laceration from the top mid-point of his nose, extending out to the right down almost to the base of the nostril. There are other smaller lacerations to the right side of the nose and to the skin below the eye adjacent to the nose.

46 There is a smaller laceration just below the outer aspect of Mauchien's left eyebrow. It is common ground that was not caused by the appellant.

47 According to Dr Josephs, the 5 to 6 cm laceration was a full thickness cut extending down to the bone.

48 In his evidence-in-chief the doctor said that he had only seen that kind of injury caused by broken glass and a considerable force would have been necessary to inflict those lacerations. Asked whether they could be caused by someone tripping and falling onto glass he said (AB 69-70):

"In order for injuries such as these to be caused by somebody falling onto broken glass, normally what you see if people fall onto glass there will be glass embedded in the skin and the glass will fracture and stay embedded in the skin. So this kind of laceration if you were to fall on broken glass you would have to fall onto, say, a broken bottle or broken glass which would be sticking up out of the soil and be elevated vertically. Even then I would expect a very different pattern of injury.

PROSECUTOR: Why?---If you're falling over and you hit glass at that kind of velocity when a grown man falls, he falls with considerable speed, I would expect there to be bony injury which there wasn't, and more of a stabbing nature of a laceration. So something more akin a sharp object being pushed through the skin rather than sliced over the surface of the skin or across the skin." (Emphasis added).

49 Cross-examined, Dr Josephs confirmed that Mauchien had been brought into the hospital at 11.45 pm on 13 September.

50 Asked further about the nature of the lacerations, the doctor reiterated they were similar to cuts using a surgical scalpel. He agreed that to express an opinion whether or not the injuries could have been caused by someone falling onto broken glass, it would be necessary to know the circumstances. He said (AB 71):

"You would need to know a lot of things and you would expect to see associated injuries with a fall."

He agreed there would be a lot of variables which it would be necessary to know about.

51 When counsel put it to him that it was not beyond the realms of possibility that the injuries he saw could have been sustained by Mauchien falling onto broken glass or a broken glass, he said he thought it would be extremely unlikely. He said that:

"In order to fall onto a broken glass with your face it means you're not going to put out your hands to protect yourself so you're going to be falling with your hands by your sides."

52 He reiterated, when pressed, that he would consider it extremely unlikely, but added: "... but yes, it is possible if that's what you want me to say".

53 Asked about the positioning of glass on the ground, the doctor said he could not see how that kind of injury could be caused by a piece of glass sticking out of the ground. He said that where the lacerations were around the eye as he saw them, he would find it very difficult to think of a position in which a piece of glass could be on the ground and a series of events could lead up to causing that kind of injury. Again pressed further by counsel, he conceded that it was possible, but in his opinion was unlikely.

54 He very strongly expressed the view that a broken glass lying on the ground could not have caused those injuries. It would had to have been embedded in the surface of the ground, protruding in a certain way and Mauchien would then have had to have fallen over landing eye first onto it.

55 In re-examination he explained that when people fall to the ground and strike their face, it is rare for them to not injure their hands because they tend to put their hands out first; alternatively, were a person's hands being restrained and he was to fall to the ground and hit his face first, the site of injury the doctor would expect would be the chin - which is where he saw the vast majority of injuries. He said that people tend to come down chin first when they fall over and so he would also expect abrasions and roughing from where the person abraded himself on the ground. He would not expect just discrete cuts without any other sign of the person having contacted the ground.

56 Asked specifically about falling onto a wooden floor, Dr Josephs said it was difficult to imagine how a piece of glass would be protruding from a wooden floor in such a way as to sustain the injuries seen. He then added (AB 76):

"... Let's say you've got a drinks glass and it's already been broken so that the top has been sheered off and it's left there sitting on its base which is a possible scenario and you were to land on that head first, you would have a ring of glass thrust into your face. That entire ring would be thrust into your face and I would expect a very different pattern of injury to this.

