Higgins v Neesham [2004] ACTSC 96 (1 October 2004)

Last Updated: 29 October 2004

GARETH JOHN HIGGINS v MATTHEW DAVID NEESHAM

[2004] ACTSC 96 ( 2004) (1 October 2004)

APPEAL FROM MAGISTRATES COURT - appeal against conviction - appeal against sentence

CRIMINAL LAW - common assault - consideration of "accident" - onus and standard of proof - admissibility of tendency evidence

Crimes Act 1900 (ACT) ss 26, 345

Evidence Act 1995 (Cth) s 97

Magistrates Court Act 1930 (ACT) Pt 11, subss 214(2) and (3), s 218

Evidence Regulations, reg 6(2)(a)

Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209

Makin v Attorney-General for New South Wales [1937] UKHL 2; [1894] AC 57

Griffiths v R [1994] HCA 55; (1994) 125 ALR 545

Archbold 2001, Sweet & Maxwell, London

ON APPEAL FROM THE ACT MAGISTRATES COURT

No SCA 40 of 2004

Judge: Spender J

Supreme Court of the ACT

Date: 1 October 2004

IN THE SUPREME COURT OF THE )

) No SCA 40 of 2004

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ACT MAGISTRATES COURT

BETWEEN: GARETH JOHN HIGGINS

Appellant

AND: MATTHEW DAVID NEESHAM

Respondent

ORDER

Judge: Spender J

Date: 1 October 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal against conviction is allowed.

2. The conviction on the charge of common assault on 22 October 2003 is set aside.

3. The proceedings are remitted to the Magistrates Court for further hearing and determination.

1. This is an appeal by Gareth John Higgins from his conviction on a charge of common assault in the ACT Magistrates Court on 6 July 2004, and against the sentence then imposed which was that he be sentenced to three months imprisonment, suspended upon entering into a recognizance in the sum of $500 to be of good behaviour for a period of twelve months subject to the following conditions:

1. that [the appellant] will during the period of 12 months submit to the supervision of the Director of ACT Corrective Services or his delegate and in particular:

(A) To participate as instructed in psychological counselling and to attend at least twice per month or otherwise as the psychotherapist deems fit or until he or she discharges [the appellant] from further treatment.

(B) To undertake such assessment as the Director or his delegate deems appropriate at the alcohol and drug programme and to participate in such counselling as is deemed appropriate.

2. [The appellant] will during this period abstain from any illicit drug use and to this end will provide a urine sample for analysis as and when directed by the Director or his delegate.

2. Magistrate Lalor also ordered that the conditions of the recognizance not be published.

3. The grounds of the appeal against conviction are:

a. The hearing miscarried as a result of the learned Magistrate allowing tendency evidence in circumstances where there was no basis for doing so.

b. That the learned Magistrate took into account an irrelevant matter, namely tendency evidence.

c. That the learned Magistrate made a decision against the evidence and against the weight of the evidence.

d. There was no admissible evidence upon which the learned Magistrate could have been satisfied beyond a reasonable doubt that the appellant had committed the offence.

e. Conviction in all the circumstances was unsafe and unsatisfactory.

4. In the course of the hearing of the appeal, leave was granted to the appellant to amend the grounds of appeal against conviction by adding a further ground:

f. The learned Magistrate failed to direct himself properly on the onus and standard of proof on the issue of accident.

5. The grounds of the appeal on sentence are:

a. Both the sentence and conditions imposed were manifestly excessive under the circumstances.

6. The charge of common assault is an offence created by s 26 of the Crimes Act 1900 (ACT).

7. Appeals to the Supreme Court of the Australian Capital Territory from a conviction for an offence dealt with by the Magistrates Court exercising summary jurisdiction in criminal matters, lie pursuant to Pt 11 of the Magistrates Court Act 1930 (ACT) ("the Magistrates Court Act"). Subsections 214(2) and (3) of the Magistrates Court Act provide:

(2) In an appeal to which this section applies, the Supreme Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact.

(3) In an appeal to which this section applies, the Supreme Court shall -

(a) if it thinks it necessary or expedient to do so in the interests of justice -

(i) order the production of any document or other thing that was an exhibit in, or was otherwise connected with, the proceedings out of which the appeal arose, being a document or thing the production of which appears to it to be necessary for the determination of the appeal; and

(ii) order any person who was, or would have been if he or she had been called, a compellable witness in those proceedings to attend for examination before the Supreme Court; and

(iii) receive the evidence, if tendered, of any witness; and

(b) receive evidence with the consent of the parties to the appeal.

