Pagett v Hales [2000] NTSC 35

PARTIES:	PETER PAGETT

	v

	PETER WILLIAM HALES

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	JA 77 OF 1999 (9903732)

DELIVERED:	8 June 2000

HEARING DATES:	15, 16, 20, 21, 28, 29 and 30 March 2000

JUDGMENT OF:	Mildren J

REPRESENTATION:

Counsel:
	Appellant:	C McDonald QC
	Respondent:	J Lawrence

Solicitors:
	Appellant:	Ward Keller
	Respondent:	Director of Public Prosecutions

Judgment category classification:	B
Judgment ID Number:	Mil00221
Number of pages:	30

IN SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
No JA 77 of 1999
(9903732)		
Pagett v Hales [2000] NTSC 35

	IN THE MATTER of an appeal under the 	Justices Act

	BETWEEN:

	PETER PAGETT
		Appellant

	AND:

	PETER WILLIAM HALES
	Respondent

CORAM:	MILDREN J

REASONS FOR JUDGMENT

(Delivered 8 June 2000)

MILDREN J:
[1]	This is an appeal against conviction and sentence by the Court of Summary Jurisdiction which, on 8 October 1999, convicted the appellant, a Senior Constable of Police, of aggravated assault, imposed a sentence of imprisonment for four months and ordered the appellant to pay the prosecutor's costs of $4,000:00.
[2]	The principal facts as found by the learned Magistrate may be briefly stated.  On the evening of 28 August 1998, Mr Ian Kaye had been out drinking with friends.  At about 12:30 am on 29 August, he left a tavern in Mitchell Street in order to go to McDonald's Family Restaurant at the corner of Smith Street and Knuckey Street.  There is no finding that he arrived at McDonald's.  He was not substantially or severely intoxicated.  He was tired because he had been working long hours.  At 1:15 am he was found asleep by the appellant on a bench in the Smith Street Mall near the Westpac Bank.  The appellant and his partner, probationary Constable Wilson, were on duty.  Mr Kaye was roused by one of the police officers.  Mr Kaye attempted to telephone his wife using a mobile phone.  He was prevented from doing so because his wrist was seized.  He was apprehended and placed in the rear of a paddy wagon.  The apprehension took a period of one minute and fifty-four seconds.  Mr Kaye was not obstreperous, did not kick out to the police, or attempt to punch them or use bad language when he was apprehended as alleged by the appellant and Wilson.  Kaye was not arrested for any offence.  He was apprehended and placed into protective custody pursuant to s128 of the Police Administration Act.  The learned Magistrate was not satisfied that Kaye's level of intoxication was sufficient to justify that course.
[3]	Upon being placed in the police vehicle, Mr Kaye telephoned his wife.  He was, at this stage, agitated.  The vehicle was driven up the Mall towards Woolworths and then did a U-Turn and proceeded back towards Bennett Street and parked in the area of the Victoria Hotel in order to offer assistance, if needed, to another police unit in the area.  Mr Kaye was able to hear loud music probably issuing from the Victoria Hotel.  He started to feel claustrophobic and yelled out "fucking cunts".  He kicked the area of the cage closest to the cabin of the paddy wagon.  Mrs Kaye was able to hear him over the telephone yelling to the police to let him out.  She heard him say that he felt sick and claustrophobic, and yelling out "fucking cunts". She also heard noises which sounded like the inside of the cage was being kicked.  There is no finding as to how long the vehicle remained stationary.  Eventually the vehicle left the Mall area.  The appellant was driving.  Soon afterwards, Mr Kaye calmed down and ceased kicking the cage perimeter.
[4]	The police vehicle was driven to a place near some mangroves on Tiger Brennan Drive where it stopped.  Both the appellant and Wilson alighted.  Kaye told his wife on the telephone, which had remained open throughout:  "They've taken me somewhere dark"; "They are getting out", or "They are coming around".  The cage door opened.   Mrs Kaye heard a rattling or creaking sound.  She heard an aggressive male voice or voices.  She heard her husband say, "Oh, no".  The connection was then severed.  Mr Kaye saw the appellant at the cage doorway with a torch in his hand.  At this stage, Kaye's head and back were closest to that part of the cage adjacent to the cabin of the paddy wagon, although prior to that he had been lying sideways on the floor with his head closest to the door.  The appellant struck Kaye with the torch below the left knee and to the left forehead area.  The latter blow was made by either a stabbing motion so that part of the curved frame to the lens area of the torch struck Mr Kaye, or it was a glancing blow with part of the curved frame area of the lens striking the forehead. 
[5]	Mr Kaye lost consciousness.  He regained some sensibility at one stage and realised that the vehicle was moving.  He lost consciousness again and was revived at the Peter McAulay Centre watchhouse.  He was then conveyed to the Royal Darwin Hospital accident and emergency.  In addition to the cut on the forehead, he sustained a cut to the back of the head.  The learned Magistrate was unable to find how this cut was sustained, but he was satisfied that it was not intentionally self-inflicted.  
[6]	The principal evidence upon which the learned Magistrate relied to arrive at his findings was that of Mr Kaye and Mrs Kaye.  The appellant and Wilson both gave evidence.  A brief summary of their version of the events was that the complainant was intoxicated and abusive when apprehended.  He had a wet spot on his pants.  He attempted to kick the appellant and to strike both police when apprehended.  He called out "Fuck off cunts.  You Nazi pigs".  The vehicle did not stop after leaving the Mall.  Mr Kaye was thrashing around in the vehicle and kicking it.  After a while the complainant quietened down.  They did not assault the complainant, whose injuries were self-inflicted.  The learned Magistrate accepted the evidence of Mr & Mrs Kaye and rejected the evidence of the appellant and Wilson for various reasons which he gave.
