Rykiert v Maddock [2003] QDC 529

(2) That the learned Magistrate erred when making a factual determination on the relevance of the evidence of Neville Shipley;

(3) That the learned magistrate erred when she found the injuries of the complainant supported the complainant's version of events.

[3] The complainant gave evidence that he and the appellant owned neighbouring businesses at Moorooka and there was a continuing dispute between them about a tree on the complainant's footpath. He told the court that in the morning of 17 May 2000 he witnessed the appellant destroying the tree and went to speak to him about it. The appellant was standing on the footpath talking to Neville and Gary Shipley, men who worked at a nearby business. The complainant approached him and confronted him about the tree from a distance of about 25 feet. He said the appellant adopted a fighting stance and told the complainant he would fight him. He said the appellant then came towards him and assaulted him. The assault consisted first of three punches (two to the face and one to the stomach) after which the complainant fell to his knees. The appellant then kicked him in the ribs. The complainant fell to the ground and was kicked in the tailbone and the face and, it seems, twice more. The kicks were heavy, the appellant wearing rubber work boots. The appellant verbally abused him during the assault. He said the appellant then pulled him up by the shirt and told him to leave. The complainant said he made his way to his car, drove to his other business premises and sought medical attention.

[4] Dr Robert Cardwell gave evidence that he examined the complainant at the Princess Alexandra Hospital on 17 May 2000. The complainant exhibited tenderness on the left side of his rib cage and also the right upper temporal region. A chest x-ray showed a fracture of the left seventh rib. The rib injury appeared to be a recent injury. He said the injuries he observed were most likely from direct blunt trauma.

[5] Mr Dennis Kraft, a dentist, gave evidence that he saw the complainant on 22 May 2000. He noted chipped porcelain on two front teeth and a fracture to an upper right molar. He said there was obvious trauma to the complainant's mouth and the damage to the teeth could only be caused by direct trauma.

[6] It is convenient to deal first with ground 3. It challenges the following passage from Her Worship's ex tempore reasons:

"The Crown also had some - other evidence being photographic evidence of the injuries Doyle said that he sustained. And there was also medical evidence which supported Doyle's version of events as to how he was assaulted. That medical evidence being given by the doctor and also the dentist.

Clearly, I accept that Mr Doyle received injuries by - somehow or someone, and this evidence being supported by the doctor's evidence of what they observed including clinical observations as to a broken rib or X-rays of a broken rib and, by the dentists, injuries to - to teeth. And I accept that the injuries received by Doyle were consistent with an assault of punches and kicks to him."

[7] The argument of Mr Wilkin was that the injuries of which the doctor and dentists gave evidence was not consistent with the evidence of the alleged assault given by the complainant.

[8] Dr Cardwell examined the complainant within a few hours of the alleged assault. His findings are set out in para [4] above. Mr Kraft, the dentist, saw the complainant five days after the alleged assault, and his findings are set out in para [5] above.

[9] The thrust of Mr Wilkin's submission was based on this piece of cross-examination of Dr Cardwell:

"All right. Now what I'm asking you is this: is what you saw consistent with a vicious kicking with repeated numerous kicks to his upper body, tailbone and head, multiple times? - No."

[10] The fact is, though, that Dr Cardwell said that the temporal tenderness and the broken rib were consistent with blunt trauma, which obviously includes a kick or a punch. Mr Kraft's opinion on the dental damage was to the same effect. Of course it is possible that the dental damage was caused by the same blow that caused the temporal soreness, a point which was not explored.

[11] The result is, then, that the evidence of physical damage did not corroborate all of the punches and kicks of which the complainant gave evidence. But there are possible explanations for that, consistent with his having told the truth. Some of the blows may not have been as heavy as he described them; any consequent tenderness, swelling or discolouration may not have developed by the time the doctor saw the complainant. But the medical evidence was corroborative of at least two punches or kicks, one to the chest, one to the head and Her Worship could correctly act upon that consistency. I therefore find nothing of substance in this ground.

