Criminal law - Appeal - Magistrates' Court - Aggravated unlawful assault - Whether Magistrate imposed duty on appellant to prove innocence - Whether Magistrate insisted that complainant be recalled - Whether Magistrate erred in suggesting that a witness was not motivated to lie - Whether miscarriage of justice

Harman v Western Australia [2004] WASCA 230; (2004) 29 WAR 380

J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365; (2000) 172 ALR 532

Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1

Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169

de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291

Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1

Mickelberg v The Queen (2004) 29 WAR 13

R v Abraham [1998] SASC 7148; (1998) 70 SASR 575

1 MILLER J: This is an appeal from a decision of Mr T J McIntyre SM delivered in the Magistrates Court at Perth on 7 November 2005, when the learned Magistrate convicted the appellant of the offence of aggravated unlawful assault contrary to the provisions of s 313(1)(a) and s 221(1) of the Criminal Code. Upon conviction the appellant was fined the sum of $1000 with costs of $74.

2 There were initially two grounds of appeal upon which the appellant was given leave to appeal to this Court. The second ground was abandoned at the hearing. It related to what was contended to be new evidence being the evidence of Leah Mieli, the daughter of the appellant. Miss Mieli was called to give evidence by CCTV, but her evidence did not amount to anything in the nature of probative evidence and at the conclusion of it counsel for the appellant rightly abandoned the second ground of appeal.

3 The one remaining ground of appeal is in the following terms:

"1. The learned Magistrate erred in law thereby leading to a miscarriage of justice. In convicting the Appellant the learned Magistrate in effect imposed a duty on the Appellant to prove his innocence, rather than putting the Prosecution to proof beyond reasonable doubt of the elements of the offence.

PARTICULARS

(i) The learned Magistrate insisted that the complainant be recalled so that a proposition could be put to her that the defence case was that the bruising to her neck had been caused by the Appellant pushing her with crutches.

(ii) The learned Magistrate then treated the case as involving making a choice between whether the injuries were caused by the crutch or as alleged by the complainant. Having dismissed the possibility that the injuries were caused by the crutch, the learned Magistrate proceeded to making a finding of guilt against the Appellant.

(iii) In assessing the evidence of the witness, Stonham, the learned Magistrate stated 'it was not suggested that he was motivated to lie'. It is not for the Appellant to suggest or prove a motive to lie and an absence of motive to lie can not strengthen the prosecution case."

4 The appellant was charged that on 7 February 2005 at Dianella, he unlawfully assaulted Jorgelina Gabriela Rivarola under circumstances of aggravation, namely he was in a family and domestic relationship with Jorgelina Gabriela Rivarola and a child was present at the time of the said assault contrary to the provisions of s 313(1)(a) and s 221(1) of the Criminal Code.

5 Section 313 of the Criminal Code sets out the offence of common assault. It is the unlawful assault of another. If the offence is committed in circumstances of aggravation it attracts a greater penalty than it otherwise does.

6 Circumstances of aggravation for s 313 of the Criminal Code are defined in s 221. The definition reads:

"'circumstances of aggravation' means circumstances in which -

(a) the offender is in a family and domestic relationship with the victim of the offence;

(b) a child was present when the offence was committed;

(c) ...

(d) ...

...

'family and domestic relationship' has the same meaning as it has in section 4 of the Restraining Orders Act 1997."

7 Section 4 of the Restraining Orders Act 1997 (WA) defines a "family and domestic relationship" (so far as is relevant) in the following way:

'family and domestic relationship' means a relationship between 2 persons -

8 In the present case there was no doubt that if the appellant unlawfully assaulted Ms Rivarola it was under circumstances of aggravation because they were in a family and domestic relationship in the sense that they had been married to each other. Further, there was present at the time of the alleged assault the child Leah Mieli.

9 This was a very simple Magistrates' Court case. The prosecution called two witnesses, namely the complainant and what it contended to be an independent witness. The defence called three witnesses, namely the defendant himself and two other supporting witnesses. The central issue was whether the defendant had unlawfully assaulted the complainant as she alleged.

