Allison v Police - [2005] SASC 447

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ALLISON v POLICE
Judgment of The Honourable Justice Perry
30 November 2005
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES
Appeal against finding of guilt in the Magistrates Court following the trial of the appellant on a charge of assault - it was common ground between the appellant and the alleged victim that a physical struggle occurred between them, but on the appellant's case, he did no more than was necessaary to prevent the complainant, his de facto partner, from damaging his property following a heated argument between them - the trial magistrate preferred the evidence of the complainant over the evidence of the appellant, holding that her alleged injuries were more consistent with her account - discussion of the role of an appeal court in dealing with issues of credit - held that a mistake by the magistrate as to the nature of what she regarded as an injury to the head, which she held to be of critical significance in making her findings as to credit, justified interference on appeal - appeal allowed.
Taylor v Hayes (1990) 53 SASR 282; Rowland v Police (2001) 79 SASR 569; Devries and Anor v Australian National Railways Commission and Anor (1992-1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118, considered.

PROCEDURE - JUDGMENTS AND ORDERS - IN GENERAL - STATEMENT OF REASONS FOR DECISION
On the hearing of an appeal from the Magistrates Court, the appellant complained that the trial magistrate's reasons for decision were inadequate and that the inadequacy constituted an error of law - held that the reasons were sufficient - observations as to the need to give reasons and their extent.
R v Keyte (2000) 78 SASR 68; Rowland v Police (2001) 79 SASR 569; Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board (NSW) v Osmond (1986) 159 CLR 656; Soulenezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Papps v Police (2000) 77 SASR 210; Romilly v Romilly (1934) 151 LT 179; Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1; Zieta No 59 Pty Ltd v Gold Coast City Council [1987] 2 Qd R 116; King Ranch Australia Pty Ltd v Cardwell Shire Council [1985] 2 Qd R 182; Halsbury's Laws of Australia Vol 20, par [325-9020] page 596,148; Yates Property Corp Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Saxer v North Sydney Municipal Council (1988) 64 LGRA 203, considered.

ALLISON v POLICE
[2005] SASC 447
Magistrates Appeal: Criminal

PERRY J. The appellant appeals against a finding of guilt recorded following a trial in the Magistrates Court sitting at Port Adelaide on a charge that on 8 November 2003 at Henley Beach South, he assaulted Tina Natascha Bukowski, a family member of the appellant, contrary to s 39(1) of the Criminal Law Consolidation Act 1935.
I have used the expression “finding of guilt” as it does not appear from the court record that the magistrate entered a conviction.
At the trial, the appellant was unrepresented. He conducted his own defence.
Both the alleged victim, Ms Bukowski, and the appellant gave evidence.
It was common ground between them that they had a heated altercation on the night in question. However, they each gave very different accounts as to the circumstances.
The trial magistrate delivered reasons for judgment. She indicated that she accepted the evidence of Ms Bukowski, in preference to that given by the appellant.
However, except incidentally, she did not deal with the evidence given by the appellant. She did not offer any criticism of his evidence. I will deal in due course with her stated reasons why she preferred the evidence of Ms Bukowski.
On the hearing of the appeal, the appellant was represented by Mr Charles Abbott of counsel. The principal ground of appeal which he advanced was that the trial magistrate had given insufficient reasons for preferring the evidence of Ms Bukowski, and that this amounted to an error of law.
The evidence at the trial
Apart from Ms Bukowski, the prosecution called a general practitioner, Dr Nandagopal, who examined Ms Bukowski the next day; a friend, Ms Joanne Stanway, who had spent some time with the appellant on the evening in question; and three police officers, Constables Alison Cleggett, Cassie Bockmann and Malcolm Ratz.
The appellant called one witness, a friend, George Weinberger, who was on the premises when the alleged assault took place. Mr Weinberger was visiting from South Africa.
Ms Bukowski explained that she had been in a de facto relationship with the appellant since March 2002, but at the time of the alleged assault their relationship was deteriorating. At one stage, they had separated for a period.
At the time of the alleged assault, they were living together in a unit at Henley Beach. During the evening of Friday 7 November 2003, Mr Weinberger was present in the unit.
Ms Bukowski entered the unit at about 7.30 pm. The appellant and Mr Weinberger were in the kitchen.
The appellant spoke to her. When she said that she would go out that night for a drink with a friend, according to her, the appellant threatened that if she did so, it would be “all over” between them.
Before going out, she spoke again to the appellant and Mr Weinberger. She suggested that the latter should stay somewhere else that night.
She left and spent the rest of the evening with friends at a bar/restaurant in the city.
She returned to the unit a little after midnight. The appellant and Mr Weinberger were drinking in the kitchen. Her evidence was that they were drunk or “well on the way”.
An argument developed over whether or not Mr Weinberger should stay the night somewhere else.
Ms Bukowski became upset. She walked out of the kitchen and as she went through the living room, she kicked a small trolley on which the appellant’s television was mounted, dislodging the television so that it fell.
