Davis v Commissioner of Police [2015] QDC 253

DISTRICT COURT OF QUEENSLAND CITATION: Davis v Commissioner of Police [2015] QDC 253 PARTIES: NEVILLE GOODWIN DAVIS Appellant v COMMISSIONER OF POLICE Respondent FILE NO/S: D108/15 DIVISION: Appellate Jurisdiction PROCEEDING: Appeal against conviction ORIGINATING COURT: Magistrates Court, Southport DELIVERED ON: 9 October 2015 DELIVERED AT: Southport HEARING DATES: 24 & 25 August 2015 at Southport JUDGE: Judge CF Wall QC ORDER: 1. Appeal allowed. The conviction of the appellant in the Magistrates Court at Southport on 18 March 2015 is set aside. The matter is remitted to the Magistrates Court at Southport for re-trial before another magistrate. 2. The appellant is to file and serve written submissions as to costs by 4.00pm on 23 October 2015 and the respondent do so by 4.00pm on 6 November 2015. Any submissions in reply by the appellant are to be filed and served by 4.00pm on 13 November 2015. 3. The further hearing of the appeal, so far as costs are concerned, is adjourned to a date to be fixed. CATCHWORDS: APPEAL – new trial – summary conviction – credibility of witnesses – sufficiency of reasons given by magistrate – relevance of sub-issues to credibility findings. CASES: Fox v Percy (2003) 214 CLR 118 Bulsey & Anor v State of Queensland [2015] QCA 187 Devries & Anor v Australian National Railways Commission & Anor (1993) 112 ALR 641 Coghlan v Cumberland [1898] 1 Ch 704 Camden & Anor v McKenzie & Ors [2007] QCA 136 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 -- 1 of 15 -- 2 NRMA Insurance Ltd v Tatt (1989) 94 FLR 339 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 R v Hart (1932) 23 Cr App R 202 R v Kennedy (2000) 118 A Crim R 34 R v Teasdale (2004) 145 A Crim R 345 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 R v Callaghan [1994] 2 Qd R 300 Walker v Walker (1937) 57 CLR 630 COUNSEL: K A Mellifont QC for the Appellant M Franklin for the Respondent SOLICITORS: Ashurst Australia for the Appellant Office of the Director of Public Prosecutions for the Respondent Introduction [1] This is an appeal against the conviction of the appellant in the Magistrates Court at Southport on 18 March 2015 of an offence of unlawfully assaulting ASM on 31 October 2012. [2] The complainant was born on 5 January 2005, was aged 9 at trial and was being treated by the appellant, a consultant paediatrician specialising in behavioural management, in the presence of his mother, Mrs RM for behavioural problems. [3] Written particulars of the charge were as follows: “The defendant has asked the complainant child, who was getting anxious and agitated, to lay on his stomach, the complaint child complied. The defendant proceeded to sit on complainant’s child back. The complaint child started crying and was yelling at defendant to get off. The defendant started laughing and said: ‘When you stop throwing a tantrum and you calm down then I will get off.’ The complainant’s mother then stood up and stated: ‘I think this has gone far enough, come on A (complainant child) let’s go.’ The complainant child and mother then left the defendant’s office.” Summary of the evidence of ASM, Mrs RM and the appellant [4] The magistrate referred to the evidence of the complainant, his mother and the appellant as follows: Complainant – whilst lying on the floor the appellant turned him over onto his stomach and sat in the middle of his back. “He sat on me two times because I sat up two times”.1 He said he was crying while the appellant was sitting on him because “it really hurt”; “he was sitting on me, it was actually every time I was getting up I just wanted to go over to the toys and play what was in the room but he was just sitting on me every time I just got up out of the chair.”[sic] In cross-examination he said, in reference to this passage from his s93A statement “yeah, that’s true. That’s true what happened.” 1 p 6, s93A Statement, recorded on 21 February 2013 when ASM was aged 8, p 6, see also p 3 -- 2 of 15 -- 3 Mrs RM – the complainant was directed by the appellant to lie on his stomach on the floor and then the appellant sat on his lower spine causing ASM to start kicking his legs and to start screaming “get off, get off, you are heavy. It hurts, it hurts, get off me.” She said the appellant said “no I will not get off until you stop throwing a tantrum”. He continued to sit on ASM who continued to scream and started kicking his legs. The appellant “just kept sitting there”. Mrs RM became agitated and after 30-40 seconds said words to the effect “this has gone far enough. We are not getting anywhere and it’s time to go”. The appellant got off ASM and he and his mother left. She said the appellant did not sit over ASM but sat on him. Appellant – he was demonstrating to Mrs RM a commonly used method of restraint. He suggested to her that one way would be to have the child lie on his tummy and