[7]	Both the complainant and the appellant called expert evidence, the purpose of which was to demonstrate whether or not the injuries were probably caused by the use of a torch, or by the complainant striking himself on the interior of the cage.  The learned Magistrate made little direct reference to the expert evidence, which was in conflict, in arriving at his findings.
[8]	The appellant has appealed against his conviction on a number of grounds, some of which are repetitious.  It will not be necessary to traverse all of them.  The principal grounds are:
1.	the learned Magistrate erred in applying the rule in Browne v Dunn to arrive at a conclusion that evidence given by the appellant was recent invention (Grounds 3, 6(a), 7 and 8(b));
2.	the learned Magistrate erred in admitting the evidence of Mrs Kaye as part of the res gestae (Grounds 9 and 10);
3.	the learned Magistrate erred in failing to address the evidence of the defendant's experts (Ground 11);
4.	there is fresh evidence available to the appellant which is credible and admissible pursuant to s176A of the Justices Act.
The Browne v Dunn Point
[9]	The first reason given for not accepting the appellant as a witness of truth was explained as follows:
(1)  I was placed on notice early when he gave evidence that Mr Kaye at the time of apprehension used the words, 'You Nazi Pigs.'  This is telling. It was not put to Mr Kaye in cross-examination.  It is an expression that seems to have fallen into disuse, at least so far as charges of objectionable words coming before the court is concerned.
I would have thought that this expression would be used by counsel for the defence in the preparation and presentation of the defence case.  I would have thought questions would have been asked of Mrs Kaye as to her husband's socio-political leanings and whether he ever used the words 'Nazi pigs'.  This is in addition, of course, to any cross-examination of Mr Kaye on the use of the words.
It quite simply cannot be the case that counsel committed an error and forgot to cross-examine on this point.  After all counsel hinted at infidelity and Mr Kaye's mental state.  The only inference that arises from the first disclosure in evidence in chief of the first defence witness is recent invention.
The solicitors for the defence were not instructed that these words were used.  They were not instructed because the words were not used.
[10]	Mr McDonald QC, submitted that the rule had been complied with by counsel for the appellant.  The following passage of the transcript of the cross-examination of Mr Kaye is pertinent:
Well, now, you see, before you were placed in the van and when you were woken up, you'd been in a deep sleep, hadn't you?---Possibly.
And you were having a little bit of difficulty remembering - I withdraw that.  You were having a little bit of difficulty with orientating yourself when you woke up, weren't you?---Yes.
And you were, at that stage, concerned that you were being woken up - or you were waking up and at the same time being placed in a police van; is that correct?---No, by the time I got to the police van, I'd woken up enough to know what was going on.
And that, you see, whilst you were being - and before you were placed in the police van, you were swearing, weren't you?---No.
And you were also kicking, weren't you?---No.
You've got a clear recollection of that, have you?---Absolutely.
A clear recollection of that notwithstanding that you were just waking up from a deep sleep, disorientated?---Not disorientated.  I knew where I was.
You see, did you notice anything about your trousers at that time before you were thrown into the van or placed in the van?---No.
Did you notice that they were wet in any way?---No.
You see - - -?---They weren't wet.
How do you know that?---Because I would have felt it.
But you were asleep, weren't you?---You're talking about after I woke up.  I don't notice things when I'm asleep.
You don't know what was the situation with yourself before you woke up to start with, do you?---No.
And I suggest to you that, unbeknownst to you, you'd urinated in your pants?---I don't have any recollection of that.
And you see when you were spoken to in the mall, you immediately took issue with the police officers?---No, I wasn't spoken to.  I don't recall any sounds.  I don't - or any identification or anything.
	So what these police officers did was just pick you up, take you over and put you in the back of the van; is that right?---They - I was sitting - I - when I woke up and I went to make my phone call, they went to grab my phone.  I didn't know who it was.  I then immediately had arms go underneath my arms and they just picked me up and took me to the van.  There was nothing said by either party.
And you see, when you were woken up from this sleep that you were in and you sat up, you started throwing punches, didn't you?---No.
You deny that, do you?---Yes.
You do say that you put your arm up in this fashion that you described earlier?---Yes.
You deny that you threw any punches?---I deny it.
[11]	It can be seen from this passage that it was put to the complainant that he had been swearing at the time of his apprehension.  This was denied.  The appellant went on to say that nothing had been said by either party.  The cross-examination did not specifically put to Kaye that he had called the police "Nazi pigs".