On her account of the matter, this triggered off a violent reaction from the appellant, who charged at her. She retreated into her bedroom and tried to hold the door against him, but he eventually pushed it open.
She says that he grabbed her by her arm and slammed her against a cupboard, following which he threw her on the bed and began hitting her with his hand across her face. She says he also punched her with his clenched fists. After a time he walked off.
She says that she then left the room briefly to call her mother on the telephone and the police. But after she returned to the bedroom, the appellant entered again.
He then resumed assaulting her. He tried to pull her off the bed and force her onto the floor. She begged him to stop. She tried to defend herself, using her knees to try to get him off her. Eventually, he broke off and walked away, at which stage she called the police again.
After she again returned to the bedroom, according to her, he entered for the third time. She was on the bed crying. She says he sat on top of her, pinned her arms against her legs, and pulled her onto the floor, against which he hit her head. In her evidence she described it in this way:
He … put one hand to the temple of my head, held onto my hair, took my head and slammed it against the concrete floor at least twelve times. … I was crying. I was devastated. I couldn’t believe it. … It was like he was possessed. He just kept hitting and kept hitting. There was no stopping. … Once he finished slamming my head against the floor he tried to strangle me. He held both hands around my throat which seemed like hours an incredibly long time. At that stage I had no more energy to fend him off. I honestly thought that was my last day on earth.
Q. What happened then.
A.Yes, I’m not sure why, all of a sudden he came too and he just walked off. He got off me and walked out. That was it.
Shortly afterwards, two of the police officers, Constables Cleggett and Bockmann arrived.
After the third officer, Constable Ratz, arrived later, the appellant was arrested and charged.
Surprisingly, the trial magistrate permitted the police prosecutor to lead from Constable Cleggett the detail of a conversation she had had with Ms Bukowski. This was self-serving hearsay and should not have been admitted.
Constable Cleggett observed signs of injury on Ms Bukowski. She saw bruising to her face, scratches on her left arm, and grazing on her left elbow, both knees and left hand.
Constable Bockmann gave evidence of a conversation with the appellant in the lounge room. She said:
I asked him what happened tonight and he told me my girlfriend was angry that I arrived home late so she went out drinking and partying at the Grand. I stayed home and cooked dinner with my visitor George. She just came home and ordered George to leave, she then went crazy and knocked my TV and VCR off the table. She then went crazy and I restrained her.
She thought that the appellant was affected by liquor. His eyes appeared red and glassy, and he had what she described as “mood swings”, being at times calm and at other times aggressive. She noted that there was a scratch to the left side of his neck and an abrasion on the left lower forearm.
While she was with the appellant, he became short of breath and appeared to be breathing heavily. He asked for the assistance of an ambulance or a doctor. The police called an ambulance. The ambulance officers assessed the appellant but did not offer any treatment and left, leaving the appellant with the police officers.
The appellant was then arrested and taken to Port Adelaide police station.
Constable Ratz took a statement from Ms Bukowski, and took photographs of the injuries to her knees and left arm, together with an abrasion to the right elbow and some marks on her upper arms. He said that the signs of injury appeared fresh.
In his evidence, the appellant said that after he and Mr Weinberger had started to cook the meal, Ms Bukowski arrived home, but soon afterwards went out again. Before she did so, they had an acrimonious discussion.
When she returned at about midnight, he said that she confronted Mr Weinberger and wanted to know why he had not left by then. When he said that he would go but not just then, according to the appellant, Ms Bukowski became “infuriated”. His evidence continued:
She took her rage out on me. She approached me, she attacked me, she started slapping me, she started kicking me. She was trying to kick me in the groin. I put my hands up to defend myself. I pushed her away. … She went into the lounge in a rage, complete rage and George and I heard the sounds of a large crash. We ran into the lounge and … my portable TV [was] strewn all over the floor, the video machine as well. Everything. The trolley had been completely kicked over so at that point I realised that she was on the rampage and on the warpath. … I knew instantly that she was going to go and damage my laptop because she knew that everything important to me in terms of my career and my livelihood was on that laptop and if she wanted to hurt me that was the way to do it, was to damage my laptop, and sure enough I saw her go into the study and I followed her in there and sure enough she was bending over the laptop. Luckily there were a lot of cables attached to the laptop. I grabbed her by the waist. I pulled her around or I should say she swivelled round and she started slapping and hitting me again.
The appellant said in evidence that he then tried to push her into her bedroom, and as she did so, she was “kicking and slapping”. He said that having got her into the bedroom, he tried to close the door, but she was pushing it open and at some point the door slipped out of his hand and they both tumbled into the bedroom. They wrestled on the floor. He said that he held her wrist behind her head on the floor until she calmed down. His evidence was:
All I wanted to do was restrain her and calm her down. I did not want to hurt her. I didn’t want to hit her or anything like that. All I wanted to do was simply just calm her down and stop her from damaging any more property.
