REID v POLICE No. SCGRG-99-979 Judgment No. S474 [1999] SASC 474

Supreme Court of SA|1999-11-11|Before: Martin J

1 MARTIN J. The appellant appeals against his conviction for assault occasioning actually bodily harm. The grounds of appeal complain that the verdict was unsafe and unsatisfactory and refer to a number of aspects of the evidence in support of that contention. In addition it is alleged that the learned Special Magistrate failed to give adequate reasons for his verdict.

2 At the outset of his reasons, the Magistrate reminded himself that the burden was on the prosecution to prove the charge beyond reasonable doubt. He found that the prosecution witnesses George Morrison and Richard Berlemon were honest and reliable witnesses. As to a third witness for the prosecution, Andrew Adrain, his Honour said he was impressed to a lesser extent with that witness and only accepted his testimony where it was consistent with the evidence of Berlemon.

3 The appellant gave evidence and called one witness, Helen Uzzell. His Honour said he had no hesitation in finding that "to a significant degree they were less than truthful". In addition, he said he was persuaded that to some extent they had based their evidence upon a reconstruction of the events rather than upon reliance on their memories. His Honour indicated he had decided to treat their evidence with caution.

4 Having made those findings with respect to the credibility of the various witnesses, the Magistrate set out at some length his findings of fact. In essence, his Honour found that following an argument and physical altercation between the appellant and Ms Uzzell in Mr Berlemon's residence, Mr Berlemon told the appellant to leave the premises. The appellant left through the back door and entered his motor vehicle. He reversed the vehicle into an adjacent street. When the appellant's vehicle was about half way through the gateway, Mr Berlemon started closing the gate. The appellant's vehicle reversed far enough to be clear of the premises with its rear wheels in the gutter of the adjacent street. The front of the vehicle was about six inches from the boundary of the property. His Honour then found:

"Berlemon brought the gate in line with the boundary and was about to drop the pin of the gate to secure it in a closed position when he heard the engine revolutions of the vehicle increase which caused him to look up towards the defendant who was seated in the driver's seat. The front of the car was about six inches from the gate with Berlemon behind the gate. The defendant accelerated his vehicle and deliberately drove into the closed gate. Berlemon was still holding onto the gate when the vehicle struck it. This impact caused the gate to be removed from its hinges and project Berlemon four to six feet back into the property. The gate landed about two feet to the right of Berlemon who was lying on the ground inside the premises. After striking the gate the defendant's vehicle travelled forward about two feet into the premises. Then the defendant reversed his vehicle into Harrington Street and left the area."

5 His Honour found that the appellant was angry and drove his vehicle into the gate with the knowledge that Berlemon was behind it. He specifically found it was the appellant's intention to collide with the gate and cause injury to Mr Berlemon. As a consequence of being struck by the vehicle and gate, Mr Berlemon sustained a fractured left arm.

6 A number of complaints were made about the adequacy of his Honour's reasons. The duty of a Magistrate in this regard was recently discussed by Duggan J in Harwood v Police (1998) 71 SASR 300 and it is unnecessary for me in the circumstances of this matter to discuss those principles in any detail. The extent of the reasons required depends upon the circumstances of each case. Of critical importance is whether the appeal court is able to ascertain the reasoning upon which the decision is based.

7 The issues before his Honour were straightforward. There was no doubt about the defence. The appellant said he stopped reversing his vehicle when the rear wheels entered the gutter because on previous occasions the tow bar had scraped on the bitumen when executing that manoeuvre. He then looked forward toward the verandah of the house and noticed Ms Uzzell waving with a gesture indicating that he should return. In response he attempted to drive the vehicle back onto the premises at a very low speed. The gate was open and he did not see Mr Berlemon. When the vehicle had moved forward a foot or a foot and a half "the gate just seemed to fling around and hit the front corner of my car". He said he was startled and instantly applied the brakes. He immediately reversed out of the driveway onto the road and drove home.

8 The choice for the Magistrate was clear. The simple issue was whether the Crown had proved beyond reasonable doubt that the appellant deliberately drove into the closed gate with the knowledge that Mr Berlemon was behind the gate. If accident as claimed by the appellant was a reasonable possibility, the appellant was entitled to be acquitted.

9 His Honour correctly directed himself as to the burden of proof. He made clear findings as to the credibility of the various witnesses to which I have referred. Those findings included a finding that the appellant and his one witness, Ms Uzzell, were less than truthful to a significant degree. It is clear that the basis upon which he arrived at his findings of fact was an acceptance of the key Crown witness and a rejection of the appellant and Ms Uzzell. His findings of fact clearly demonstrate that he rejected the appellant's case beyond reasonable doubt. In finding that the appellant deliberately drove into the closed gate with the intention of colliding with the gate and causing injury to Mr Berlemon, his Honour obviously rejected the possibility of accident and the possibility that Mr Berlemon was the author of his own misfortune. In these circumstances it was unnecessary for his Honour to add the specific words that he rejected the evidence of the appellant and Ms Uzzell beyond reasonable doubt or that he rejected the possibility of accident and the possibility that Mr Berlemon was the author of his own misfortune. The grounds of appeal based generally upon the adequacy of the reasons fail.

10 During cross-examination of Berlemon, he was asked whether he had seen the appellant throw a glass of drink on the appellant's girlfriend during the evening preceding the incident in question. Berlemon said he did not observe the incident but had heard about it. He added that the appellant had previously smashed pot plants in Berlemon's back verandah during one of his "violent states". The appellant now complains that the Magistrate failed to mention whether or not he took into account the evidence concerning the violent disposition of the appellant.

11 In my view there is no substance in this complaint. In some circumstances it is necessary for a Magistrate to explain in reasons the manner in which evidence has or has not been used. In a judgment delivered today in Kotz v Police [1999] SASC 399, I expressed the view that because of the complicated questions concerning the use of highly prejudicial evidence led in that matter, it was necessary for the Magistrate to explain the use that was made of the evidence. Harwood v Police is also a good example of the circumstances in which it was necessary for the reasons to disclose the use of evidence. In this matter, however, there was only a brief reference to the previous violence and it assumed no significance in the remainder of the trial. As explained, the evidence and issues were straightforward and, while it would have been preferable if his Honour had specifically referred to this item of evidence, his failure to do so is not a defect of the type that calls for interference by this Court. I have no doubt that his Honour was well aware of his responsibility to act only upon the evidence concerning the incident in question.

12 The final attack upon the adequacy of the reasons concerns his Honour's failure to deal with the behaviour of the appellant after the incident. Berlemon said that after the incident the appellant reversed the car and "tore off up the road". The appellant said he reversed back onto the road and drove home. He denied squealing his tyres.

13 Although the appellant submitted that the evidence of flight was a "crucial issue", in his reasons the Magistrate did not mention the appellant's behaviour after the incident. It is clear that his Honour concentrated upon the evidence concerning the incident in question. The issue of the manner in which the appellant left the area was not of significance. In my opinion the failure to mention any finding as to the behaviour of the appellant does not render the reasons inadequate.

14 The final ground of appeal contends that the verdict was unsafe and unsatisfactory. A number of matters are raised in support of that proposition, but in my opinion none of the matters individually or in their cumulative effect raise any doubt about the reliability of the verdict. A determination of the issues before the Magistrate depended exclusively upon the credit of the witnesses. His Honour had the obvious advantage of seeing and hearing the witnesses and there is nothing in the evidence or his Honour's approach to the matter to suggest that he misused that advantage. In addition, my reading of the evidence has led me to the view that his Honour was correct. This ground of appeal fails.

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