for her to squat over him and tell him that when he behaves you will let him up. While ASM was on the floor (face down) he placed one foot either side of him and lowered his buttocks over his buttocks so he could not rise from the floor. ASM tried to buck him off which caused him to lose his position so that he was now kneeling astride him. ASM said “get off me, you are hurting me” and he responded “I’m not touching you” and after about 20-30 seconds he said “you are calming down” so he was let up and went to his mother. He denied he was weight bearing on the child and denied that he sat on him. [5] An expert witness called by the prosecution, Associate Professor Kerry Sullivan, gave evidence that an accepted means of physical restraint is one which prevents the child from getting up (not sitting on the child) such as squatting over the child on the ground and telling the child to calm down (such as what the appellant said he was demonstrating). The “real issue” – “word against word” [6] The magistrate recognised at the outset that credibility was a crucial issue in the trial. He said that the prosecution’s case was “wholly reliant on the evidence of ASM and his mother”. Extensive written submissions by the defence were provided to the magistrate highlighting why their evidence was neither honest nor reliable. [7] In determining credibility the magistrate said he “had the opportunity to observe the demeanour of the various witnesses as they have given their evidence”. An appellate court must respect the advantages of trial judges “especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not”.2 [8] In Bulsey & Anor v State of Queensland [2015] QCA 187 at [58] Fraser JA (Atkinson and McMeekin JJ agreeing) said, citing Fox v Percy:3 “The governing principle is that appellate courts must make ‘proper allowance for the advantages of the trial judge’ but that if, having done so, ‘they conclude that an error has been shown, they are authorised, and obliged to discharge their appellate duties in accordance with the statute.” 2 Fox v Percy (2003) 214 CLR 118 at 127 [26] 3 Supra at [27] -- 3 of 15 -- 4 Appellate intervention is justified where it can be shown that the trial judge “has failed to use or has palpably misused his other advantages.”4 [9] The magistrate said:5 “The real issue for the Court’s determination is whether or not Dr Davis actually sat on AM’s back during the consultation on the 31st of October 2012 and remained here despite the child’s protestation, or did he merely squat over the child as he has deposed to in his evidence… This Court did not find his evidence worthy of credit. Accepting that the squatting over a child may well be an accepted technique to restrain a child who is out of control, clearly sitting on a child’s back is not appropriate. Throughout his evidence, this Court formed the – distinct impression that Dr Davis has reconstructed the events which took place in the confines of his consultation room on the 31st of October 2012 to suit his own purposes. Now that Dr Davis obviously realises that his conduct on this date was clearly inappropriate, he has provided a version of events which this Court rejects where his account conflicts with the evidence of Mrs M and the child AM.” (My emphasis) [10] Summarised the magistrate’s reasons go no further than this: (a) the appellant’s evidence was not worthy of credit (b) the appellant reconstructed events to suit his own purposes (c) the appellant’s account was rejected where it conflicted with the evidence of Mrs RM and ASM (d) the appellant’s assertion that he squatted over, not on, ASM’s back was rejected and the sitting on ASM was not as a result of the appellant falling off balance. [11] Ms Mellifont QC submitted that the magistrate misdirected himself when he described what “the real issue” was and she referred to the Benchbook direction to jurors6 where it is emphasised that cases are often described, as this was, as one of “word against word”. In a criminal trial though “it is not a question of making a choice between the evidence of the prosecution’s principal witnesses and the evidence of the defendant” as the magistrate here appears to have done. “The proper approach is to understand that the evidence of the prosecution’s principal witnesses was true and accurate beyond reasonable doubt, despite the sworn evidence of the defendant; you do not have to believe that the defendant is telling the truth before he is entitled to be found not guilty. One should be careful not to jump from a view that the defence evidence should not be accepted to an automatic conclusion of guilt” and this is what I think the magistrate did here. [12] He seems to have approached the “real issue” on the bases of “which version do I believe, which version do I accept” and that it followed from a rejection of the appellant’s evidence that the evidence of Mrs RM and ASM