The point Mr Baker was making is that there's an infinite number of different ways that glass broken can land on the floor?---Mm. Yes, but it lies - - If a glass is smashed and there's broken glass lying on the floor then it lies - - You don't get great big shards sticking up.

Well - - ?---It just doesn't happen."

57 At that point the learned Magistrate said he thought the answers were getting far too hypothetical.

58 The police prosecutor concluded his re-examination by asking what the doctor would expect if the person was falling face forward from any position. The answer was that (AB 77):

"I would expect - - they usually strike their chin first when they fall over and perhaps their nose because it protrudes from the face. If they land on the side of their face they'll tend to injure their cheek and they'll often have bony injuries of that area if they strike the floor, and he didn't have any of those. He had isolated lacerations to the face."

59 The situation when his Worship came to consider his decision, was that counsel for the appellant had admitted the appellant did strike Mauchien to the head with a bottle, but denied that blow caused the injury to Mauchien's face. The argument was that there were other reasonable hypotheses open - in particular, that Mauchien suffered those injuries when he fell onto glass on the floor after he was struck on the head by the appellant with the bottle.

60 The case before the learned Magistrate and on this appeal was fought on the basis the issue was a factual one of causation; that is, whether the lacerations to Mauchien's face were caused by the bottle held by the appellant breaking when it struck him. There was no issue about whether, on that view or on the alternative view, that the injuries were (or may have been) caused by Mauchien then falling face down onto broken glass as a result of being struck by the appellant, the receiving of those injuries was an event which occurred by accident. There is therefore no need for me to consider that issue.

61 His Worship briefly recounted the evidence. He said he thought that of Melissa Rapana lacked credibility in that he was not confident she was describing what she saw, as distinct from things she might have been told afterwards.

62 It is apparent the security video (exhibit 4) was influential in the learned Magistrate's reasoning. His Worship said (AB 185-6):

"That video reveals - - shows clearly the build up to this incident, as described by the previous witnesses. It does not show the actual contact of the bottle to the head, as the defendant and the complainant moved out of the camera range. But whilst in the camera range it was clear that Mr Long with a bottle in his hand was stalking Mr Mauchien, waiting for a clear shot at Mr Mauchien.

We saw the video reveals him with the bottle in his hand. It reveals him lifting the bottle up above his head as if to strike someone. The opportunity was lost so the strike - - his hand went down again. It subsequently came up again, but it was at that stage they moved off the vision of the camera, so we were unable to see the actual striking of it.

Given the defence raised by Mr Long, the point of impact of the bottle on Mr Mauchien's head needs to be addressed. The would to Mr Mauchien's face would seem to suggest that the blow was to the front of the face. But it may well have been to the top region of his head and that the shattered glass sliced open the face of Mr Mauchien. Mr Mauchien - - if that did happen, Mr Mauchien wasn't the only one who was cut by the shattering glass. Because we've heard evidence of two other people also being cut. Mr Mauchien said he felt a tingling sensation to the back of his head and the side of his face.

As I indicated earlier, there was only one blow. It wasn't a case that there were two blows, one to the top of the head and one to the side of his face, there was just one blow. So I don't think it's all that significant, whether the blow was to the front of the face or to the top of the head. If it was to the top of the head and the shattering glass came down and sliced the face of Mr Mauchien, then that is sufficient to sustain this charge.

The proposition that Mr Mauchien sustained the would when he fell to the floor and cut his face on the broken glass, I absolutely reject. The Doctor said that it was doubtful that the particular injuries sustained by Mr Mauchien would have occurred in that manner. There's even some doubt that Mr Mauchien even fell to the floor. Mr Gavan said he held him up before he could fall to the floor. Mr Mauchien said he did fall to the floor, but it shouldn't be forgotten that Mr Mauchien had just received a blow to his head that if it didn't render him temporarily unconscious, it certainly staggered him. So, Mr Gavan who hadn't received a blow to the head was adamant that Mr Mauchien didn't fall to the floor.