[12]	Whether or not the complainant had used the expression "Nazi pigs" was not strictly relevant to any issue in the trial except as to credit.  The issue being explored was whether the complainant, when apprehended, had been peaceful and compliant, or had been aggressive and foul-mouthed.  This issue was also a credit issue; it did not directly bear on the question of whether or not the complainant had later been assaulted by the appellant in the van.  It was entirely a matter for counsel for the appellant whether or not he pursued that issue, but if he did, he was not bound to put to the complainant that he had used the expression "Nazi pigs" before he could call evidence in chief from the appellant that these words had been used as the learned Magistrate seems to have thought.  Although not specifically referring to the case by name, the learned Magistrate no doubt based his finding on the rule in Browne v Dunn (1894) 6 R 67, which is a rule of professional practice designed to ensure fairness to the witness being cross-examined and to the party who called the witness.  It requires the cross-examiner, if it is intended to suggest to a witness that he is not speaking the truth on a point, to give the witness notice and an opportunity for explanation: see Allied Pastoral Holdings Pty Ltd v Commissioner for Taxation [1983] 1 NSWLR 1 at 16-24, per Hunt J; Carruthers v Griffis [2000] NTSC 11 (unreported) at 15.  However, it is not always necessary to put to the witness every detail of the cross-examiner's instructions on a point if the witness has denied the point.  Examples of this are given by Hunt J in the Allied Pastoral Holdings case, supra, at pps 23-24.  Here the witness was challenged by the cross-examiner as to his demeanour after he had been awoken by the police.  It was specifically put to him that he had sworn and the complainant not only denied this, but also denied that there was anything said at all by either party.  The situation is very similar to example (3) given by Hunt J at p24.  The learned Magistrate therefore erred.  The rule in Browne v Dunn had not been breached.
[13]	There is a second aspect of the rule, referred to by Hunt J in the Allied Pastoral Holdings case at p18, which relates to the weight or cogency of evidence: see also Bulstrode v Trimble (1970) VR 840 at 846, 848-9, per Newton J.  This aspect of the rule applies only where the rule is breached, so it is not really necessary to discuss it in this case; but, since it was submitted that the learned Magistrate fell into yet another error on this aspect of the rule, I feel that I should deal with it.  There is no doubt that the rule applies to criminal proceedings.  However, in criminal proceedings, the use of the rule to draw the inference of recent invention is one fraught with difficulty: see the remarks of King CJ in R v Manunta (1989) 54 SASR 17   at 23:
I have been concerned about the prominence which the learned judge gave to these matters in the course of summing up.  It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose.  It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection.  There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions.  The witnesses may not have been fully co-operative in providing statements.  Forensic pressures may have resulted in looseness or inexactitude in the framing of questions.  The matter might simply have been overlooked.
(See also the observations of Gleeson CJ in Birks v R (1990) 48 A Crim R 385 at 397-399.)
[14]	The learned Magistrate, in the passage which I have quoted, considered the possibility that counsel may have forgotten to put the relevant suggestion and rejected it.  He apparently did not consider any other possibilities.  Was there any basis for this conclusion?  The first time reference to this is made is during the appellant's evidence in chief (tr p379).  No objection was taken by the prosecutor that the rule in Browne v Dunn had not been observed.  Instead, in cross-examination, the appellant was asked:
Did you tell your lawyers that Mr Kaye was abusing you by calling you 'Nazi pigs'?---Yes, more than likely I did, yes. We would've gone through the - the transcript, certainly, and covered most avenues or all avenues.  And from memory I think that was with Mr Radburn.
Well, he didn't tell - put to Mr Kaye that he was abusing you by calling you a Nazi pig?---Yes, he did.  He may not have said that word, but it would be in the transcript.
This was the extent of the evidence on this topic.
[15]	It should be pointed out that the appellant's counsel at the beginning of the trial was a Mr Radburn, who is not a local counsel but a member of the Sydney Bar.  The trial did not proceed day by day until it was concluded.  It began on 5 July 1999 when Mr Kaye gave evidence and was cross-examined, and proceeded on 6, 7 and 8 July when it was adjourned until 21 September, that date having been selected, so it would appear, to suit the availability of the Court as well as of both counsel.  However, when the case resumed on 21 September, there was a change of counsel and a Mr O'Connor appeared for the appellant.  At this stage the Crown had not completed its evidence.  When the appellant was called to give evidence, no objection was taken by Mr O'Connor to the appellant being questioned about his instructions to his lawyers, although that was plainly a privileged communication.  I do not consider that Mr O'Connor can be blamed for not objecting.  He had an answer to that point which he dealt with in his reply.  Counsel often have difficult choices to make on the run, so to speak, and perhaps in hindsight the objection should have been taken.  But it was not.  No evidence was called to deal with the point, which in the circumstances is not surprising.  Mr O'Connor did not raise the matter in his address.  The next time it was raised was by the prosecutor in his final address (tr. p608) where it was mentioned as a "minor" example of a failure by Mr Radburn to properly put certain matters raised in the appellant's case to Mr Kaye.  In reply, Mr O'Connor submitted that the rule in Browne v Dunn was not breached and he was plainly quite right.  But even if he was not, given that this was the attitude of Mr O'Connor, in the whole of the circumstances it was simply not open to draw the inference that the appellant's evidence on the point was recent invention.  
