Kim Louise O'Brien (Also Known As Suthern) v Robert Reece Wynn [1995] ACTSC 4 (13 February 1995)

SUPREME COURT OF THE ACT

KIM LOUISE O'BRIEN (also known as SUTHERN) v. ROBERT REECE WYNN
No. SCA68 of 1994
RICHARD THOMAS MUIR v. ROBERT REECE WYNN
No. SCA69 of 1994
Number of pages - 7
Appeal - Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Appeal - against conviction in Magistrates Court for assault occasioning actual bodily harm and entering a building as a trespasser with intent to commit an offence involving an assault on a person within the building - appeal by two of four co-defendants - weight attached to demeanour of witnesses - adverse findings against certain defendants - admissibility of fresh evidence - Magistrates Court Act 1930, sub-s.214(4) - evidence would not afford any ground for allowing the appeal.

Criminal Law - assault occasioning actual bodily harm - trespass with intent to commit an offence - appeal by two of four co-defendants.

Magistrates Court Act 1930, sub-s.214(4)

HEARING

CANBERRA, 1 February 1995
13:2:1995

Counsel for the appellants: Mr. W. Donald

Solicitors for the appellants: Macphillamy Donald

Counsel for the respondent: Mr. K. Whitcombe

Solicitors for the respondent: ACT Director of Public

Prosecutions

ORDER

The Court orders that:
The appeals be dismissed and the convictions, orders and sentences imposed by the Magistrate be confirmed.

DECISION

MILES CJ This is an appeal from conviction by Magistrate Ward of each of the appellants on charges of assault occasioning actual bodily harm and entering a building as a trespasser with intent to commit an offence involving an assault on a person within the building. The Magistrate convicted the appellants and two co-defendants on 25 July 1994. By consent the appeals are heard together as were the charges against all the defendants.

2. It is common ground that the appellants with their co-defendants entered the home of Alison Ingram at 14 Rouget Place, Calwell at about 3 a.m. on 23 October 1993 and that an incident occurred therein resulting in extensive bruising and other injury to Ms. Ingram. The two co-defendants have not appealed. There is no difficulty involved in referring to Ms. Ingram as the victim. The question is whether, on the evidence admissible against each of the appellants, she or he, as the case may be, was proved to have been guilty of the criminal conduct alleged.

3. The prosecution case was, as the Magistrate put it in his comprehensive oral reasons for judgment, as follows. The appellants in the company of the co-defendants, Michelle Gray and William Olssen, spent the night drinking at the Royal's Football Club at Weston and later at the Chisholm Tavern. There had been a falling out some weeks previously between Ms. Ingram and a Karen Duncan, a friend of the appellant Kim O'Brien, and another incident some time later between Ms. Ingram and the co-defendant Michelle Gray. Ms. Ingram was said to have been violent on these occasions. She was expected to be at the Chisholm Tavern on the night but by 3 a.m. she had still not arrived. The four persons went to Ms. Ingram's house in a car driven by a person identified in the evidence before the Magistrate only as Tony. All four persons except Tony approached the house and, after some banging on the front door, Ms. Ingram was woken from her sleep and opened the door. The four entered without permission and with the intent of beating up Ms. Ingram, which they each proceeded to do.

4. The case of the appellants was, first, that they did not enter with any intention other than to talk to Ms. Ingram and to protect the co-defendants in a non-violent way if the need arose during the discussions. Further, the appellants contended that there was in fact no violence on their part whatsoever, and that the only violence occurred between Ms. Ingram and Ms. Gray over a period of a few minutes, commencing immediately after the entry into the house. It was implicit in the defence case, although not strongly articulated, that Ms. Gray was acting in self defence. The issue of whether the appellants entered as trespassers was not really touched on either before the Magistrate or in the appeal. Counsel (and the Magistrate) appear to have approached the issue of unlawful entry in a broad sort of way, upon the basis that the evidence was such that, if the appellants were proved to have entered with the intention to assault Ms. Ingram, then any claim by the appellants that they had the right to enter or believed that they had such a right, was simply unsustainable.

5. The main witnesses for the prosecution were Ms. Ingram and a Mr. Russell Dalrymple, who was staying in the house at the time. There was also evidence from two neighbours, a police doctor and police who visited the premises. No admission was made by either appellant. The appellants and the two co-defendants gave evidence. The evidence of the co-defendants was admissible in the joint hearing both for and against the appellants. However, the Magistrate considered the two co-defendants to be liars. Their evidence accordingly can be of little assistance in the appeal and neither counsel relied on it in any substantial way. Any admission by the co-defendants was not admissible against the appellants and must be disregarded in this appeal.

