Tasmanian Supreme Court (unreported, TasSC, 31 May 1994, Zeeman J).
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.
The full Supreme Court judgment is available at www.austlii.edu.au/cgi-bin/sinodisp/au/cases/tas/TASSC/1994/66.html
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 Supreme Court:
The conviction should be overturned and the case re-heard by another magistrate. The magistrate’s reasons strongly suggested that at least some of the particular aspects of the demeanour of the applicant 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 upon by the magistrate in considering the credibility of the applicant.
The court outlined the nature of the applicant’s stammer. By taking great care in expressing himself, the applicant “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 with which he had no difficulty.
The court said that 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. There was not a conscious decision to conduct the defence in a particular way – particular evidence was not put before the magistrate because the relevance of it, quite reasonably, was not appreciated.
The court also considered whether evidence of the stammer and the ways in which it manifests itself would be admissible. Evidence could not normally be admitted when its purpose was solely to bolster the credibility of a witness. However evidence about the stammer would be admissible, by analogy with a UK House of Lords case. “It is not evidence which in itself would suggest that the applicant is a person who ought to be believed. It is 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.”
See my page Appearing in court.
- 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.