10 The complainant testified that she was a 36-year-old secretary. On 7 February 2005, at about 6 pm she received a telephone call from her daughter who was at the home of her former husband, the appellant. The complainant said the daughter was in distress and wanted to come home. She asked to be picked up. The complainant asked her daughter to put her through to her former husband and she told him that the child wanted to come home and therefore she (the complainant) would come to fetch her.

11 The complainant was, at the time she received her daughter's call, at home. She was with a friend Peter Stonham. She told him what had happened and said that she had to fetch her daughter, Leah, from her father's house. Mr Stonham said in response that they should go around in his utility. This was because his vehicle was parked behind the complainant's. They then drove to the defendant's house in The Strand, Dianella. What then happened was recounted by the complainant as follows.

"So we pulled up into the driveway and I saw Leah standing in the driveway just outside the house. And when she noticed that I was in Peter's Ute, she ran back inside and came back out maybe I would say 10, 15 seconds - - seconds later with her hand - - with her school bag.

Hang on, please. Yes?- - -So I walked towards her and I assumed at the time that Eliahu knew that I was picking her up, that his was aware that I was there. So I went to take - -

Again, just a minute. So what then?---I stretched my arm to take Leah's hand and she said to me, 'Don't say anything to daddy, let's just go.'

...

All right. Go on. On this day he said 'What are you doing? You're supposed to be helping me'?---Yep. And so then I told him that I - - I was just there to take Leah home because she had told me she wanted to come home.

... she started screaming and kicking and - - and yelling at him, telling her - - telling him that he wanted - - she wanted to come home. So he picked her up with his - -

Just a minute. Yes?---He picked her up to stop her coming towards me and he then put his - - because I was - - I moved forward one step to try and take her by the hand. And he put his hand around my neck and was pinching my skin and pulling on my skin, which caused some bruising.

Just a minute. Mm - - - And at that stage I started to pull away, but he was still holding on. So I managed to pull away after that, while Leah was still hitting him and scratching him and trying to wriggle out of his arms.

... And it was then that I heard - - because Peter was still in - - in - - inside his car parked in the driveway. And it was then that I heard him call out to me or call out to Eliahu asking him to stop. And then there was swearing going on - I can't remember what was said - by Eliahu to Peter. But then Peter called me and he said, 'You can't reason with him, let's just go.' So I walked away and I got inside the Ute and then that was it. And then, you know, that's when I decided to go to Mirrabooka Police Station and - - and report it."

12 The complainant was cross-examined by counsel for the appellant. He is an experienced criminal lawyer. The essence of the cross-examination is captured in the following passage:

"He was on crutches on this day though, wasn't he?---No, he wasn't.

Well, can I just put to you, did the incident occur regarding the child at the door?---No.

Are you sure it wasn't the case you ran to the door because you saw the child run inside and you - - ?---No.

And you opened the sliding door?---No.

And that Mr Mieli was at the inside of that - - that glass door?---No.

And that you and him basically met face to face on that cusp of the door?---No.

And he fell backwards?---No.

He was in crutches?---No.

And you ended up landing on top of him?---No."

13 At the conclusion of the cross-examination of the complainant, the learned Magistrate put it to counsel for the appellant that he had not touched on the issue of how the complainant had received her injuries. His Honour pointed out that nothing had been put to the complainant to contradict her version that she was grabbed by the throat.

14 After an exchange with counsel for the appellant, the learned Magistrate indicated that if counsel did not wish to raise the issue with the witness that was entirely his decision.

15 Counsel however said that he desired to place on record his response, which was that the question of how the complainant suffered her injury became academic in view of the fact that she disputed the version that she had fallen on the appellant and he had pushed her away at a time whilst he was using crutches. Counsel added however, there was "a straight edged nature to the injury". To this the learned Magistrate responded by asking whether counsel was saying that the crutch caused the injury to the throat. Counsel indicated that this was "part of it". In response the learned Magistrate pointed out that counsel had chosen not to put that version to the witness, but counsel contended that he had. Counsel then indicated that he would recall the witness to "make sure that that part's bedded down".