8. Section 218 of the Magistrates Court Act provides:

(1) On an appeal to which this division applies, the Supreme Court may -

(a) affirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or

(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order; or

(c) set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceedings to the Magistrates Court for further hearing and determination, subject to the directions the Supreme Court thinks fit.

(2) A judgment or order of the Supreme Court under subsection (1)(a) or (b) shall have effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly.

9. The matter was called on for hearing in the Magistrates Court on 23 March 2004 at 12.06 pm. The defendant, through his counsel, elected to have the matter dealt with summarily, and the evidence for the prosecution commenced at 12.08 pm. Jane Glenn, the next-door neighbour of the defendant's father, gave evidence of her observations on the evening of 22 October 2003 at about twenty past ten at night. Her evidence concluded at 12.16 pm and the defendant's father gave evidence from 12.17 pm until 12.36 pm. A statement of Constable David Matthew Neesham was tendered by consent, as was a photograph of the defendant's father taken on the evening of 22 October 2003.

10. The defendant, Gareth John Higgins, commenced his evidence at 12.38 pm and the evidence concluded at 12.45 pm. Submissions occupied from 12.45 pm until 12.54 pm. The learned Magistrate gave his decision at 2.07 pm and commenced:

The defendant in this matter is charged with assaulting his father on 22 October 2003. There is little dispute in the evidence, the only area being intent.

11. This statement is really a simplification of the issues before the Magistrate. It was contended for the defendant that "the real issue is whether that injury occurred accidentally or not". Whether a blow was intentional, or whether the application of force to the person of another was an accident, are not the same question. Counsel for the prosecution, in the course of his submissions, submitted:

... whether it was an intentional assault or whether it was done with reckless regard [sic] to what happened, nevertheless that assault did take place.

To which the Magistrate commented:

So what you are saying, that I can find it there was either deliberate intent to assault or there was reckless indifference as to whether an assault took place, is that what you're saying?

12. Whatever a "reckless indifference as to whether an assault took place" might mean, the reference to a reckless indifference has a relevance only in the context of the possible operation of accident. The notion of an accident involves both the concept of intention and the concept of foreseeability.

13. In Kaporonovski v R [1973] HCA 35; (1973) 133 CLR 209, Gibbs J (with whom Stephen J agreed) said at 231:

It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person.

14. The learned Magistrate then set out a summary of the evidence before him:

The prosecution led evidence from Jane Glenn, the next door neighbour to the victim, who said that at 10.20 to 10.25 pm she went to her car which was parked on the council strip in front of her house and she saw the defendant and his father sitting in the front of the father's car wrestling over something, and that they were tugging to and fro and the car alarm was sounding.

She said that as she walked towards the car she had in effect an unimpeded view of the front of the vehicle and saw the defendant with a clenched fist and he had his arm raised with the forearm level with his head. She was unable to recall which arm it was that was raised.

She then noticed the father's head recoil in a move sharply to the right. At the time she was about 15 feet from them and moving towards them. She said she inquired of the father as to his well-being and the defendant got out of the car and ran towards his father's house. The father contacted the police. In cross-examination the witness said she never saw any physical contact between the father and the son.

The father gave evidence that his son and he had gone to the local shops or service station to purchase cigarettes for the son. The son became agitated and tried to grab the keys for his father's vehicle. The father grabbed them and the son tried to get them from his father.

The father felt a blow to the side of his face, to the left side, between the top of his glasses and his nose. He stated that his son let go of the keys and went inside his father's house, saying to his father, "Just wait until you get inside."

He gave evidence that his son had been agitated and abusive prior to going to get the cigarettes and on the return from purchasing them turned off the ignition of the vehicle at one point. The witness, over objection, gave evidence of a previous assault which the prosecution sought to rely on as tendency and/or propensity evidence. In cross-examination the witness stated that he was unable to say whether the blow was occasioned by the defendant's elbow or some other part of his anatomy. He agreed that it could have been occasioned by the elbow and that the blow could have been accidental.

The defendant gave evidence and said that on the night in question he was in the car with his father and that an altercation took place in which he tried to grab the car keys. He was asked whether he had hit his father and said he couldn't recall doing so but that, "If I did, it was an accident." He said that he'd never intended to hit his father and he'd remember if he had intended to hit him.

In cross-examination he said he'd gone to his father's house at 5 or 6 pm, just on dusk, and he couldn't remember where he was prior to that. He said that he'd left his father's house with the police that evening. He couldn't remember whether he and his father had gone to the shops and all he could remember is that they went out in the car. He volunteered that he'd been up for three days at the time of the incident and that he was on drugs, abusing drugs, but that he wasn't on them now.