[16]	Mr Lawrence, counsel for the respondent, submitted that this was only given as a reason by the Magistrate why he was placed "on notice early" as to the appellant's credibility.  I am unable to accept this submission.  The learned Magistrate clearly relied upon it as the first reason for rejecting the appellant's evidence.  A finding of recent invention is bound to have an adverse affect on a witness's credit.
[17]	Next, Mr Lawrence submitted that there were many other aspects of the appellant's evidence not put to Mr Kaye in cross-examination and that this somehow justified the course taken.  There are a number of answers to this submission, not the least of which is that the learned Magistrate made no findings on any of these other alleged failures and did not rely on them. 
[18]	Next Mr Lawrence submitted, in effect, that this was only one of five reasons given for rejecting the appellant's evidence, and that the other four reasons (together with a lot of other matters which Mr Lawrence urged upon me but about which the Magistrate made no findings) were of such strength that I should dismiss the appeal on this ground.  Mr Lawrence relied upon David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416 in support of the proposition that the respondent to an appeal could rely upon any other ground to support the decision appealed from, whether the Court below had considered that ground or not.  However, I do not consider that this decision supports Mr Lawrence's contention, as in that case the Court of Appeal of New South Wales was careful to limit that principle to additional or alternative arguments of law: see per Kirby P at 421; per Hope JA at 427.  The points which Mr Lawrence wishes to press are factual, not legal arguments.  Next Mr Lawrence relied upon the decision of Kearney J in Paspaley Pearls Pty Ltd v Johnston (1995) 120 FLR 377.  That was a worker's compensation appeal limited in any event to matters of law and is of no assistance to the respondent in this case.
[19]	I was referred also to the decision of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 as support for the proposition that there is, as Mr Lawrence put it, a general reluctance on the part of appeal courts to interfere with findings of fact based on matters going to the credibility of the witnesses.  The principle, stated in such cases as Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-9 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (cited with approval by Gaudron, Gummon and Hayne JJ in the State Rail Authority case, supra, at 589) is that:
"...a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact.  If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable."
[20]	In this case, the learned Magistrate did not express in his reasons any reliance upon the demeanour of the witnesses in his decision to reject the evidence of the appellant and of Wilson.  However, in Abalos, supra, at p179, McHugh J, (with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed) said, at p179:
As I pointed out in Jones v Hyde, when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour in his or her determination cannot be overlooked.  It does not follow that, because her Honour made no express reference to the demeanour or credibility of either Professor Ferguson or Mrs Archer, demeanour or credibility played no part...
[21]	But, as Kirby J pointed out in his judgment in the State Rail Authority case (a judgment which, with respect, warrants careful reading for its instructive wisdom) this passage from McHugh J's judgment did not state a new principle of law.  His Honour said, at p615:
Abalos and the cases which accompanied it are to be read as lying in the mainstream of the court's "traditional" approach to the appellate function.  To read more into them would be to risk returning the court to a view of the appellate function, wholly subservient to the opinions and conclusions of the trial judge, which was expressed in the now discarded approach which Barwick CJ propounded, for a time successfully, in Edwards v Noble and other cases.  There is no warrant for returning to that position.  In my view it should be firmly resisted.  It cannot stand with the duty imposed on appellate courts by statute to make up their own mind; to conduct appeals on the facts by way of rehearing; to draw inferences from the facts for themselves; to give the judgment and make orders that should have been given at trial; and, in exceptional circumstances, even to admit fresh evidence into consideration.
[22]	At pp620-22, Kirby J analysed a number of situations where credibility findings would not bar a successful appeal.  Relevant to this ground of appeal is his Honour's observations at pps620-21:
2.	It may be possible to show, by reference to incontrovertible facts or uncontested testimony, that although the trial judge reached conclusions which were adverse to the credibility of an important, even crucial, witness, such conclusions were plainly wrong.  For example, they are based upon expressed or implied assumptions about the evidence (for example, that witnesses are in conflict) which careful analysis of the record demonstrates to be incorrect.
[23]	Mr McDonald QC, submitted that the error made by the learned Magistrate fell within that category.  I agree.
The Res Gestae Point
[24]	The learned Magistrate admitted evidence of Mrs Kaye that she received a phone call from the complainant at 1:17 am on 29 August 1998, that she had a conversation with the complainant which ended when she heard a loud cracking on the phone and the phone went dead; and more importantly, his Worship admitted the entire content of that conversation as part of the res gestae.