[12] This ground relates to the following passage in Her Worship's reasons with particular reference to the sentence I have underlined:-

"I then must consider the credit of Mr Doyle in relation then to these proceedings. I say that I found him to be an honest and convincing witness and I accept his evidence. During cross-examination, although unsettled and at times added some inadmissible comment of his own, he continued to be a convincing witness. I accept clearly he was assaulted and he was assaulted on the day. And I also heard that he complained to police on that day and on that day the evidence was that he nominated the accused."

[13] In cases where there is an alleged offence of a sexual nature an exception is made to the rule against the giving of self-serving evidence or the reception of hearsay. The complainant is permitted to give evidence of a reasonably prompt complaint of the commission by the accused person of the offence (which is self serving) and the recipient can give the same evidence (which is hearsay).

[14] But the effect of that evidence is limited to bolstering the credit of the complainant because it is what one might expect of the victim of a sexual offence. And conversely the absence of a reasonably prompt complaint can undermine the complainant's credit. But it is not evidence of the facts complained of and does not corroborate the evidence of the complainant. See, for example, Jones v R (1997) 71 ALJR 538-9.

[15] In the passage quoted in para [12] above Her Worship was not simply reciting evidence, as Mr Godbolt for the respondent submitted. She was clearly assessing the credibility of the complainant, the acceptability of which she recorded in her reasons two paragraphs later. Once that is recognised, it is impossible to escape the conclusion that she made unproper use of evidence of the complaint as corroborative of the complainant both as to the fact of the assault and, more cogently, of the identity of the assailant. That is a critical error which cannot be allowed to stand and must lead to the appeal being allowed.

[16] Ground 2 alleges Her Worship's failure to advert to the relevance of Neville Shipley's evidence and is based upon the following paragraph in her reasons:-

"Mr Shipley gave evidence, and he saw nothing on the day. Whether or not Mr Shipley was being honest may not be a matter that I need to resolve, other than to say that the accused Doyle - sorry, the complainant Doyle gave evidence of Mr Shipley's presence at the outset of the dispute between him and Rykiert on the day. He said that he and Rykiert were some 25 feet away. He then says Rykiert came to him. It may be that Mr Shipley left and did not witness the assault which I accept occurred."

[17] On the complainant's evidence Shipley was actually in the company of the appellant when the complainant was some 25 feet away. The appellant was abusive and threatened violence, a threat he forthwith carried out by advancing and attacking the complainant. In the complainant's cross-examination he accept the suggestion that the assault must have occurred "right under the nose of ... Neville Shipley"; that he "couldn't have missed it". It was then clearly put to him in cross examination that the assault did not occur, which of course he denied.

[18] Shipley was approached by two female police officers for a statement on the day of the alleged assault. He said in evidence he told them he had seen nothing untoward on that day, that he had not seen the complainant that morning but had seen the appellant drive past. He had not seen the appellant "belting up" the complainant. In cross-examination it was put to him that he had witnessed the assault, which he denied.

[19] So the credibility of Shipley was squarely in issue. On his evidence he had not even seen the complainant that morning and certainly had seen no assault. The prosecution case, from the evidence given in cross-examination by the complainant and from what the prosecutor put to Shipley, was that he was an eye-witness of the assault.

[20] It is trite law that enormous respect is given to the undoubted advantage enjoyed by the trial tribunal, which has the advantage of seeing and hearing the witnesses, in making findings of credibility. See, for example, Devries v Australian National Railways Commission (1992-3) 177 CLR 472 at 479. In general, before the finding can be upset it must appear that the trial judge "failed to use or palpably misused" that advantage, ibid.´

[21] I am persuaded that this aspect of the appeal has revealed a failure to use the advantage or a palpable misuse of the advantage. When a clear conflict relating to the evidence of a witness on a material point is revealed, the tribunal must face the conflict and resolve it.

[22] Thus it was necessary to decide whether Shipley was an honest witness. If honest, could he have been mistaken? It must be said that it would have been highly unlikely that he was mistaken about a sudden violent assault by a man on another man (both of whom he knew) a few hours earlier. For Shipley to physically leave the scene before the assault and thus fail to see it would seem to be a highly unlikely event and any way is contrary to the evidence of the complainant that the assault took place "under his nose". Nor was such a sudden departure even investigated in the evidence. Furthermore his evidence was that there was no meeting with the complainant at all that day and it is unlikely that he could have been mistaken about that. The cross examination did not lay any basis for such a conclusion. So that leaves only the possibility that he lied in evidence.

