Father appeals Magistrates conviction of contravening intervention orders and agravated assault.
BUZZACOTT v POLICE [2021] SASC 119 (22 October 2021)
The Magistrate convicted the appellant guilty of 13 charges, comprising seven counts of aggravated assault against his own child and spouse and six counts of contravening an intervention order. The appellant seeks that the trial Magistrate's finding of guilt with respect to all counts be set aside. The Court, in determining whether or not to grant the appeal, assessed the three grounds relied upon by the appellant.
Facts:
On 11 March 2021, the appellant was found guilty of 13 charges, comprising seven counts of aggravated assault against his own child and spouse and six counts of contravening an intervention order.
The appellant seeks that the trial Magistrate's finding of guilt with respect to all counts be set aside. Alternatively, the appellant seeks that the matter be remitted for retrial. First, the appellant asserts that the learned trial Magistrate erred in respect of the accused’s record of interview (ROI) by failing to properly or adequately direct herself as to the possible use of the evidence; or failing to provide reasons for rejecting the accused’s denials.
Secondly, the appellant asserts that the learned trial Magistrate erred in rejecting the defence submission that the extent of injury was not consistent with the description of force and number of blows to the complainant’s face.
Thirdly, the appellant claims that the learned trial Magistrate erred in rejecting in total the evidence of the witness Geraldine Buzzacott and/or failed to properly or adequately consider those aspects of the evidence of that witness which she had not specifically rejected.
The appellant was charged with six counts of aggravated assault against the complainant (‘CM’) (counts 1, 3, 5, 8, 10 and 12); one count of aggravated assault against his daughter (‘AB’) (count 7); and six counts of contravening a term of an intervention order (counts 2, 4, 6, 9, 11 and 13).
The aggravating circumstance alleged in respect of each of the charges of assault on CM was that the appellant committed the offence knowing that the victim was, at the time of the offence, a person with whom he was in a relationship. In respect of the charge of assault on AB, the aggravating circumstances alleged were that the appellant committed the offence knowing that the victim was, at the time of the offence, under the age of 12 years, and that the appellant committed the offence knowing that the victim was a child of whom he is the parent or guardian.
At trial, it was not disputed that at all relevant times the IIO was in force and that a condition of the IIO was that the appellant must not ‘assault, threaten, harass or intimidate’ CM. Nor was it disputed that at all relevant times CM was in a domestic relationship with the appellant and that the appellant is the father of AB.
Issue:
Whether or not the trial Magistrate’s reasons are inadequate.
Applicable law:
Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) s 20(3) - provides that a person who commits an assault is guilty of an offence.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2aa)(b) - provides that if a person contravenes a term of an intervention order (other than a term of an intervention order imposed under section 13) and either: (a) the contravention constitutes a second or subsequent such contravention; or (b) the act or omission alleged to constitute the contravention involved physical violence or a threat of physical violence, the person is guilty of an offence against this subsection.
Magistrates Court Act 1991 (SA) (the ‘Act’) s 42(1) - provides for the right to appeal against a conviction imposed by the Magistrates Court.
Frunks v Police [2016] SASC 120 at [11]- [12] - where the Court is required to undertake an independent review of the evidence and the findings, and form its own view as to the appropriate outcome.
Papps v Police [2016] SASC 120 at [11]- [12] - the Magistrate, in his reasons, dismissed as irrelevant significant aspects of the defendant’s evidence and that of his witness which were directly relevant to the credibility of the police witnesses.
Pell v The Queen (2020) 268 CLR 123 - emphasised that acceptance of a complainant as a credible witness is not, in itself, sufficient to prove an offence to the designedly exacting standard of proof beyond reasonable doubt.
Harwood v Police (1998) 71 SASR 300 at 304-6 - provides that a magistrate has a duty to give adequate reasons for decision in a contested matter and the failure to do so is an error of law.
Analysis:
The prosecution relied on the appellant’s statements in the ROI: ‘I never go for the stomach, I always go for the face’, and as to the Xbox controller: ‘Every time I threw it at the fucken floor’.
The prosecution submitted that the evidence was potentially relevant to show that the appellant had a propensity to punch others and to throw Xbox controllers. Ms Buzzacott had given evidence that the appellant did not own an Xbox controller on 5 January 2020. The trial Magistrate expressly stated in her ex-tempore ruling that the appellant’s ROI was not admitted for any propensity purpose; whether that be a propensity to punch people in the face or to throw an Xbox controller. The ROI was only admitted for the appellant’s statements as to the Xbox controller to establish that the appellant owned an Xbox controller on 5 January 2020.
The appellant submits that her Honour made no findings or assessments of the appellant’s denials, including as to his demeanour when first confronted with the allegations. The appellant’s denials in his ROI, whilst vehement and attended by statements that CM was ‘a liar’, were effectively bare denials; there was no alternative version of the allegations put forward which might have required elaboration as to why they were rejected. The trial Magistrate noted that CM’s evidence as to counts 5 to 9 was contradicted by Ms Buzzacott’s evidence in several ways, but rejected Ms Buzzacott’s evidence as unreliable to the extent that it differed from that of CM.
Defence counsel submitted that this inconsistency or implausibility in CM’s account should have caused the trial Magistrate to entertain a reasonable doubt on all counts. The trial Magistrate noted that defence counsel did not put to CM that if she had been assaulted in the manner she alleged, she necessarily would have sustained greater injuries. The appellant submits that CM’s account of the alleged assaults was inconsistent with the injury she sustained and should have raised a reasonable doubt. The trial Magistrate noted that CM was not cross-examined with respect to the appellant’s submission that her evidence as to the assault was inconsistent with the injuries she sustained.
Ms Buzzacott gave evidence that she did not see the appellant strike CM to the stomach. The trial Magistrate found that Ms Buzzacott’s evidence was unreliable because of her failure to observe an injury to CM’s eye on 5 January 2020; and her incorrect statement that the appellant (her son) was aged 17 as at 5 January 2020.
Conclusion:
The Court dismissed the appeal as the appellant has not demonstrated any error in the Magistrate’s approach or reasoning. The Court considered that the trial Magistrate’s reasons for implicitly rejecting the appellant’s denials in his ROI were not inadequate and as such dismissed the first ground of the appeal. The second ground of appeal is also dismissed as it has not been established that the purported implausibility of CM’s account of itself, or in combination with the appellant’s denials and Ms Buzzacott’s evidence, meant that it was not reasonably open for her Honour to convict the appellant of any charge. As to the third ground of appeal, the Court concluded that the trial Magistrate was not in error in finding that Ms Buzzacott’s mistake as to the appellant’s age undermined the reliability of her evidence.