must be accepted. Such a process of reasoning is clearly wrong. Ms Franklin conceded that if the magistrate approached the matter “as a word against word rather than whether to 4 Devries & Anor v Australian National Railways Commission & Anor (1993) 112 ALR 641 at 647; see also Coghlan v Cumberland [1898] 1 Ch 704 at 704-5; 5 p 10 6 No 27.1 -- 4 of 15 -- 5 reject the appellant’s evidence and come back to the crown case, that is of course a fundamental error”7 but submitted that was not in fact the approach he took, rather he was saying “that the real issue for determination was whether the appellant actually sat on the complainant’s back and remained there despite the child’s protestations or did he merely squat over the child as he deposed”. With respect that seems to be the same thing.8 The appellant did not have to convince the magistrate that his account should be preferred. I am satisfied that the magistrate appears to have adopted a “word against word” approach and reasoned that because he disbelieved the appellant that meant he could accept the evidence of ASM and his mother. Also, the “do I believe the defence version?” or “did it happen as the defence says?” effectively reverses the onus of proof and places it on the defence whereas at all times of course it remains on the prosecution to prove its version beyond reasonable doubt; there is no onus on the defence to prove its version. Credibility and adequacy of reasons [13] The magistrate’s reasons for accepting the evidence of ASM and his mother went no further than saying that given ASM’s age, the difficulties and medical issues he faces and the lapse of time between the alleged offence and trial his evidence was largely consistent with his mother’s and that despite the many challenges and difficulties Mrs RM faces she was a witness of truth trying her best to recall events which she found both upsetting and confronting. Ms Franklin submitted these amounted to “quite a detailed assessment”9 of why the magistrate believed these two witnesses. I am unable to agree. No reasons were given for rejecting the appellant’s account of events. The magistrate said no more than what is summarised in para [10](d) hereof. [14] Before referring to some of the appellant’s evidence I should first mention some background evidence in relation to the three main witnesses. [15] Mrs RM first took ASM to see the appellant 3 or 4 years ago as he was experiencing behavioural problems that needed to be addressed. He had a very rare form of coeliac disease, ADHD and epilepsy with some seizures and his mother thought, possibly Asperger’s. She had taken ASM to see the appellant about 5 times. On 31 October 2012 Mrs RM felt ASM’s medical condition had deteriorated, his behaviour had escalated, he was self-harming. He was a handful at times, playing and running around with knives and scissors, being disrespectful at school and being aggressive with her, his siblings and other children at school and was not behaving in an appropriate manner. She said she was at her wits end. She thought the medication he was prescribed was inadequate. She was desperate to obtain help from the appellant to assist in the management of the complainant. During the consultation with the appellant, ASM was very loud and his behaviour was disruptive. Mrs RM said his medication, Ritalin LA had worn off. Prior to seeing the complainant the appellant could hear him in the waiting room. Mrs RM was using terse words to contain or attempt to contain his behaviour. He was running around the waiting room and being noisy; his behaviour was challenging. Also during the consultation ASM was being bossy and controlling. The appellant was 7 T1-75,76,84 8 T1-75,76,77 9 T1-78 -- 5 of 15 -- 6 exasperated in trying to communicate with Mrs RM and considered that ASM was sabotaging and destroying the consultation; his behaviour was disruptive. [16] The magistrate referred to evidence that Mrs RM also suffers from ADHD and was under the care of a psychiatrist at the time. Mrs RM said in evidence that she was “deaf, 20% hearing” and communicated by lip reading. He also referred to the appellant’s “impressive record as a paediatrician of some 30 years, his impressive record in the area of developmental and behavioural issues of children and his impressive qualifications”. [17] No reasons were given for finding that the appellant’s evidence was not worthy of credit and was to be rejected where it conflicted with the evidence of Mrs RM and ASM. Ms Franklin conceded that the prosecution at trial was unable to refer to any evidentiary issues which detracted from the appellant’s credibility.10 [18] The appellant gave evidence. He said he did not sit on but squatted over ASM who tried to raise his buttocks to bump him off. He was demonstrating this restraint technique to Mrs RM. He possibly said to her that you “sit on him”. He denied any