6. It is obvious to the point of triteness that if ever there was a case in which the court at first instance had an advantage over the appellate court in seeing and hearing the witnesses before coming to a decision as to their credibility, this was such a case. The Magistrate, as he was duty bound, gave reasons for his decision in a reserved judgment delivered orally. Mr. Donald, counsel for the appellants, has taken me through those reasons with great care in order to support his submission that the Magistrate made findings of fact which are demonstrably wrong and that some of the reasons given by the Magistrate for some of the findings of fact cannot be supported. There is also an issue about the introduction of further evidence on the appeal from another person in the car, now known to be Ian Andrew Barclay, an issue I shall discuss later.

7. First, the question of demeanour of witnesses. Mr. Donald submitted that the advantage enjoyed by the Magistrate in relation to the assessment of witnesses was misunderstood by the Magistrate and that the error is displayed in his remarks on demeanour. The Magistrate prefaced these remarks with the observation that "the defendants win the demeanour stakes". He then went on to say that there was "no particular fault of demeanour" on the part of any of the defendants before him. He referred to some "deficiencies in demeanour" on the part of Ms. Ingram and Mr. Dalrymple, but then went on to remind himself that demeanour can be misleading and that "it is preferable to look to more objective features of a case to determine issues in dispute".

8. There is some superficial attraction in the proposition that if the matter was to be determined by weighing up the demeanour of prosecution witnesses on the one side with the demeanour of the defence witnesses on the other, then the observation by the Magistrate that the defendants won "the demeanour stakes" would have to lead to a finding of not guilty. However, it is quite apparent that the Magistrate used these words with gentle irony and that the rest of his observations make it abundantly clear that he correctly regarded demeanour as only one of the factors to be taken into consideration, and that whilst the demeanour of the defendants before him was of no assistance to the prosecution, there were some deficiencies in the demeanour of the two prosecution witnesses which needed to be taken into account. The Magistrate obviously considered that these were minor deficiencies, as he was entitled to do, and a reader of the transcript could hardly come to any different conclusion. Indeed, Mr. Dalrymple, ultimately assessed by the Magistrate as "a good, honest, robust witness", despite his deficiency in demeanour, appears to have displayed remarkable patience in responding to the various repeated suggestions made to him in extended cross-examination.

9. Next it was submitted that the Magistrate gave insufficient weight to the evidence of Ms. Ingram, elicited in cross-examination, that she had been involved in the two prior altercations with Ms. Gray and Ms. O'Brien. However, she did not concede that she was the aggressor on either of these occasions. It was also elicited from her during cross-examination that restraining orders had been made against her as a result of those prior events. She also said that those orders had been made in her absence and without her being heard. According to her evidence, the orders had been made after 23 October 1993. I make the observation that the fact that orders of this sort have been obtained against a person, presumably under legislation designed to curb domestic violence, are of little or no probative value and may be inadmissible in criminal proceedings against that person. They amount to nothing more than that allegations have been made on oath against that person and accepted and acted upon by the magistrate or other officer making a determination of any issue of fact necessary to found the restraining order. In any event, the Magistrate in the present case in his reasons indicated that he was fully aware of what was alleged to have occurred in the prior incidents but he refrained, as was perfectly proper, from making any decision about who was the aggressor in those prior incidents.

10. It was further submitted that the Magistrate paid insufficient attention to the admission by Ms. Ingram in cross-examination that a day or two after the events at her house she telephoned the appellant Muir and told him that for $20,000 she would discontinue the prosecution. She also conceded that she had initiated a claim for criminal injuries compensation. The Magistrate adverted to these matters in his reasons and observed that, whilst some claims for criminal injury compensation may be manufactured or concocted, that was not necessarily a reason for rejecting or having a doubt about the essential truthfulness of Ms. Ingram's evidence.

11. Other criticisms were made by Mr. Donald about inconsistencies in Ms. Ingram's evidence. However, the Magistrate gave express consideration to the more substantial of these criticisms and in particular the alleged inconsistency between Ms. Ingram's description of her injuries and the evidence given by Dr Czoban, who examined her at the Australian Federal Police Headquarters in Canberra on 25 October 1993. Ms. Ingram had given evidence that she estimated that she was struck or punched some thirty times and that one or both male defendants had dragged her in such a way that she was "choked". Dr Czoban's evidence was that he did not see signs of such a number of blows and that there were no signs of injury about the throat. The Magistrate dealt with this latter matter on the basis that Ms. Ingram was not talking about "a traditional strangling" but about being dragged in such a way that her hair and nightgown were wrapped about her throat. I accept that the thrust of Dr Czoban's evidence is that even if she had been "choked" in the way she described, one would expect that some external signs of injury would have been visible at the time of Dr Czoban's examination. However, on the whole, I see no conflict between Ms. Ingram's description of the incident and her injuries with the evidence of Dr Czoban's observations in any material way. The photographs in evidence are eloquent in this regard. So is the concession on behalf of the appellants that Ms. Ingram did in fact suffer actual bodily harm as a result of the incident. It is not unlikely, in my view, that a state of fear and shock at the time of the events led Ms. Ingram to believe that the incident occurred over a longer period of time and that the blows were more numerous than was in fact the case. The evidence of the neighbours as to the screaming heard from inside the house is also of relevance. Finally, there was no evidence of injury to either of the appellants or of their co-defendants.