Just on, finally on the questions of the extent of the injury. There's no doubt that the injury to the left eye was not caused to Mr Long - - sorry, was not caused by Mr Long. Having heard the evidence in this matter and having considered the evidence, I'm satisfied beyond reasonable doubt, that on the 13th of September 2002 at Joondalup, James Howard Long did unlawfully wound Sasha Mauchien. I find the charge proven."

63 In the course of some preliminary submissions on sentence, counsel for the appellant at trial commented that his Worship had found that the blow to the rear of the head on the crown caused the cutting to the front of Mauchien's face. His Worship interrupted counsel at that point, saying (AB 190):

"No, I didn't. I didn't find that, I said I don't know - - I don't exactly know where it was. But it was either to the front or to a position on the head, such that the - - -"

64 The transcript notes that the tape ended there. It recommences at the end of something being said by counsel to the effect that the appellant set out to disarm Mauchien. To that his Worship said the video shows the appellant walking around with a bottle in his hand, raising it up and when the opportunity was lost putting it down again. His Worship added that it shows the appellant stalking around a bit further and when the opportunity presents itself, raising the bottle again, which his Worship said shows a clear intent. Counsel said "only to use the bottle as a club", to which his Worship responded that the appellant is a paramedic and knows what happens when bottles smash on people's heads: "They fracture; they break; and they slice people" (AB 191).

65 Following further submissions from counsel, his Honour made some preliminary observations with respect to sentence and ordered a pre-sentence report. In the course of those remarks he said (AB 192-3):

"I think the video reveals what happened.

Mr Long was seen on that video skulking around the periphery of the fight between Mr Ferrier and Mr Mauchien. As I indicated in my decision, he was stalking Mr Mauchien, waiting for the opportunity to strike and he was patient. He waited and waited until the opportunity presented itself. The video reveals his clear intent to use this bottle in the manner that he did."

66 A viewing of the video-tape shows those findings were well open to his Worship. The appellant is clearly seen holding the bottle by the neck for use as a weapon. He is seen to raise it to strike, but there was too much movement in the crowd and he had no opportunity. He is seen to lower the bottle. The actual blow subsequently occurs off-camera.

67 The first ground of appeal is that the learned Magistrate's finding that the wounds suffered by Mauchien were caused by the appellant striking him on the head with a glass bottle, which bottle then broke and caused the cuts to the front right of Mauchien's face, was against the evidence. It is pleaded that his Worship should have found the lacerations were not caused by the appellant. Of course it was not necessary for his Worship to have made a positive finding that the lacerations were not caused that way. The onus was on the prosecution to prove that they were. If the learned Magistrate was left with a reasonable doubt about that he would have to have acquitted the appellant.

68 The particulars given in support of this ground are selected references to some parts of the evidence of some witnesses. They do not necessarily reflect the overall effect of the witnesses' evidence. Even if they did, the learned Magistrate was not obliged to accept them either individually nor in combination and nor would they have necessarily have created a reasonable doubt. The effect of the evidence was for his Worship to determine. The critical question for me in relation to this ground, as I have said, is whether the conclusion reached by his Worship was reasonably open on the evidence.

69 The learned Magistrate accepted the evidence of James Gavan that he was holding Mauchien when the latter was struck and that Mauchien's body weight fell on him but Gavan held him up. Mauchien did not fall to the ground. Mauchien's head was down and when he raised it and Gavan looked at his face it was covered in blood. On that evidence his Worship was entitled to conclude the blow caused the injury which produced the bleeding. It was in that context, and in response to what had been urged on behalf of the appellant, that his Worship found that whether the blow had been to the top of the head, or to the face, he was satisfied there was only one blow and it was the broken glass from that blow which caused the lacerations by slicing Mauchien's face open.

70 The thrust of the submission advanced on behalf of the appellant was directed to demonstrate that the evidence showed the blow was to the top of Mauchien's head and if that was so it could not have caused the injuries to the front of his face.