weight bearing. Defence counsel submitted to the magistrate that it was possible that if the word ‘sit’ was used Mrs RM somehow came to believe that this is what she saw.11 The same could apply to ASM. The appellant was barely challenged in cross-examination which was as follows: “Dr Davis is it true to say that your sitting on AM was not done as a diagnostic tool? --- I did not sit on AM and, no, it was not done as a diagnostic tool. Right. It is true to say that your sitting on AM was not done as a medical procedure? --- I did not sit on AM and it was not done as a medical procedure. Is it true to say that your sitting on AM was not done as a medical treatment? --- Yes. Is it true to say that your squatting on AM was not done as a diagnostic tool? --- Yes. Is it true to say that your squatting on AM was not done as a medical procedure? --- Yes. Is it true to say your squatting on AM was not done as a medical treatment? --- No. You say it was a medical treatment? --- Yes. How is it you say it was a medical treatment? --- It was a technique I was demonstrating to his mother to assist her in controlling --- regaining control of behaviour, which was out of control and dangerous. Have you ever used this type of medical treatment on a child previous to the demonstration you provided on 31 October 2012? --- No. Have you used the technique of squatting on a child since 31 October 2012 as a medical treatment? --- No. Why’s that? --- It hasn’t been necessary to deal with that. Why is it on this particular occasion you’d decided to use a treatment you’d never used before and have never used since? --- This occasion the child was significantly disruptive and violent in the consultation 10 T1-81 11 Magistrates Court Transcript 3-47 -- 6 of 15 -- 7 room and there was an inability of the mother to give me her advice as to what she would do when similar out of control behaviour occurred at home.”12 [19] The magistrate gave no indication that he considered the scenario put to him by defence counsel in relation to misinterpretation by Mrs RM as to what was happening as a result of what the appellant said to her. In his address to the magistrate the police prosecutor submitted that if the appellant did not in fact sit on ASM, squatting over him as a restraint technique would be sufficient to constitute the offence.13 [20] In Camden & Anor v McKenzie & Ors14 Keane JA, with whose reasons McMurdo and Douglas JJ agreed said: “[28] His Honour approached the determination of the case on the basis that the issue as to what representations were actually made depended on his assessment of the credibility of the appellants and the first respondent. In this regard, his Honour said: ‘I formed views on the credibility of each of those three persons as each gave his or her evidence. I am now firmly of the view that, so far as credibility be concerned – and therefore the acceptability of the evidence of those three persons be concerned – the evidence of [the first respondent] was the more credible and therefore I accept his evidence in preference to that of [the appellants]. [29] The appellants submit that these reasons were inadequate. It is well-established that a ‘failure to give reasons which ought to be given amounts to appealable error’. It can be seen immediately that the learned trial judge has not adverted to the conflict between the evidence of Mr Tilby and that of the first respondent or to the documentary evidence upon which the appellants relied. [30] The appellants contend, with the support of the decisions of the Court of Appeal of New South Wales in Beale v Government Insurance Office of New South Wales and Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2), that adequate reasons for judgment will refer to the evidence which was important to the determination of the matter, and will set out material findings of fact, giving the judge's reasons for his or her findings of fact, and stating the basis on which the judge has come to prefer one body of evidence over a competing body of evidence. [31] As a general rule, observance of these requirements is necessary to demonstrate that litigation has been determined fairly and rationally. Adherence to these requirements ensures that rights of appeal are not rendered meaningless, 12 Magistrates Court Transcript 3-9,10 13 Magistrates Court Transcript 3-57,58 14 [2007] QCA 136 at paras [28]-[31], [34]-[35] and [38] -- 7 of 15 -- 8 and that a party affected by a decision adverse to his or her interests is not left with a justified sense of grievance that the case has not been properly considered. In short, these standards promote the conscientious public discharge of the responsibilities of a judge to litigants, as well as to the community, which has a vital interest in the integrity of the judicial process. [34] Usually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation. In Goodrich Aerospace Pty Ltd v Arsic, Ipp JA, with whom Mason P and Tobias JA agreed, explained: ‘It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: 'I believe Mr X but not Mr Y and judgment follows accordingly'. That is not the way in which our legal system operates … Often important issues of credibility involve sub- issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub- issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent.’ [35] Similarly, in Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2), the Victorian Court of Appeal said: ‘The duty to deal with facts or evidence is not absolute. The evidence must be significant in the sense that, unless disposed of, it stands in the way of the court's conclusions. The court need not deal in terms with evidence when its importance falls away because of the manner in which the court disposes of the case. Nevertheless, if evidence is significant, it is not to be peremptorily shunted aside or ignored.’ [38] In my respectful opinion, the learned trial judge's reasons erroneously failed to deal at all with evidence which was material to his Honour's determination of the case. The -- 8 of 15 -- 9 oracular expression of a favourable view of the first respondent's credibility was not a satisfactory basis for the decision in favour of the respondents.”15 (Footnotes omitted) [21] The magistrate “peremptorily shunted aside” the appellant’s evidence and provided no explanation for doing so. [22] Having rejected the appellant’s evidence the magistrate was then required to go back to the evidence of ASM and his mother and determine whether this evidence was true and accurate beyond reasonable doubt despite the appellant’s evidence. With respect his Honour did not do this. He seems to have jumped from rejection to acceptance because of rejection and that is an impermissible line of reasoning. In deciding whether to accept the evidence of ASM and his mother it was incumbent upon the magistrate to consider the evidence which appeared to detract from their credibility. Other evidence relevant to credibility [23] The following evidentiary issues were capable of impacting on the credibility of ASM and his mother. (a) Consistency of evidence [24] The magistrate found that ASM’s evidence “was largely consistent16 with the evidence of his mother, given the lapse of time since the subject event. This is likely a reference to the evidence he gave in court on 9 October 2014 rather than also to his s93A Statement which was recorded on 21 February 2013. This is a curious finding given the fact that the written submissions by defence counsel highlighted in detail the respects in which his evidence was inconsistent with that given by his mother. [25] In this respect the defence emphasised the following evidence given by ASM: “You were saying17… if he was sitting on you, you just couldn’t move, you couldn’t get up could you? --- No, whenever I tried to stand up, he just was --- he just went over and ran over and sat on me and I just [indistinct] to go over at the toys. So you were lying there and he’d come over every now and again and sit on you would he --- yeah, pretty much and then he will just carry me back and sit on me from my mum. So, what, he sat on you and he went back to his chair? Is that what happened? --- Yeah. And then you tried to get up --- ? --- He --- --- and then he’d run over and sit on your again? --- Yeah. And then he’d go back to his chair. You’d try to get up again and he’d run over and sit on you again? --- Yeah. How many times did all that go on for? --- About 50 times. Okay? --- I just wanted to play with some toys, okay? Okay. What did you mean when you said to the policewoman: 15 See also the authorities referred to in para 3 of the appellant’s supplementary submissions. 16 My emphasis 17 In his s93A Statement -- 9 of 15 -- 10 But he was sitting on me every time I just got up out of the chair. ? --- So as soon as I’d get out of the chair, he’d just usually sits right on me. I see. Well, wait on, was he sitting on you in a chair when you were in a chair as well, was he? --- Yes. The other thing I want to put to you is this: and I’m saying to you that when you – when you say he sat on you, he asked you to go and lie down on the floor and that’s when he came over and sat over you? --- Yes. Yeah. Do you agree with me? --- Huh? Wait on? --- Yep. When you talk about him sitting on you – you with me here? --- Yep. I’m saying that he said to you ‘Just go and lie on the floor, A’ --- ? --- Yep. --- and then he came over and sat over you? --- Yep You agree with that? --- Yeah. He just grabbed me, threw me on the floor and sat on me. Well, you’re saying he grabbed you, threw you on the floor? --- Pardon? Are you saying he grabbed you and threw you on the floor? --- No, no he just grabbed me and just put me on the floor. All right? --- There was no throwing me. All right. Well, that’s