[23] There was the bland putting by the prosecutor to Shipley that he had witnessed the assault, but no groundwork was laid to suggest that he was a liar. If the tribunal decides to reject the clear evidence of a material witness, there is a duty to indicate why it is rejected. The conclusion I reluctantly arrive at is that Her Worship simply did not come to terms with the conflict, other than the very gentle hint that she might not find him to be honest. But if that were the case she should have said why.

[24] When findings on credibility are accompanied by reasons in which error is detected, an appeal count may interfere, R v Free (1983) 2 Qd R 183 at 191-2. I consider that to be the case here and this provides another reason for allowing the appeal.

[25] The appeal is allowed. The conviction and penalty are set aside.

[26] Consequent on my decision to allow the appeal and set aside the orders made by the learned Stipendiary Magistrate, the appellant seeks an order for costs here and below.

[27] So far as the costs of the appeal are concerned the position is made quite clear by s 232(4) of the Justices Act 1888, which is:-

(a) the hearing or determination of an appeal in relation to an indictable offence that was dealt with summarily by justices."

[28] This was an appeal from a complaint brought by Constable Maddock that the appellant had committed an assault occasioning bodily harm, an indictable offence, which was dealt with summarily, so para (a) above, in terms, forbids any award of costs. Its specific provision overrides the general discretion to award costs conferred by s 226.

[29] The costs below are governed by ss 158 and 158A.

"(1) When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable."

[30] However that general discretion is circumscribed by the provisions of s 158A, sub-s (1) of which is:-

"(1) Despite section 158(1), justices who dismiss a complaint may make an order for costs in favour of a defendant against a complainant who is a police officer or public officer only if the justices are satisfied that it is proper that the order for costs should be made."

[31] There follow nine examples of the relevant circumstances to be taken into account. The only ones raised by the appellant (and in my view the only possible ones) are paras (b) and (c) which are:-

"(b) whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and

(c) whether the investigation into the offence was conducted in an appropriate way."

[32] It was submitted that in the lengthy period of some 13 months between the commencement of the investigation and the arrest of the appellant, there was ample time for Constable Maddock to investigate further the apparent differences between the statement of the alleged victim Mr Doyle and the statement made by Neville Shipley to Constable Maddock and other police officers at the outset of the investigation.

[33] This was not a case in which the investigating police completely failed to interview Shipley, an apparently material witness. Two female police officers did interview him and Constable Maddock later spoke to him on the phone. Constable Maddock apparently formed the view that the evidence of Mr Doyle, the aggrieved person, should be preferred. Given the presence of physical injuries apparently suffered by Mr Doyle, that could not be said to have been unreasonable.

[34] Paras (b) and (c) above refer to defects in the investigation, and as Mr Shipley was questioned that does not seem to have been the case.

[35] The prosecution did not call Mr Shipley, as a Crown Prosecutor might have felt obliged to do, but his evidence was put before the learned Stipendiary Magistrate by the defence and no complaint is made that the defence was thereby disadvantaged.

[36] Furthermore my decision to uphold the appeal did not turn on any finding that Mr Shipley's evidence was unquestionably to be accepted. In such a case it might be argued that for an investigating police officer to prefer another quite different account amounted to inadequate investigation. My decision on the point related to the learned Stipendiary Magistrates' apparent failure properly to consider Mr Shipley's evidence.

[37] In my view the appellant has not demonstrated that a proper exercise of the discretion under s 158(1) would be to award to the appellant his costs incurred below.

[38] I should record that I do not accept, as submitted by the respondent, that the question of the costs below is covered by s 232(4)(b) which is :-

(b) any proceeding preliminary or incidental to an appeal mentioned in paragraph (a)."

[39] In my opinion a preliminary proceeding to an appeal or a proceeding incidental to an appeal cannot be a reference to the summary trial from which the appeal is brought. It would be odd if the legislature denied to the appeal court the discretion which the court below can exercise under ss 158 and 158A. The proceedings referred to are intended to be applications to the appeal court (see for example s222(2A), 223(2)).

[40] I decline to make an order for the costs of the summary trial and I am unable to make an order for the costs of the appeal.