He denied he'd assaulted his father and essentially said that if he hit him, it was an accident.

15. This account of the evidence is a fair summary of the evidence, except in two respects. The first is that the Magistrate says that Jane Glenn "said that as she walked towards the car she had in effect an unimpeded view of the front of the vehicle."

16. Ms Glenn walked from her car which was parked outside her house on the council strip, and the defendant and his father were in the father's car parked in his driveway on the council strip area. She described the lighting as "darkish" and said that there was sufficient light to see inside the cabin of the car. She saw the clenched fist of the defendant and then the defendant's father's head recoil to the right, which was towards her. She says that at that time she was approximately 15 feet away and moving towards the defendant's father's vehicle.

17. In answer to a direct question, "where were you looking when you saw what you've described?", Ms Glenn said, "I was looking directly towards the driver's side of the car, I would have been at a 90 degree angle." At no time did Ms Glenn claim that she had, in effect, an unimpeded view of the front of the vehicle. Her view in fact was of the driver's side of the vehicle, and she said that "Terry [the defendant's father] was in the driver's side and Gareth [the defendant] was in the passenger side."

18. The second aspect in which it seems to me the evidence is mis-stated is the statement that "He [the father] agreed that it could have been occasioned by the elbow and that the blow could have been accidental." In fact, the defendant's father said in his evidence-in-chief:

Is it the situation that you recall that there was a struggle between you and your son in relation to the car keys?---That's correct.

And then you recall receiving a blow in the area that you've indicated?---Correct.

But is it also the situation that you're not sure whether that was done by the elbow or some other part of Gareth's body?--- No, I'm not, I'm not sure of that.

So your recollection is that it could have been the elbow?---It could have been.

And your recollection is that it could have been occasioned accidentally in the pursuit of the car keys?

To which the prosecutor said:

Well, I object to that question, your Worship. How is the witness to know whether something's accidental or not?

The Magistrate is recorded as ruling:

That's right. The question is whether it could have been occasioned accidental is not something I think that the witness could and should answer.

19. One of the unsatisfactory features of this appeal is that the appeal book certified as being correct by the former solicitors for the appellant and by the solicitors for the respondent contains, as an attachment to Constable Neesham's statement, a copy of a transcript of a tape recorded conversation between Constable Neesham and the defendant's father, which includes the statement "I don't know whether it was a punch or just his elbow, it may have been accidental, I don't know." Whether this transcript was properly before the Magistrate is not at all clear, but it seems to be the only likely basis for the statement that the father, in cross-examination said, the blow could have been accidental.

20. The Magistrate expressed the law to be applied and his conclusions very tersely:

At the outset, I should say the onus of proof is on the prosecution in criminal matters. Where's [sic] there's evidence both from the prosecution and the defendant, it's not sufficient merely to reject or accept the evidence of one party. Where exculpatory evidence is led on the defendant's behalf, the question is not whether it's to be preferred to the prosecution evidence, but whether in light of it the prosecution had proved its case.

Even if the evidence for the defence is not positively believed, the question still remains whether the prosecution has discharged its onus to the requisite standard. Where there's a question of credibility, as with the evidence of the son in this matter, I have to make findings and to do this I have to assess the honesty, accuracy of observation, reliability of recall and reliability generally of the witness. In doing so, I am unable to accept the defendant's assertions that he didn't intend to assault his father. His recall of the incident is vague and unconvincing, clouded no doubt by his lack of sleep and the effect of the ingestion of illicit substances.

I am unable to accept that he remembers that he no intention to assault his father. I accept the evidence of the witness, Jane Glenn, that she saw the evidence [sic, the defendant) with a closed fist. She saw the father's head recoil immediately afterwards.

I accept the uncontradicted evidence of the father and the untested [sic] evidence that the son was agitated and abusive and that he tried to grab the keys on the way home from the cigarette purchase. The father was further not cross-examined on the statement made to him by the son, "Just wait until you get inside." I take this to be a threat of violence towards the father and a continuation of what had occurred in the vehicle. (Emphasis added)

21. The Magistrate expressed his conclusion:

I find the offence proved and in doing so state explicitly that I have not had any regard in making this finding to Exhibit A, the notice of intention to adduce tendency evidence and the evidence called and described as tendency or propensity evidence. The offence is proved.

22. It is convenient to deal first with the first two grounds of appeal, which concern the admission by the learned Magistrate of tendency evidence and the assertion that he took that evidence into account.