what you’d said? --- I’m sorry. Well I’m saying to you, he asked you to lie on the floor and you did? --- No Okay? --- He just put me on the floor. Worst doctor ever, he is. RE-EXAMINATION Now, you said he put you on the floor, and, now, did he sat on you --- sit on you or did he sit over you? --- He sit on me… On me.”18 [26] This evidence was not referred to by the magistrate. It is not consistent with the account given by his mother and it is difficult to attribute any inconsistency to the lapse of time since the subject event. There were other inconsistencies referred to by the defence at trial in relation to what occurred before and after the subject incident and these also were not referred to by the magistrate. [27] The defence submitted to the magistrate (and to me) that the evidence of ASM and his mother was not consistent as between each other and was internally inconsistent compared with the evidence of the appellant which was consistent. Ms Mellifont QC submitted there were demonstrable inconsistencies in the evidence of ASM and his mother on objective analysis and there was other defence evidence which contradicted directly some of the evidence of Mrs RM.19 These arguments were not considered, or sufficiently considered by the magistrate in deciding whether the evidence of these witnesses provided a safe basis for preferring their evidence to that of the appellant. 18 Magistrates Court Transcript 1-52,53,54 19 T1-59,73. It was submitted to the magistrate (Exhibit CLSG para 87) that “in cross-examination, Mrs M unravelled”. -- 10 of 15 -- 11 [28] ASM also gave evidence that the appellant sat on him 20, then 50 times.20 Ms Franklin for the respondent conceded that if ASM was exaggerating in saying this, then it could reflect adversely on his credit. In the absence of reasons by the magistrate it is not possible to say whether this evidence was considered by him; he has certainly not referred to it. (b) Toilet issue [29] This occurred after the subject incident and involved consideration of whether, after Mrs RM had paid the bill and when she said that ASM needed to go to the toilet, the appellant said “I’ll take him to the toilet (or I’ll help him go to the toilet), I’ll flush his head down the toilet”.21 She admitted this wasn’t included in her police statement. The appellant denied he said this and called Carol McDonald his secretary to give evidence. She recalled the occasion. Mrs RM paid the bill. She then said: “What do you say to the – to this proposition; that after the consultation, A went out to go to the toilet and Dr Davis followed him out into the doorway and said ‘I’ll help him go to the toilet. I’ll flush his head down the toilet.’ Did that happen? --- I have no recollection of that happening, no. Bench: Just hold on? --- I would say no. Just hold it there. Thank you Ms Mellifont: Had those words been said by Dr Davis at a point, following A out the doorway? Is that something you would have heard given your proximity? --- Yes.” 22 She was not cross-examined. [30] The magistrate said of this evidence:23 “She has no recollection of Dr Davis threatening to flush the child’s head down the toilet after all the persons had departed from the consulting rooms. Given the lapse of time and her obvious busy role as a secretary no valid criticism could be levelled at her for not being able to recall specific events from that particular date…. While Mrs M admits she did not state in her original police statement that Dr Davis followed them out of the consultation room and said words to the effect, ‘I’ll help him to go to the toilet. I’ll flush his head down the toilet,’ I accept that this incident did also take place despite Ms Carol McDonald, Dr Davis’ secretary, who was also present in the vicinity, not being able to recall this incident and despite the denials of Dr Davis.” [31] Her evidence went further than merely saying she had no recollection of whether or not the appellant said the words; she in fact said had he said the words she would have heard and she didn’t hear him say such words. Ms Franklin acknowledged that the evidence of Ms McDonald was capable of reflecting adversely on the credit of Mrs RM and appeared to have been misunderstood by the magistrate but 20 Magistrates Court Transcript 1-47,52 21 Magistrates Court Transcript 2,20,47 22 Magistrates Court Transcript 3-20 23 Decision pp 8 and 11 -- 11 of 15 -- 12 submitted it would have been unlikely “to have changed his view”. The possibility exists though that it may have and it is clearly relevant to the credit of Mrs RM. The appellant denied he said such words and the evidence of Ms McDonald supported his evidence.24 (c) Distressed condition [32] The magistrate seems to have at least considered this to be relevant to the credit of Mrs RM and ASM in the sense that he referred to it in the context of demeanour. He said:25 “Following the incident, the Court finds that Mrs M did become upset when Dr Davis said to AM that he would not get off the child – not get off the child until he stopped throwing a tantrum and, having observed her child’s obvious distress, did in fact say to Dr Davis words to the effect, ‘I think we’ve had enough and I think it is time to go.’ Mrs M’s obvious distress at the incident continued when she left the consulting rooms, locked herself in the car, and, to use her words, ‘just lost it’ and started to cry. Her demeanour and that of her son, AM, as being in an agitated state has been confirmed in evidence by Mrs Patterson, Mrs M’s mother. And I accept Mrs Patterson’s evidence that her daughter was beside herself when she arrived home following the consultation.” [33] Ms Mellifont QC submitted that the magistrate may also have used the evidence as corroborative of the allegation that the appellant sat on ASM and it is possible he did that. [34] I am unaware of any authority extending the application of distressed condition beyond a complainant in a sexual offence.26 Ms Franklin conceded the evidence was not admissible “because it was not a sexual complaint or the like27 but submitted that because no objection was made to the evidence, the magistrate could use the evidence “to the extent of whatever rational persuasive power it may have” and she relied upon Jones v Sutherland Shire Council28cited in R v Callaghan.29 This statement is too broad. There are limits on the use which can be made of inadmissible evidence. Jones v Sutherland Shire Council was a civil appeal and even then limits were placed on the use of such evidence. R v Callaghan involved the prosecution putting into evidence a version of events which was in substance exculpatory and again limits were placed on its use. Walker v Walker30 also referred to in R v Callaghan involved family law maintenance and a letter between non- parties which the husband called for. Matters such as relevance, weight, reason and probative value still had to be considered. In my view though, because the evidence was not admissible in proof of the act alleged against the appellant or in support of 24 Ms Mellifont submitted the magistrate “mis-stated and/or misunderstood the evidence”, and that “it was not a proper reading of her evidence,” “then proceeded in an entirely flawed way in his factual finding and assessment of the credit of the witness” and “should have directed himself that the evidence was consistent with and supportive of the appellant’s evidence”. 25 Decision p 11 26 See Benchbook direction No. 62A 27 T2-15 28 [1979] 2 NSWLR 206 at 209 29 [1994] 2 Qd R 300 at 304 30 (1937) 57 CLR 630 -- 12 of 15 -- 13 the credit of the witnesses the only “rational persuasive power” it could have, if any, was as part of the narrative and even then its use for that purpose was extremely limited. I am not however satisfied that the magistrate only used the evidence to that limited extent. [35] Even if the evidence was admissible as part of the narrative (which I doubt) it could not be relied on as corroborating the evidence of the witnesses or as supporting their credit. Even as part of the narrative the magistrate should have considered whether there were other possible explanations for the condition of the witnesses such as a misunderstanding of what had happened. [36] In the circumstance I think it clear that the magistrate has at least used the evidence to support the credit of the witnesses and in this respect he erred. Ms Franklin conceded that it appears the magistrate did take account of the evidence “in terms of credit”.31 It is not possible to speculate as to the extent to which this error impacted upon his reasoning process. (d) Other issues [37] These include when phone calls were made, whether or not a rope was placed around ASM’s neck, whether Mrs RM had discussed ASM’s behavioural issues with Judith Peerling,32 the evidence of Professor Sullivan that the squatting over method of restraint was acceptable and the defence submissions in relation to photographs. For the magistrate to say for example “precisely why the photographs were taken is largely immaterial to this court, as is whether or not the rope was ever placed around the child’s neck as Dr Davis has not been charged with any offence concerning the rope-tying incident”33 is to completely overlook the relevance of these issues to credit as was submitted by the defence at trial. [38] In Soulemezis v Dudley (Holdings) Pty Ltd,34 Kirby P said: “This decision does not require of trial Judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the Judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a Judge to state generally and briefly the grounds which had led him or her to conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and has not been seen to be done.” 31 T2-15,16,17 32 Notwithstanding Ms Franklin’s submission the tendency today, especially in criminal trials, is to allow what may seem to be collateral credit issues to be raised where credibility findings are essential to the result. 