71 In my view the evidence does not support that submission. The situation was volatile and occurred suddenly. The events occurred in a crush of people. There was a lot of movement. As is to be expected, some witnesses saw more than others. Some had a better recollection than others. It is not unusual to find discrepancies in the various accounts of honest witnesses who are endeavouring to recall events which occurred sometime before the hearing (Salmon v The Queen [2001] WASCA 237). Those who saw the blow or part of the appellant's actions in delivering it, generally said it was to the top of Mauchien's head. The precise point of impact and the precise angle at, or direction from, which the blow was delivered were not established. Crane was adamant that the appellant came at Mauchien from Mauchien's right. Given that evidence, together with Mauchien's testimony that he felt a "tingle" on the side of his face and at the back of his head at the same time, Gavan's evidence that Mauchien's face was covered in blood immediately after the blow, and Dr Josephs' evidence that the injuries were consistent with the application of considerable force to the face by a sharp glass object in a slicing motion, the finding made by the learned Magistrate that the injuries were caused by the appellant's blow was clearly open to him.

72 The learned Magistrate "absolutely" rejected the proposition that Mauchien sustained the wounds when he fell to the floor and cut his face on broken glass. Notwithstanding the tentative way he expressed it, his Worship seems to have accepted Gavan's evidence that Mauchien did not fall to the floor. It was open to him to accept that evidence. He also mentioned Dr Josephs' evidence that it was doubtful the particular injuries sustained could have been caused in that way. The doctor's evidence on that was persuasive. Although he conceded cuts could be suffered by someone falling onto broken glass where glass was sticking up vertically (whether because it was stuck in soil or was protruding from the broken base of a bottle) he would in that situation expect more of a stabbing injury. He described that as something more akin to a sharp object being pushed through the skin rather than sliced over the surface or across the skin. The injury here was of the latter kind. In addition, had Mauchien fallen face down, the doctor would have expected to have seen other injuries, either to his hands from putting them out to break his fall, or impact injuries to the face and particularly the chin. Mauchien had neither. On this evidence it was open to the learned Magistrate to absolutely reject the defence hypothesis.

74 Ground (B) really turns on the proposition that an inference critical to a finding of guilt cannot be drawn against a defendant unless it is the only reasonable inference open on the evidence; in other words, unless the prosecution has excluded any reasonable inference consistent with innocence. That proposition certainly reflects the law (Chamberlain v The Queen (No 2) ([1984] HCA 7; 1984) 153 CLR 521, per Gibbs CJ and Mason J at 535 and Brennan J at 599; Shepherd v The Queen (No 5) [1990] HCA 56; (1990) 170 CLR 573 per Mason CJ at 576; Medina v The Queen (1990) 3 WAR 21).

75 In this case the learned Magistrate "absolutely" rejected the alternative possibility that the cuts to Mauchien's face were caused by him falling face down onto glass on the floor. This was a finding that the cuts having been caused by the broken bottle slicing down Mauchien's face was the only reasonable inference. His Worship was quite entitled to make that finding on the evidence before him for the reasons I have already given.

76 It cannot properly be said his Worship failed to have regard to other competing explanations said to arise on the evidence. He had regard to, but rejected them. He considered they did not give rise to a reasonable doubt. Nor do I accept the argument that his Worship speculated about the circumstances of the injury. The evidence to which I have referred afforded a sufficient evidentiary basis for him to make the findings he did.

78 Ground (C) is misconceived. In fact it was not addressed, either in the appellant's written submissions or in oral argument. Intent to wound is not an element of the offence of unlawfully wounding contrary to s 301(1) of the Criminal Code. Thus, the prosecution did not have to prove that the appellant intended to cause the injury to Mauchien. If the purpose behind the ground was to rely upon the notion of unwilled act under s 23 of the Criminal Code, that is foreclosed by the concession that the appellant deliberately struck Mauchien to the head with the bottle. In any event, the evidence clearly established that he did so and that he intended to do so. This ground could not succeed.

79 For the reasons given, the appeal must be dismissed.

Long v Mayger [2003] WASCA 223

At a glance

Court

Decision date

Before

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Judgment (107 paragraphs)

Long v Mayger [2003] WASCA 223 (22 September 2003)

Parties

Cases Cited (11)