23. The prosecution had given notice of intention to adduce tendency evidence, referring to s 97 of the Evidence Act 1995 (Cth) ("the Evidence Act") and Reg 6(2)(a) of the Evidence Regulations. The evidence, notice of which was given, was:

About 10.15 pm on 6 September 2003, Gareth John Higgins assaulted Terence John Higgins by kicking him in the stomach area and abusing him and by punching him to the head, causing bruising to the left eye and nose, bruising to the right upper deltoid, grazing to the right elbow, a chipped front tooth and a laceration and bruising to the right eye, requiring stitches.

24. The prosecutor asked the defendant's father, in examination-in-chief:

Has Gareth ever assaulted you in the past?

25. Objection was taken to the question. The prosecutor referred to the letter giving notice of an intention to seek to adduce tendency evidence, and also indicated an intention to seek to lead relationship evidence. The prosecutor referred to s 97 of the Evidence Act, saying:

... it basically says that the evidence of the character, reputation or conduct of a person is not admissible unless there's been reasonable notice ...

26. Counsel for the defendant said:

One swallow doesn't make a summer. It's ludicrous to suggest that one incident - a prior incident could be lead in a probative way for you to make a finding in relation to an allegation of assault in this occasion.

27. The prosecutor said:

I submit before trying to get in anything in relation to that your Worship has to be satisfied that if there is any evidence it does have significant probative value.

28. Counsel for the defendant said:

... the purpose of the notice is, to give details of [the particulars of the date, time, place and circumstances] so you and any other judicial officer deciding in relation to an objection can see from that whether there's significant probative value, ... when you read that notice it's insufficient and so you would rule that you wouldn't allow it.

29. The learned Magistrate said:

I'm against you, Mr Purnell.

And later:

... in my view the matters set out in the notice of intention to adduce tendency evidence set out clearly the date, time, place and circumstances of the allegation that's alleged to be the conduct to be adduced as tendency evidence. In those circumstances I allow the evidence to be called.

30. Section 97 of the Evidence Act does not provide for evidence to be admissible. Section 97 is concerned with inadmissibility. For evidence of a prior assault to be admissible, the evidence has to have significant probative value. That question does not appear to have been addressed. There is nowhere any indication of why the evidence of an assault on 6 September 2003 was held to be significantly probative of an allegation of an assault on 22 October 2003.

31. In Makin v Attorney-General for New South Wales [1937] UKHL 2; [1894] AC 57, Lord Herschell said at 65:

It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed to accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.

32. The question that should have been addressed, but apparently was not, was whether the fact that some six weeks before an alleged assault a person had assaulted the same person is relevant as bearing on the question whether the acts alleged to constitute the second charge of assault were accidental.

33. It may not be irrelevant that the defendant pleaded guilty to the first assault, which constitutes an admission of all the elements of the offence, whereas he pleaded not guilty on the second assault, so putting in issue whether the bodily contact was accidental or not.

34. In Archbold 2001, the learned authors say, concerning accident and mistake, when dealing with "similar fact" evidence:

Where mistake, accident or innocent association is in issue it is obvious that a lesser degree of similarity may be required, though the effect of the evidence must be equally compelling. In a note on the case of R. v. Lewis (P.A.), 76 Cr.App.R. 33, in 99 L.Q.R. 349, T.R.S. Allan takes as an example the case of R. v. Francis (1874) L.R. 2 C.C.R. 128, in relation to which he says:

"Where, for example, the defendant is accused of defrauding a pawnbroker by representing a worthless ring to be a real diamond ring, evidence that he has previously made untrue assertions to other pawnbrokers concerning the value of other articles is likely to be highly probative in relation to his defence of mistake" (at p.352).

35. In my view, the essential requirement for admissibility of the assault on 6 September 2003, namely, whether it had any significant probative value, was not the subject of a determination by the learned Magistrate, and the evidence of that assault should not have been led.

36. Nonetheless, the Court should accept the statement by the learned Magistrate that:

... I have not had any regard in making this finding to Exhibit A, the notice of intention to adduce tendency evidence and the evidence called and described as tendency or propensity evidence.

37. In my judgment there is nothing in the reasons of the learned Magistrate in finding "The offence is proved" that he properly directed himself to the onus of proof and standard of proof on the issue of accident. Once the issue of accident is raised, the burden of disproving it lies on the prosecution beyond reasonable doubt. As the judgment of Brennan, Dawson and Gaudron JJ in Griffiths v R [1994] HCA 55; (1994) 125 ALR 545 at 550 noted:

The burden of disproof that rested on the Crown was substantial, not merely formal.

38. Nowhere in the learned Magistrate's reasons is there a statement that it is for the prosecution to disprove accident beyond reasonable doubt.