33 Decision p 9 34 (1987) 10 NSWLR 247 at 259 -- 13 of 15 -- 14 [39] In NRMA Insurance Ltd v Tatt35 Samuels JA said: “It is, to my mind, impossible for a Judge to make a finding on credit in a vacuum, as it were, without relating the witnesses’ evidence, demeanour and particular circumstances to the other material evidence in the case…” Reconstruction? [40] In relation to the magistrate’s conclusion that the appellant reconstructed events to suit his own purposes, this was never put to the appellant when he gave evidence. Cross-examination of him included a question predicated on the appellant squatting on (i.e. over) ASM. In fact it is difficult to gauge from cross-examination whether the prosecution was alleging sitting or squatting. In his final address though the police prosecutor asked the magistrate to find that the appellant sat on ASM, consistent with the particulars. [41] In his final address the police prosecutor submitted that it would be “a fraudulent effort” on the part of the appellant to claim “that his actions were part of some sort of medical treatment”.36 As a result of this submission Ms Mellifont QC drew the magistrate’s attention to the fact that this was not put to the appellant as was the prosecutor’s duty if he was going to make such a submission and that the appellant’s evidence was largely unchallenged.37 She referred the magistrate to Precision Plastics Pty Ltd v Demir38 to the effect that if it had been intended to suggest that the appellant was not speaking the truth he should have been cross- examined to that effect so that he might have the opportunity of explanation. Alternatively it should have been made plain when he was giving evidence that his evidence was not accepted.39 [42] In the present case it is possible to see why the prosecution won but not why the appellant lost because the magistrate gave no reasons for why he disbelieved the appellant. He erred in this respect. The prosecution had not suggested to the appellant that his account of events was not true. His cross-examination left the matter in quite an equivocal position one way or the other. Ms Franklin conceded that the prosecution did not “submit that the appellant had reconstructed events”. She conceded that was a finding the magistrate “seems to have come to on his own and during the evidence of the doctor” which is apparent from what he said at p 10 of his reasons. She also conceded that his reasons for this conclusion “aren’t canvassed in full”.40 Conclusion [43] Notwithstanding the advantages associated with seeing the witnesses, the errors I have referred to are, in my view, sufficient to warrant that the decision to convict the appellant be set aside. Because of the conclusion I have reached as to the 35 (1989) 94 FLR 339 at 353 36 Magistrates Court Transcript 3-59. I think the effect of this was more than likely to follow from “a poorly chosen adjective” to use the words of Ms Franklin 37 Magistrates Court Transcript 3-60, 61 38 (1975) 132 CLR 362 39 R v Hart (1932) 23 Cr App R 202 at 207; R v Kennedy (2000) 118 A Crim R 34 at [36] & [37] and R v Teasdale (2004) 145 A Crim R 345 at [18]-[29] 40 T1-84,85 -- 14 of 15 -- 15 disposition of the appeal it is not necessary that I express conclusions on the various other grounds of appeal or credit issues argued on behalf of the appellant. Retrial or acquittal? [44] Ms Mellifont QC submitted that I should not order a retrial because that would be grossly unfair because the prosecution would have had a complete rehearsal. That though is often the case when a retrial is ordered. She also submitted that because of the various matters detracting from the credit of ASM and his mother a verdict of acquittal should now be entered because of a lack of credibility or reliability on their part. Because I have not seen them I consider it would not be appropriate or fair in the circumstances to adopt this course. Result [45] The appeal will be allowed. The conviction of the appellant will be set aside. The matter will be remitted to the Magistrates Court at Southport for re-trial before another magistrate. Costs [46] Ms Mellifont QC asked that if the appeal was successful I make no decision as to costs at this stage. [47] The parties agreed to written submissions. These will have to deal with both costs in the Magistrates Court and in this court. [48] I order that the appellant file and serve written submissions as to costs by 4.00pm on 23 October 2015 and the respondent do so by 4.00pm on 6 November 2015. Any submissions in reply by the appellant are to be filed and served by 4.00pm on 13 November 2015. [49] The further hearing of the appeal, so far as costs are concerned, is adjourned to a date to be fixed. -- 15 of 15 --