In this Australian case, a person who stammers was found guilty of assaulting his wife. His demeanour led the magistrate not to believe his evidence. On appeal, the Supreme Court found that his demeanour was at least in part due to his stammer, which the magistrate had not been told about. The matter would be sent for re-hearing by another magistrate.
Tasmanian Supreme Court, 1994. Full judgment: www.austlii.edu.au/cgi-bin/viewdoc/au/cases/tas/TASSC/1994/66.html.
Facts
The applicant, Mr Coombe, was convicted of assaulting his wife. The magistrate did not believe his evidence. The applicant’s
“demeanour was quite noticeably different when describing matters that were more in the nature of being common ground – rather than in contention and then he appeared, I think, to be describing them from true recollection. He was a very uneasy witness – a tremor notable in his voice – throughout the giving of much of his evidence – as one example of why I thought he was an uneasy witness and that characteristic was particularly notable during the parts of his evidence that tended to be controversial…”
The magistrate said that the applicant’s demeanour was of principal importance in determining credit in the case.
The applicant had not told his solicitor about the stammer because it did not occur to him that it was relevant. Accordingly the magistrate also did not know about the stammer.
Held by the Tasmanian Supreme Court: The conviction should be overturned and the case re-heard by another magistrate.
Tasmanian Supreme Court
The Tasmanian Supreme Court said the magistrate’s reasons strongly suggested that at least some of the particular aspects of the applicant’s demeanour which led the magistrate to take an adverse view of his credibility were the result of the speech impediment, of which the magistrate was unaware. The applicant’s demeanour may have been the only valid matter relied on by the magistrate in considering his credibility.
The court outlined the nature of the applicant’s stammer. By taking great care in expressing himself, he “normally finds it possible to overcome his natural tendency to stammer and stutter”. This taking care manifested itself in various ways. Often there was a noticeable tremor in his voice. He had particular difficulty uttering certain words and avoided using them. When asked a question he tended to pause before responding, so that in his answer he might use words he had no difficulty with.
The magistrate drew adverse inferences from manifestations of the applicant’s speech impediment which he might not have drawn had he appreciated the true situation. Drawing such inferences might have been totally unwarranted had the additional material been before the magistrate. As a result the applicant may have suffered a grave injustice.
The interests of justice required that the case be completely re-heard, by a different magistrate.
Reasonableness of applicant not having brought evidence of the stammer
The magistrate had been unaware of the stammer. The Tasmanian Supreme Court said it was reasonable for the applicant not to have appreciated that evidence of the stammer might be required:
It was reasonable for the applicant not to have directed his mind to the possibility that the manifestations of his speech impediment might result in the making of an adverse finding as to his creditworthiness. This is not a case where there has been a conscious decision to conduct a defence in a particular way and an application for a hearing de novo is made so that there may be provided the opportunity of conducting it in a different way. It is not the case where any deliberate decision was made. It is a case where particular evidence was not put before the learned magistrate because the relevance of it, quite reasonably, was not appreciated. …
Admissibility of evidence about stammer
The Tasmanian Supreme Court also considered whether evidence of the stammer and the ways in which it manifested itself would be admissible. If this evidence were not admissible, there might be no purpose in ordering that the case be re-heard. Evidence could not normally be admitted when its purpose was solely to bolster the credibility of a witness.
However, the court said evidence about the stammer was not evidence which in itself would suggest that the applicant was a person who ought to be believed. It was evidence which would go to explain a characteristic of the applicant’s manner of speaking which, if unexplained, could lead to the formation of an unwarranted adverse conclusion as to his credit. It was analogous to evidence which the UK House of Lords had held to be admissible in Toohey v Metropolitan Police Commissioner (studocu.com) (1965) AC 595, where Lord Pearce said at 608:
Human evidence shares the frailties of those who give it. It is subject to many cross-currents such as partiality, prejudice, self-interest and, above all, imagination and inaccuracy. Those are matters with which the jury, helped by cross-examination and common sense, must do their best. But when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them. If a witness purported to give evidence of something which he believed that he had seen at a distance of 50 yards, it must surely be possible to call the evidence of an oculist to the effect that the witness could not possibly see anything at a greater distance than 20 yards, or the evidence of a surgeon who had removed a cataract from which the witness was suffering at the material time and which would have prevented him from seeing what he thought he saw. So, too, must it be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise.
The Tasmanian Supreme Court cited an Australian case as an “example of the application of the principle that for the purposes referred to in Toohey, evidence may be lead as to a matter affecting the credibility of a witness”. The court went on to apply this principle “by analogy” to the case before it:
In the present case the principle is capable of being applied by analogy so as to make admissible evidence of an abnormality suffered by the applicant which, if it were not revealed, would prevent the trial court from properly assessing that evidence. If a physical or mental abnormality suffered by a witness which tends to reduce the reliability of evidence given by that witness may be proved then such an abnormality, which if unexplained might be taken as a matter adversely reflecting on the credit of the witness, also may be proved. Clearly it would be relevant evidence. There is no rule which would require that it be excluded.
My comment
See my page Appearing in court.
This is an interesting example of a court recognising that a defendant may suffer “grave injustice” through a judge (or doutbless jury) wrongly drawing adverse inferences from manifestations of the defendant’s stammer.
It is important to bear in mind, though, that this is not a British case. It cannot necessarily be assumed that a case in England and Wales – or even in another Australian state – would necessarily be decided the same way. For example, what is the law on when a criminal conviction can be reversed, including in relation to a defendant who fails to bring evidence of their disability in the initial trial? I haven’t researched the British position on this.
External links
- Article in Sydney Morning Herald about the case (3/8/06)
- ‘Who is telling the truth? Psychology, common sense and the law’ (on thesydneyinstitute.com.au) – speech by Peter McClellan which discusses lessons from the case.