12. It was further submitted that the Magistrate should have rejected the evidence of a neighbour, Mrs. Cecilia Kathleen Tracey, who said that she woke from her sleep to hear "several thumps on a door like a fist on a front door", and a very loud male voice saying "Open the door you effing slut", and that she also heard a female voice say "Who is it?" or "Who's there?". She then heard muffled voices and went back to bed. This witness was not cross-examined. Her evidence was consistent with the police evidence of damage to the lower half of a screen door and indeed of evidence in the defence case that the co-defendant Olssen had kicked the screen door before Ms. Ingram opened the front door to the house.

13. Another neighbour, Ms. Susan Nisbet, also heard "about ten bangs" as if on a wooden door with a fist or arm. She went out onto her front lawn. There was a light inside or outside Ms. Ingram's house across the road, and a street light nearby. She saw a male and a female come out of the house. She thought she heard a few voices from inside the house. She heard a woman screaming hysterically and heard words like "Alex why did you do it?" followed by continuous swearing and cursing. Ms. Nisbet was not cross-examined. It was submitted that there were material inconsistencies in the evidence of these two witnesses, and of course it is true that neither gave an account exactly the same as the other, but broadly speaking, as the Magistrate found, their evidence is consistent with the prosecution case and consistent with the evidence of the other prosecution witnesses.

14. Other criticisms were made by counsel of the Magistrate's reasons to the effect that they indicated a lack of proper judicial dispassionate approach. I have already referred to the reference to the "demeanour stakes". The Magistrate referred to an explanation given by the co-defendant Gray to the police as "ridiculous". The Magistrate in dealing with the memory of the co-defendant Gray relating to Ms. Ingram's address referred to "a night on the turps". The Magistrate said that he dismissed "out of hand" the suggestion by Olssen that between the Saturday and the Monday of the record of interview the person Tony had shifted house with the result that his whereabouts were unknown. There is also the finding to which I have referred that the co-defendants Gray and Olssen were "demonstrated liars". These were all findings expressed in strong language, but they were all open to the Magistrate, and the robustness of terminology used by the Magistrate does not, in my view, demonstrate lack of a proper judicial approach to the matters to be determined. Once again, it is to be emphasised that it was for the Magistrate to make an assessment of those who gave evidence before him and that if he found any witness to be a liar, there was every reason why he should say so in clear terms.

15. Of course, it is always possible that when trying a number of defendants together, a tribunal may run the risk of allowing adverse findings against certain defendants to affect findings relating to other defendants when they should not do so. Criticism is made of the Magistrate's finding that the visit to the house of Ms. Ingram was "a carefully thought out evener-upper", that is to say, that all defendants went to the house with the object of somehow getting even with Ms. Ingram because of what she had done in the two previous incidents with Karen Duncan and Michelle Gray. Whilst this conclusion might have been drawn more readily against the co-defendants Gray and Olssen (and the Magistrate's remark was made in the context of his findings against those co-defendants) it is less easy perhaps to see that it could be made out against the present appellants. However, motive was not a matter which had to be proved beyond reasonable doubt. There may well have been doubt about whether what was to happen had been "carefully thought" out by the appellants. Nevertheless, the readiness with which the appellants entered the house, the speed at which the attack on Ms. Ingram commenced and with which the four persons took their departure, the ferocity of the attack and the extent of injury all support the hypothesis that the entry was made with the requisite intent to commit an assault. As far as the two appellants are concerned, their intention before entry may have fallen short of an intention necessarily to personally engage in the attack, but it must be beyond doubt that entry was made by them in the expectation that violence would occur and that they were there ready to give assistance to one or both of the co-defendants.