39. The question of accident is not a matter of exculpation. Where there is evidence raising the issue of accident, a "prosecution case" necessarily involves the disproof of accident beyond reasonable doubt. It seems to me that the learned Magistrate did not approach his task in this way. What is required to be proved on the issue of accident is nowhere explicitly stated, but some of the observations of the Magistrate suggest a displacement of an onus to the defendant.

40. The Magistrate's essential reasoning consists of the following findings:

... I am unable to accept the defendant's assertions that he didn't intend to assault his father. ...

I am unable to accept that he remembers that he [had] no intention to assault his father. I accept the evidence of the witness, Jane Glenn, that she saw the evidence [sic defendant?] with a closed fist. She saw the father's head recoil immediately afterwards.

I accept the uncontradicted evidence of the father and the untested [sic] evidence that the son was agitated and abusive and that he tried to grab the keys on the way home from the cigarette purchase. The father was further not cross-examined on the statement made to him by the son, "Just wait until you get inside." I take this to be a threat of violence towards the father and a continuation of what had occurred in the vehicle.

... I find the offence proved.

41. I am satisfied that the Magistrate failed properly to direct himself as to the onus and standard of proof in relation to the central question of accident in this case, and the conviction cannot stand.

42. The state of the evidence before the Magistrate, in my opinion, is such that it would have been open to him, properly directing himself as to the onus and standard of proof in relation to the issue of accident, to have concluded beyond reasonable doubt that the defendant deliberately struck a blow to the left side of his father's face. This conclusion is a possible inference from the fact that the evidence of Jane Glenn that she saw a clenched fist of the defendant and the father's head immediately recoil. It is significant that the witness described no movement of the clenched fist, and was not asked any questions about where the fist was at the time that she saw it in relation to the father's head. It is also significant that the witness described her line of sight as directly at the driver's side of the vehicle, of which the father was the driver and with the defendant seated in the passenger side on the other side of the father; that the lighting was dark, it being about 10.20 pm on 22 October 2003 when the incident occurred; and there was no evidence as to whether the internal light of the father's vehicle was on or not. The witness was unable to say which hand of the defendant she saw, and she gave no evidence that she saw any movement of any "clenched fish".

43. Counsel for the respondent on the appeal invited this Court to make findings on the evidence that was before the Magistrate, but since any finding depends on the assessment of the evidence of the witnesses and the weight to be given to the evidence they give, it is impossible to make a fair determination on the transcript of the witnesses' evidence. It seems to me that the matter must be remitted to the Magistrates Court for retrial. Whether there is any retrial, in all the circumstances, is a matter for the Director of Public Prosecutions.

44. It is strictly unnecessary to consider the appeal against the severity of sentence, in the light of my conclusion that the conviction has to be set aside. I should, nonetheless, express my view that the sentence was plainly excessive. If the defendant was guilty of common assault on his father on the evening of 22 October 2003, it was a single blow in circumstances of a family dispute, where the 35-year-old son had three days of sleep deprivation and was clearly disturbed.

45. It is true that some six weeks before, a more serious assault had been committed by the son on the father, but that assault occurred also when the son was in a dysfunctional and disturbed state and in the context of a family or domestic dispute.

46. It seems to me that a monetary fine for a relatively small amount would be a perfectly appropriate penalty. A sentence of three months imprisonment, albeit suspended, is manifestly excessive. It does not appear that the Magistrate had regard to the provisions of s 345 of the Crimes Act 1900 (ACT) which provides that a sentence of imprisonment shall not be imposed unless, having considered all other available penalties, the Court is satisfied that there is no other appropriate penalty in all the circumstances of the case.

47. The Magistrate is not entitled to sentence the defendant on the basis that there had been non-compliance with an earlier good behaviour bond. The Magistrate was obliged to sentence him in respect of the offence which he had found proved, and for nothing else. The sentence that was actually imposed was, in my opinion, manifestly excessive.

48. The orders of the Court are:

(a) The appeal against conviction is allowed.

(b) The conviction on the charge of common assault on 22 October 2003 is set aside.

(c) The proceedings are remitted to the Magistrates Court for further hearing and determination.

49. As earlier noted, the question of whether a retrial proceeds is a matter for the discretion of the Director of Public Prosecutions, having regard to all the circumstances of the case.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Spender.

Associate:

Date: 30 September 2004

Counsel for the Appellant Ms J. Saunders

Solicitor for the Appellant Darryl Perkins Solicitors

Counsel for the Respondent Miss P. De Veau

Solicitor for the Respondent ACT Director of Public Prosecutions

Date of hearing 23 September 2004

Date of judgment 1 October 2004