16 The complainant was recalled and it was put to her that she fell on top of the appellant and he had crutches. She was asked whether she rejected that account and she said she did. She was then asked to look at the photograph of injury to herself and asked whether there appeared to be a straight edge to the injury "almost like it's been caused by something linear". The complainant did not agree. The following exchange then occurred:

"MR CRISP: Well what I'm putting to you is, that when you landed on Mr - - Mr Mieli, he at the time was on the floor and he was - - had a pair of crutches that were on his arms. And in the combination of the way you fell and the crutches, that's how you've ended up getting the injury?

HIS HONOUR: That you - - ?---I didn't fall on top of him and he didn't have crutches."

17 The learned Magistrate took the matter one step further by the following question:

"HIS HONOUR: If it was put to you - - if it was put to you that crutch caused the injury to the throat that's shown in the photograph, what would you say?---I wouldn't know what to say, because that's not what happened."

18 Peter Edward Stonham testified that he had taken the complainant to her ex-husband's house on the day in question. His account of what happened was as follows:

"I sat in the Ute, Georgie got out of the car, out of the utility, walked down the side of the car that was in front of me. With that, she stopped at about the left hand side of the car, about the light - - the headlight side fender, left hand fender. The young daughter, Leah came out of the house or out of the door and Leah ran back inside. And then Leah came out - -

...

And then with that I seen her ex husband come out the door, heading towards Georgie. Next thing I see is he had one hand on her neck - -

Okay. Just a minute. Yes?--- - - and the other hand was raised. With that I got out of the Ute and I yelled out, 'Hey, what the fuck do you think you're doing?' Or something like that, but it was hey, you know.

Yep. Yes?---With that he realised that there was someone else there, he let go of Georgie. He then picked Leah up under his arm like this and walked back inside - - well, went back inside."

19 It was put to Mr Stonham in cross-examination that the incident had occurred "in the cusp of the door". He denied this. He was asked whether he had seen the complainant fall forward into the door and he denied it. He was asked whether he had seen the accused man in the vicinity of the door and he again denied it. He was asked whether the accused had crutches and he said he did not. He said he was hobbling, but he did not have crutches.

20 The appellant was called to give evidence and he confirmed that his daughter had telephoned her mother, but had no recollection of speaking to the complainant himself. He said that he was unaware why his daughter was taking her trolley and bag towards the front door, but he followed her. He said:

"I was walking with my crutches towards the - - the front door. I didn't understand why she was walking to the front door. Suddenly somebody opened the door, pushed me in the chest here and jumped on me and fell on me. And it took me about a few seconds to see that it's her mother, because I was in - - under shock. I didn't know who it was. And then when she fell on me - - fell on me, I had the crutches on my hands and I was stuck with them and I tried to protect myself. And I tried to push her from the front neck.

MR CRISP: What happened then?---And I shouted, 'I'm going to get the police.' And then she got up and left."

21 When cross-examined by the prosecutor, the appellant was asked what part of his crutches he contended had made contact with the complainant. He said that he was in shock and tried to protect himself and he guessed that was how she was hurt. He gave a demonstration by which he lifted his forearms upwards with the crutches remaining attached to the upper forearm. He was pushing out with his hands. When pressed by the prosecutor he said that he did not know, and perhaps the crutches did not make contact with her.

22 The appellant called Mark Nikoloski who testified that in early February he recalled visiting the appellant and observed him on the sofa with his leg resting and bandaged. He had crutches beside him.

23 The appellant also called Daniel Caro who testified that in January he had visited the appellant and had seen him with his leg bandaged and crutches next to him. However, he testified that the day he saw him was the afternoon of a day upon which the appellant had said that his wife and come and fought him and jumped on him. This would suggest therefore that he was talking about the very day of the event.

24 The learned Magistrate gave reasons for his decision. He began by pointing out that the prosecution had to prove each element of the offence beyond reasonable doubt. He added in clear and unequivocal terms "there's no onus on the accused to establish anything in his own favour".

25 The learned Magistrate then pointed out that this was a case in which there were two "totally and diametrically opposite accounts". He reviewed the evidence of the complainant and Mr Stonham and then turned to the evidence of the accused. He reviewed that evidence and said:

"In a situation such as this, where there's such a clear difference between the accounts, it's for me to assess the witnesses as they're giving evidence and try and determine as best I can whether the witnesses are both truthful and accurate."