[25]	According to Mrs Kaye, the complainant told his wife he had been picked up by the police and put into a paddy wagon for sleeping on a park bench.  He said he had left his friends at a particular bar because he was not feeling very well and went to McDonald's.  He said he was feeling sick and complained about the loud thumping noise coming from another nightclub which he could hear whilst sitting in the vehicle.  She heard him calling out to the police to let him out of the vehicle, saying that he was feeling sick and claustrophobic, shouting that he wanted to be let out and calling the police "Fucking cunts".  She heard noises consistent with the complainant kicking the inside of the cage.  She told him to be calm and not to swear at the police and not to make these requests.  She said she could hear music and she also heard the revs of the vehicle over the music from the nightclub.  She continued to tell the complainant to be calm and she said that the complainant calmed down and told her of the events of the evening.  He explained that when he arrived at McDonald's there was an altercation involving a number of people outside, so he did not go in but walked up the Mall and was going to phone her to ask her to come and pick him up, but instead, when he sat down he fell asleep.  At this time, the complainant said to her that the police were now taking him somewhere dark.  She said that he was starting to sound upset and scared.  He said to her: "They're getting out" or "They're coming around" or words to that effect.  Then she heard other male voices and the complainant saying "Oh no" in a scared manner.  Then she heard a rattling or creaking sound, and the complainant saying "Oh no" and aggressive male voices.  Then she heard a loud cracking on the phone, and the phone went dead.  
[26]	I am not satisfied that any of the evidence infringed the hearsay rule.  The evidence of what Mr Kaye had said to his wife was admissible, not as to the truth of the words said, but as to the fact that they were said, in order to give context to what Mrs Kaye heard over the telephone, and could give evidence of her own knowledge, as if she had been a blind person physically present in the back of the van at the relevant time: see Keith McDonald Ratten v The Queen (1972) A.C. 378 at 387.  If this is correct, what was said by Mr Kaye was admissible for that purpose and the hearsay rule and res gestae exception does not apply.  However, that would not have permitted the learned Magistrate to use what he had said testimonally.  It is therefore necessary to consider whether the words spoken were part of the res gestae.
[27]	Mr McDonald QC submitted that the whole of this conversation was inadmissible hearsay, which did not fall within the res gestae exception.  It is also the fact that his Worship referred to Mrs Kays' evidence, including what the complainant said to her during this telephone call, in reaching his principal findings on the issue of credit, and in accepting the complainant's version of events.
[28]	However, as I have already pointed out, not all of Mrs Kaye's evidence was inadmissible hearsay.  The fact that she received a telephone call from her husband at 1:17 am that morning; the music she could hear; the noises consistent with her husband knocking the inside of a paddy wagon; that her husband yelled out to the police "Fucking cunts"; the sound of a motor revving up; that her husband at one stage sounded upset; at another time frightened; the rattling and creaking sounds; the aggressive male voices and the loud crashing sound on the phone when the phone went dead were all matters she could hear for herself and about which she could give first-hand testimony.  Together with the complainant's evidence and other evidence led by the Crown as to the length of this phone call, it was open to the Magistrate to use this evidence to reach his conclusions.  However, the learned Magistrate also relied on Mrs Kaye's evidence that the complainant had said to her: "They're taking me somewhere dark".  "They're getting out", or "They're coming around", and after she heard a rattling and creaking sound and aggressive male voices, "Oh no".  It was submitted that this was inadmissible hearsay and could not be admitted under the res gestae exception, as it was a narrative of events prior to the alleged assault, not so closely related to it to be part of it and not vouched for by spontaneity or immediacy and there was an opportunity for concoction.
[29]	In Ratten, supra, at 389-90, Lord Wilberforce, in delivering the opinion of the Privy Council said:
The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply.  In their Lordships' opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction.  This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria.  As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded.  Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it.  And the same must in principle be true of statements made before the event.  The test should be not the uncertain one, whether the making of the statement should be regarded as part of the event or transaction.  This may often be difficult to show.  But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.  The expression "res gestae" may conveniently sum up these criteria, but the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges' rulings.
[30]	In Walton v The Queen (1988-9) 166 CLR 283 at 304, Wilson, Dawson and Toohey JJ said:
An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical and Fertilizer Co Ltd v Carlyle.  The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten; Reg. v Andrews: see also Adelaide Chemical and Fertilizer Co Ltd v Carlyle.  Of course, the discussion in Ratten and Andrews  was in the context of the res gestae rule.  The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible; see Vocisano v Vocisano.  But if sometimes there is an element of hearsay in evidence which is led of statements made by a person other than a witness for the purpose of founding an inference concerning that person's state of mind, the justification for disregarding that element of hearsay may be thought to be of a similar kind.  Such statements will rarely be purely assertive.  Ordinarily they are reactive and are uttered in a context which makes their reliability the more probable.  On the other hand, if a statement by a person about his state of mind is a bare assertion not amounting also to conduct from which a relevant inference can be drawn, then it ought to be excluded as hearsay.