16. The extent of the participation by each of the appellants in the attack on Ms. Ingram is also put beyond doubt by the evidence of Russell Dalrymple and it is significant that no criticism has been made of the Magistrate's summary of that evidence and no reason advanced why it should not be accepted. It is as follows:

"Mr. Dalrymple says that he woke up to yelling, screaming and
banging. He saw fighting going on in the lounge. He saw four
people attacking Miss Ingram, all of them were throwing punches
and kicks. From this point on his evidence mirrors that of Miss
Ingram. When she got away from the four and went down the
hallway he held back the defendants, Olssen and Muir. The two
female defendants got past him and again began attacking Miss
Ingram. Muir got past him also. Miss Ingram's daughter appeared
and Dalrymple said words to the effect that the attack was taking
place in the presence of the child. He said that this seemed to
bring the attack to an end and the four defendants left. He
recalls that at some stage during the invasion Olssen head-butted
the wall, causing a hole in it."

17. It is correct, as Mr. Donald submitted, that the Magistrate placed some significance on the absence of the person Tony and stated that no explanation was offered by the defendants as to why he was not called. For reasons unknown to me, the prosecution concedes for the purpose of the appeal that there was a proper explanation for the absence of this witness. However, I do not think that such an explanation, whatever it might be, vitiates the Magistrate's ultimate conclusions. It is however something to be taken into account by me to the extent that the absence of the person Tony cannot be taken to assist the prosecution case.

18. Application was made on behalf of the appellants for further evidence to be called in accordance with sub-s.214(4) of the Magistrates Court Act 1930. The evidence was that of Mr. Ian Andrew Barclay who was, I am satisfied, in the Philippines at the time of the hearing before the Magistrate. The requirement of the sub-section that the evidence was not adduced before the Magistrate, that there was a reasonable explanation for the failure to adduce it and that it would have been admissible in the proceedings before the Magistrate, are all satisfied. A statement by Mr. Barclay was annexed to an affidavit of Mr. Donald sworn in order to support the application to call the further evidence. Mr. Barclay's statement being unsworn it was difficult to arrive at a conclusion that another requirement of the sub-section be satisfied, namely that the evidence was likely to be credible. In the circumstances, Mr. Barclay gave evidence on oath upon the basis that a ruling would be made at a later stage as to the admissibility of that evidence. He said that he had been drinking with the four defendants from about 10 p.m. until 3 a.m. on the night, but there was no discussion about Ms. Ingram or going to her house until he was in the car being driven home. He said that in order to get to where he was living "we sort of drive past her (Alison's) house". During the journey he said that Michelle Gray said that she wanted to see Alison and "sort out" what had happened, that she "just wanted to go around to talk to Alison about what had happened". He said that the appellants did not enter into this discussion. He said that when they arrived at the house, the two co-defendants got out followed by the appellants at which stage Richard Muir said, "I don't like what is going to happen" and words to the effect of "I don't like Milly going in by herself". He said that he waited in the car, half asleep, heard "a little bit of yelling and screaming", the others came back into the car and drove him home. He said he heard nothing during the remainder of the journey about what had happened in the house or anything about a fight.

19. A substantial inconsistency between Mr. Barclay's sworn evidence and the statement annexed to Mr. Donald's affidavit is that in the statement he said that:

"Prior to leaving the tavern Milly had expressed a desire to
visit Allison. She stated that she wished to talk to Allison
about what had happened before. By this she meant the stabbing
of a person's four wheel drive tyre."

20. Under sub-s.214(4) of the Magistrates Court Act 1930 the Supreme Court is obliged to receive the further evidence tendered in an appeal if the requirements of para.(a) and (b) are met "unless it is satisfied that the evidence would not afford any ground for allowing the appeal". This appears to cast the onus upon the respondent to the appeal to show that the evidence "would not afford any ground for allowing the appeal". It is not clear what the words "afford any ground" mean. Having heard Mr. Barclay give evidence on oath, I find him a less than satisfactory witness. His evidence about what was said or not said in the car both before and after the arrival at the house of Ms. Ingram is unsatisfactory and unreliable. The only fact that could be established with satisfaction by Mr. Barclay's evidence relates to the presence of the driver Tony in the vehicle. If Mr. Barclay's evidence were admitted for the purposes of the appeal, it would establish, contrary to the finding of the Magistrate, that there was a person driving the vehicle called Tony. But that fact, in my view, is not sufficient to invalidate the decision of the Magistrate and not sufficient to raise a reasonable doubt as to the guilt of the appellants. The addition of that fact to the material before me on the appeal does not sufficiently alter the matrix of facts which would justify me substituting my own opinion as to the credibility of witnesses for that of the Magistrate. Accordingly, it would not cause me to have a reasonable doubt as to the guilt of the accused in accordance with the principles to be applied on an appeal from a conviction by a Magistrate. I therefore disallow the evidence of Mr. Barclay being given in the appeal.

21. The result is that the appeals are dismissed, the convictions, orders and sentences imposed by the Magistrate are confirmed.