26 The learned Magistrate then rejected the evidence of the accused saying:

"... I have absolutely no hesitation in rejecting what the accused says as a total fabrication, a figment of his imagination."

27 A clear finding was made that the complainant and Mr Stonham were credible witnesses who gave their evidence unequivocally, with no hesitation and no prevarication. The learned Magistrate added in relation to Mr Stonham "there has been no suggestion to Stonham that he's motivated to lie".

28 After repeating that the evidence of the accused was "just total rubbish, unequivocal nonsense" and was rejected in its entirety, the learned Magistrate added the following important words:

"It's not sufficient for me to just say, look, I believe Riverola and not him. The question still remains, has the prosecution proven the case beyond reasonable doubt and the answer is a clear and an unequivocal yes.

The facts are that Georgalina Riverola went there to collect her child, legitimately and for good reason. She was outside the premises, she never once went anywhere near the front door of the premises, she was never once inside the premises, as is alleged. The accused came out and he assaulted her by grabbing her to the neck, causing the marks which are shown in the photograph. As I said, this - - this charge is proven beyond reasonable doubt."

29 The ground of appeal contends that the learned Magistrate "in effect" imposed a duty on the appellant to prove his innocence, rather than putting the prosecution to proof beyond reasonable doubt of the elements of the offence.

30 In my view the ground as so expressed cannot be made out. I say that because the learned Magistrate twice made it clear that he understood the need for the prosecution to prove the case beyond reasonable doubt and stated unequivocally that there was no onus on the appellant to establish anything. Further, the learned Magistrate added that it was insufficient for him to simply conclude that he believed the complainant and not the appellant. The question still remained whether the prosecution had proven the case beyond reasonable doubt.

31 However, the ground is particularised with three particulars with which I should deal.

32 This particular contends that the learned Magistrate insisted that the complainant be recalled so that a proposition could be put to her that the defence case was that bruising to her neck had been caused by the appellant pushing her with his crutches.

33 I have reviewed the circumstances in which the appellant was recalled.

34 I do not agree that the learned Magistrate insisted that the complainant be recalled. It was counsel for the appellant who recalled the complainant. I have reviewed the circumstances in which that occurred. The learned Magistrate gave counsel for the appellant the option of leaving the case as it was in circumstances where he chose not to put to the complainant that her injury was occasioned by the appellant's crutch connecting with her throat. The learned Magistrate did not recall the witness. He did not actually invite counsel for the appellant to do so. Counsel took it upon himself to indicate that he would like the witness recalled. The learned Magistrate agreed and the witness was recalled. It was then put to her in clear terms that she had fallen onto the appellant at a time when he had crutches in his arms and that was how she had sustained her injury. This she denied.

35 I can find no miscarriage of justice occasioned by this procedure. The assertion that the learned Magistrate insisted that the complainant be recalled has not been made out.

36 This particular asserts that the learned Magistrate treated the case as involving a choice between whether the injuries were caused by the crutch or as alleged by the complainant. It is said that having dismissed the possibility that the injuries were caused by the crutch, the learned Magistrate proceeded to make a finding of guilt against the appellant.

37 I do not interpret the learned Magistrate's reasons in this way.

38 The learned Magistrate noted that the complainant contended that she had been grabbed by the throat or in the neck area and that her throat had been injured accordingly. A photograph revealed this. The learned Magistrate pointed out that the witness Mr Stonham confirmed this account.

39 The learned Magistrate summarised the appellant's evidence, including his evidence that he was holding crutches which caused a linear mark on the throat. As I pointed out, the appellant did not actually say this had happened, but said that "maybe" the crutches did not make contact with her at all.

40 In any event, the learned Magistrate considered the appellant's demonstration of the way in which he had his crutches applied on the day in question indicated the fallacy of his account. In other words, he concluded that he could not see how the crutches could have caused the injuries to the throat as it was contended they may have done.

41 In these circumstances, I am unable to see that the learned Magistrate treated the case as making a choice between how the injuries were caused and of making a finding of guilt against the appellant because he dismissed the possibility of the injuries being caused by a crutch.