[31]	In Pollitt v The Queen (1991-1992) 174 CLR 558 at 582-3, Brennan J (as he then was) said:
...it is sufficient to observe that Walton stands as a recent decision of this Court affirming, at least by a majority, the conditions of admissibility of res gestae evidence stated by Lord Wilberforce in Ratten, namely, approximate if not exact contemporaneity with the res gestae and an assurance of non-concoction arising from the spontaneity of the statement or the involvement of the matter in the events of res gestae.
[32]	Applying those tests, I do not consider that the statements made by the complainant before the vehicle is alleged to have stopped, other than those which were not hearsay, ought to have been received to prove the facts asserted therein.  As to that part of the conversation which occurred up to the time when, on the complainant's evidence, the police van stopped, it is clear that they were not sufficiently proximate to the res gestae and did not meet the requirement of an assurance of non-concoction.  However, I am not satisfied that his Worship used that part of the conversation testimonially.  But the words used, on the learned Magistrate's findings after the vehicle stopped, were in a different category.  It was open to infer that they were much closer to the res gestae - in this case, the striking of the complainant with the torch - and it is clear that his Worship did use those words testimonially.  Of course it is possible that the complainant (and perhaps Mrs Kaye) have concocted what was said, as it always is with any piece of evidence; but assuming that the evidence is truthful, I consider that the drama had clearly begun when the vehicle began to stop in a dark place.  The words used are reactive to what would have been enough to cause alarm and anticipation that something unpleasant was about to happen and therefore satisfies the test of lacking the opportunity for concoction.  In reaching this conclusion I have relied upon the guidance offered by Lord Ackner in R v Andrews [1987] 1 AC 281 at 300-301, and especially the following passage at p301:
...the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection.  In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.
[33]	It is to be noted that the approach to admissibility assumes the truth of the assertion that the vehicle stopped, that at least one officer, the appellant, alighted, that the cage was opened leading to the use of physical violence on the complainant, and that the standard of proof as to the conditions of admissibility of the evidence is the civil standard.  As to the latter point, see R v Golightly (1996-97) 17 WAR 401 at 417 per Owen J.  The former point is not directly discussed in the authorities, except for the views of Gaudron and McHugh JJ in The Queen v Benz and Another (1989) 168 CLR 110.  In that case, a woman and her daughter were charged with the murder of the woman's de facto husband, whose body was found in a river downstream from a bridge.  There was evidence that the husband had been stabbed and dragged and thrown over the bridge.  A witness for the Crown gave evidence that on the night when the murder allegedly occurred, he spoke to two women at about the centre of the bridge who were looking over the edge and he asked if everything was all right.  One of the women said that her mother was feeling sick.  The majority of the Court held that the evidence was admissible as part of the res gestae going to establish that the two women were mother and daughter, and thereby as evidence establishing the identity of the killers; but Gaudron and McHugh JJ added the rider that the evidence was only admissible if the jury first found that the two women were the murderers.  Mason CJ disagreed with that view (at 118-119).  The other members of the Court did not discuss that issue.  However, that was a case where the circumstances were very peculiar and there is no logical reason in this case why there should be any preliminary finding.
[34]	In conclusion, I would not uphold the appeal on this ground.  
The failure to address the evidence of the defendant's experts
[35]	Mr McDonald QC submitted that the defence led expert evidence designed to show that the injuries suffered by the complainant were unlikely to have been caused by the use of the torch and therefore were more likely to have been self-inflicted and that the learned Magistrate erred in not considering this evidence.
[36]	The Crown also called expert evidence, principally that of Dr Kevin Lee, a pathologist, designed to show that the injuries sustained were consistent with the use of the torch.  Incidentally, the evidence is that on the afternoon of the alleged assault the appellant's torch was seized for forensic examination.  The results were that no biological matter was found thereon.
[37]	The only specific reference made by the learned Magistrate to any of the expert evidence related to that of Dr Lee whose evidence he said did not assist him, in part because much of Dr Lee's evidence was not of an expert nature, in part, because Dr Lee "adopted a role of an advocate for the defence" (he presumably meant the prosecution) and in part because "his computer enhanced images were not reduced to the correct size".  Dr Lee's evidence covered a lot of ground of a general nature, but summarising his principal conclusions he said that if the complainant lost consciousness as a result of a blow to the head as he claimed, the impact from the torch was more likely to have been caused by a direct impact rather than a glancing blow; that the complainant had sustained a small number of injuries, two of which are similar and appear to be of common origin and with characteristics indicating that they had been caused by the torch; and that the overall injury pattern was not that of multiple head butting and other impacts within the cage of the police vehicle.  Importantly, Dr Lee said that the injuries to the scalp have characteristics of having been produced by a curved and relatively sharp edge and have an effective circumference very close to that of the torch.