42 To the contrary, the learned Magistrate found proven beyond reasonable doubt the account of the assault given by the complainant and Mr Stonham. The case turned upon the question of whether there had been an assault in the driveway of the house as alleged by the complainant and supported by Mr Stonham, or whether the door had opened and the complainant had come in and fallen on top of the appellant. It was the former account of events that the learned Magistrate found proven beyond reasonable doubt. That was the basis upon which he found guilt.

43 This particular asserts that in assessing the evidence of Mr Stonham the learned Magistrate was in error in stating that it had not been suggested that he was motivated to lie.

44 Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 establishes that the account of the complainant in a trial for a sexual offence can gain no legitimate credibility from evidence that the accused could not suggest a motive for her to lie. The case was concerned with a process of questioning in cross-examination where it was put to the accused that it would seem that he was "at an absolute loss to think as to why [the complainant] should make up the allegations".

"It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred (23). But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts."

The case was also concerned with the question whether the direction given by the learned trial Judge to the jury was capable of neutralising the prejudicial effect of the questions asked in the cross-examination of the appellant. To that extent it is an entirely different factual situation.

46 It must be remembered that the present case was one decided by a Magistrate where considerations are different to those which present themselves in jury trials. In J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365; (2000) 172 ALR 532 the Full Court of the Federal Court was concerned with the observations of a trial Judge determining, in the Federal Court, the question whether the appellant had engaged in conduct which involved contraventions of certain provisions of the Trade Practices Act 1974 (Cth). His Honour's observations included the following passage:

"I do not think these matters, either individually or collectively, provide a sufficient motive for the DFE witnesses to give deliberately false evidence against McPhee."

47 The Full Court observed that there was a distinction to be drawn between a trial Judge giving a direction to a jury along the lines of "why should the complainant lie" and a conclusion to that effect by a trial Judge. At [87] the Full Court said:

"The executives, in criticising his Honour's consideration of whether there was any sufficient motive for DFE witnesses to give false evidence, referred to authorities which, it was said, stood for the proposition that it was impermissible for a trial judge to give a direction along the lines of 'Why should the complainant lie?' as a reason for bolstering the probative value of the complainant in the prosecution: R v Jovanovic (1997) 42 NSWLR 520; R v E (1996) 39 NSWLR 450; R v F (1995) 83 A Crim R 502. These authorities were concerned with directions to juries and are not relevant to the present consideration."

48 In my view the same consideration applies to the decision of a Magistrate where the simple observation was made "there's been no suggestion to Stonham that he's motivated to lie". It was in my view permissible for the learned Magistrate to make this observation. What it meant was that there was no basis upon which the credibility of Mr Stonham could be put in question by any assertion to that effect.

49 As Murray J pointed out in Harman v Western Australia [2004] WASCA 230; (2004) 29 WAR 380 (at 385), it is permissible to put to a complainant questions concerned to establish whether or not he or she has a motive to lie to falsely implicate the accused, but by reason of Palmer v The Queen (supra) it is never admissible for the Crown to cross-examine an accused person about whether or not the accused can suggest any motive for the complainant to lie. Likewise, in a case where a trial Judge is summing up to a jury, it is essential that he take care not to leave the jury with any impression that the accused bears any onus to establish that the complainant has a motive to lie. In my opinion, that was not the situation in this case. Not only was it not a jury trial, but the learned Magistrate was not suggesting that the appellant bore any onus to establish that the complainant or Mr Stonham had a motive to lie. Nor did he suggest that a lack of any perceived motive to lie of itself justified the acceptance of the evidence of Mr Stonham. He simply observed that there had been no suggestion to Mr Stonham that he was motivated to lie. He described Mr Stonham in the following way:

"Stonham is a situation of what you see is what you get, a mechanic who told me in the bluntest of terms what his reaction was when he saw unfolding in front of him an assault committed by the accused on his former wife."

This indicates to me an acceptance of Mr Stonham as a credible witness from the manner in which he gave his evidence before the Court.

50 I am unable to find any substance in any of the particulars annexed to the ground of appeal which contends that there was a miscarriage of justice by reason of the appellant's conviction. I would dismiss the appeal.