[38]	The prosecution also called other medical experts (Drs Treston and Huynh) and the defence called two expert witnesses (Professor Hilton and Dr Zillman).  Without going through the whole of the evidence in detail, contrary to the submission of Mr Lawrence, the effect of Professor Hilton's evidence was that the wounds sustained by Mr Kaye were unlikely to have been caused by a blow by the lens end of the appellant's tourch, and could have been caused by contact with features inside the paddy wagon: see Ext. 20; tr pps501-2, 512, 514-515.  Further, Professor Hilton considered that the possibility of the wounds having been caused by a stabbing movement was also unlikely: (p502).  Dr Zillman's evidence was to the effect that the shape of the wounds did not imply that the object which caused the wounds was curved; that the absence of bruising indicated a relatively narrow contact surface, and the edge of the torch might have caused that to happen.  He was unable to rule out the possibility that there were structures inside the van which could similarly have caused those lacerations.
[39]	The evidence of Professor Hilton, in particular, was clearly of significance, for two reasons.  First, by implication, he agreed with the Crown's principal expert, Dr Lee, that only a direct blow, rather than a stabbing or glancing blow, was likely to have caused Mr Kaye to lose consciousness.  Dr Zillman did not address that possibility.  The conclusion of the learned Magistrate that the appellant struck Mr Kay with the torch by a glancing blow or thrusting motion causing him to lose consciousness is therefore not able to be sustained on the evidence.  Further, if Professor Hilton's opinion is accepted, this material raised at the least a reasonable doubt that the appellant struck Mr Kay with a torch at all.
[40]	Mr Lawrence submitted that His Worship considered the appellant's expert evidence as he found that the wounds were caused by a stabbing motion or glancing blow.  However, as noted above, this was not supported by the evidence of the defendant's experts.
[41]	No reasons are given by the learned Magistrate for rejecting, as he appears to have done, the evidence of Professor Hilton, although it may be that the significance of Professor Hilton's evidence was overlooked.  The case in this respect bears some resemblance to the sitaution which arose in Sun Alliance Insurance Ltd v Massoud (1989) VR 8.  In that case, the respondent claimed under policies of insurance with the appellant the loss sustained to his shop and dwelling as a result of a fire.  The appellant rejected the claim on the basis that the fire was deliberately lit and called a substantial body of evidence designed to demonstrate that the respondent's version of the events could not be true; to show that the fire was deliberately lit; and by inference, that the respondent was therefore the arsonist.  The trial judge accepted the plaintiff's denials that he had lit the fire; accepted the plaintiff's account as to how the fire started and was not satisfied that accellerants were present at the time of the fire.  No reasons were given as to why the evidence of the appellant's witnesses had not been accepted.  The Full Court held that the trial judge's reasons were inadequate because he did not explain how he got over the strong points of the defendant's case and that justice was not done because the defendant, having led a weighty body of incriminating evidence, was entitled to have that evidence weighed and if rejected by the Court, to have the grounds of its rejection "expressed in reasoned terms": see especially per Gray J at 18.  Accordingly, the appeal was allowed on the ground that the reasons were not adequate.  (For a recent summary of the authorities on the topic of the duty of magistrates to give adequate reasons, see also Harwood v Police (1998) 71 SASR 300.).  Likewise the appellant was entitled in the circumstances of this case to know why the evidence of Professor Hilton did not give rise to a reasonable doubt as to his guilt.                                                                                                                        
[42]	In relation to the forensic evidence, as I have already mentioned, the forensic biologist was unable to find evidence of any biological matter on the torch.  The evidence of Dr Lee was that if the torch had been used to impart the blows to Mr Kaye's head, he would have expected heavy contamination because the first injury would have started to bleed (Tr pps234-5).  The learned Magistrate did not deal with this evidence in his reasons and in my opinion the appellant was entitled to know why that evidence did not give rise to a reasonable doubt as to his guilt.
[43]	Much of Mr Lawrence's submissions was directed to show that the Crown had an overwhelming case and that, notwithstanding any errors on the part of the learned Magistrate, a conviction was inevitable.  This argument was put to address a ground of appeal that the verdict was unsafe and unsatisfactory.  However, that ground, which requires the appellate Court to consider the evidence afresh and reach its own conclusions, was not pursued by Mr McDonald QC who made it clear at the outset that he did not seek a verdict of acquital from this Court, but a retrial.  The only other relevance of this aspect of Mr Lawrence's submission is the power of the Court to dismiss the appeal vide s177(1) of the Justices Act on the ground that no substantial miscarriage of justice has actually occurred.  However, in Sun Alliance v Massoud, supra, at 18, Gray J said:
In my opinion, the decided cases show that the law has developed in a way which obliges a court from which an appeal lies to state adequate reasons for its decision.                                                 The adequacy of the reasons will depend upon the circumstances of the case.  But the reasons will, in my opinion, be inadequate if:      (a)  the appeal court is unable to ascertain the reasoning upon which 	the decision is based; or                                                                (b)  justice is not seen to have been done.                                           The two above stated criteria of inadequancy will frequently overlap.  If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected...                                                                                  Turning to consider whether justice was seen to have been done, I cannot but feel that it was not.  The defendant, having led a weighty body of incriminating evidence was entitled to have the evidence weighed by the Court and, if rejected, the grounds of its rejection expressed in reasoned terms.  To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant.
I consider that in this case, the failure of the learned Magistrate to properly deal with the expert evidence precludes a finding in favour of the respondent that no substantial miscarriage of justice has actually occurred.
[44]	It follows therefore that the learned Magistrate's reasons were inadequate and the appeal must be allowed on this ground.
Fresh Evidence
[45]	Section 176A of the Justices Act entitles this Court to admit fresh evidence if certain conditions are met.  The appellant has sought to admit the evidence of Scott Lambert Pieniacki and that of his wife Helen Deborah Pieniacki.  The effect of this evidence is that, in October 1999, Mr Pieniacki heard for the first time that the appellant had been found guilty of asaulting Mr Kaye.  The source of his information was a telephone call from his wife.  Mr & Mrs Pieniacki both knew the appellant, but neither knew he was facing criminal charges until the fact of his conviction was published in the Northern Territory News, which was read by Mrs Pieniacki.  Mr Pieniacki also knew the complainant, Mr Kaye.  According to Mr Pieniacki, in September 1998, he had a conversation with Mr Kaye concerning the events the subject of the alleged assault, in which Mr Kaye told him that he had been kicked out of a nightclub because he was drunk; that he went up the Mall where he decided to have a sleep because he was "pissed"; that when woken up by police, he "had a go at them", punching and kicking them; that they placed him in a paddy wagon; that "he gave them a hard time by trying to put the paddy wagon off the road by throwing himself around in the back of the vehicle"; that he did not remember what happened after that; that he did not know who the police officers were but he was "going to stick it up them"; that at no stage did he claim to have been assaulted by the police.
[46]	Mr Lawrence conceded that this evidence met all of the criteria for admissibility required by s176A except that the evidence was not likely to be credible, as required by s176A(1)(a).  He sought to cross-examine Mr & Mrs Pieniacki.  This course was not opposed by Mr McDonald QC.  Mr Lawrence submitted that, having regard to the evidence given before me, I should reject the evidence as not likely to be credible.  The test is, not whether I consider that the evidence lacks credibility, but whether it is likely to be credible in the sense that it is capable of belief: see Hook v Ralphs (1987) 45 SASR 529 at 535; or, as Muirhead J put it, in Smith v Torney (1984) 29 NTR 31 at 33, on an objective view of the evidence, is the evidence prima facie credible?  Applying those tests, I am satisfied that the evidence of Mr Pieniacki is capable of belief.  As his evidence will have to be considered by a magistrate hearing the retrial, it is probably better that I do not dwell upon this topic any further.
[47]	No submission was directed to the other requirements of s176A of the Justices Act  It is therefore not necessary for me to deal with the other requirements in any detail.  Mr Pieniacki's evidence goes to Mr Kaye's credit.  Material going solely to credit is usually not a sufficient ground for fresh evidence to be received.  However, where the evidence can be used as part of the appellant's case, and not merely to attack the credit of a witness to be called by the respondent, it has what Von Doussa J described in Hook v Ralphs, supra, at 536, as having "an additional characteristic" which gives rise to the possibility that a miscariage of justice may have occurred.  In this case, Mr Kaye was the Crown's principal witness and, Mr Pieniacki's evidence is admissible as a prior inconsistent statement.  If believed, it  is likely to have a significant affect on the outcome of the proceeding.  It therefore satisfies the requirements of s176A(1)(a) of the Act.

Conclusions
[48]	For the reasons given above, the appeal is allowed, the finding of guilty is set aside and the conviction and sentence thereon is quashed.  I also set aside the order that the appellant pay the respondent's costs.  I order that there be a retrial in the Court of Summary Jurisdiction before a differently constituted Court.  The respondent is to pay the appellant's costs of the appeal, to be taxed.  The costs of the hearing before the learned Magistrate are to abide the outcome of the retrial.  I certify that this case is fit for senior counsel.
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