He said that after he had calmed her down, she struck up again “kicking, slapping, punching”, and that this happened three times. Afterwards she said she would be calling the police.
Mr Weinberger gave evidence by video link from South Africa. He described Ms Bukowski’s demeanour when she returned just after midnight as “very emotional and irrational and very aggressive”. She told him he must leave. He said that she then started arguing with the appellant and tried to kick him, and the appellant tried to restrain her but eventually they both fell onto the ground.
He then remembered that Ms Bukowski ran into the lounge, whereupon he heard the crash of the TV being dislodged and he then saw the appellant and Ms Bukowski going down the corridor towards the study.
At that stage, he returned to the kitchen and the parties were then out of his sight. However, he heard a commotion as the appellant and Ms Bukowski continued to argue.
Later he saw the appellant in the lounge, when he was told that Ms Bukowski had telephoned the police.
Dr Nandagopal told the court that she examined Ms Bukowski a little before 11.00 am on the following morning, that is, the Saturday morning. Ms Bukowski appeared distressed and emotional, and she saw bruises on both knees, on the thighs, the face, the chin, the lips and on the back of her head. She complained of headache. Dr Nandagopal prescribed analgesics. She was of the opinion that the injuries which she saw were recent and had occurred within the previous 24 to 48 hours.
Ms Stanway’s evidence was limited to confirming that the signs of injury seen by the police and Dr Nandagopal were not visible while Ms Bukowski was with her earlier on the Friday evening, before Ms Bukowski returned home.
The trial magistrate’s reasons
The trial magistrate correctly directed herself as to the onus and burden of proof.
She said she accepted Ms Stanway’s evidence, from which she concluded that there was an absence of visible injuries on Ms Bukowski’s body prior to the alleged assault.
Mr Weinberger’s evidence as to his observations of Ms Bukowski earlier in the evening before the alleged assault was to the same effect. She accepted that part of Mr Weinberger’s evidence.
After referring to the evidence of Dr Nandagopal, she concluded that the altercation with the appellant was responsible for the injuries which were subsequently observed.
She accepted the three police officers as truthful and reliable witnesses, after briefly summarising their evidence.
As for Mr Weinberger’s evidence, she rejected that part of his evidence which dealt with the events that occurred after Ms Bukowski had returned to the house just after midnight. She found that it was inconsistent with other evidence about the events that occurred at that time.
After detailing the injuries which she found each of the parties had suffered, she turned to what she described as “the disputed evidence”.
She set out Ms Bukowski’s evidence in terms which more or less reflected the account of her evidence which I have set out above.
She then dealt with what was put in cross-examination by the appellant to Ms Bukowski, and reiterated by the appellant in his evidence.
She proceeded to make a series of observations as to what she described as the internal and external consistencies in Ms Bukowski’s evidence.
After referring again to Ms Bukowski’s injuries, she concluded:
Ultimately the injuries that are decisive are the head injuries and the abrasions on her arms and a combination of the cumulative effect of the lack of evidence inconsistent with her account of what occurred in the bedroom. These injuries occurred after she arrived home, all were recent with the exception of an elbow abrasion that was aggravated by a fresher injury. These injuries with the exception of the old elbow injury, could not have been caused only by falling to the floor or by falling to the ground during a bicycle accident two to four weeks earlier. They are consistent with the events described by Ms Bukowski.
If the defendant had only restrained Ms Bukowski in an endeavour to save the data on his computer and propel her away from it and into her bedroom, it is impossible to understand how the skin on the back of her head could have been broken. The same is true of the abrasions on her arms.
Equally the face and ear injuries are consistent with being slapped. It is extremely difficult to conceive any way in which only her face hit a door frame or door frames or a door or a piece of furniture in the course of being propelled or falling without her shoulder or some other part of her torso being injured as well.
She concluded that it was safe to accept and reply upon Ms Bukowski’s evidence as to what had occurred.
She proceeded to enter a finding that the appellant was guilty of the charge.
The adequacy of the reasons
There is ample authority for the proposition that where a judicial decision is subject to appeal, a failure to give adequate reasons is an error of law.[1]
[1] See, for example, R v Keyte (2000) 78 SASR 68, Rowland v Police (2001) 79 SASR 569, Pettitt v Dunkley [1971] 1 NSWLR 376, Public Service Board (NSW) v Osmond (1986) 159 CLR 656, Soulenezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Papps v Police (2000) 77 SASR 210.
The extent of reasons required to satisfy the legal requirement to give reasons will depend upon the circumstances of the case.
I adhere to what I said in Rowland v Police:[2]
[2] Supra at 573.
29… the Magistrates’ Court in its Criminal Division is still a court of summary jurisdiction.[3] Furthermore, it is the court which unquestionably deals with the highest volume of criminal cases of any court in South Australia. It is the court before which by far the greater proportion of those members of the community who are dealt with in the criminal justice system will appear.
30The workload on magistrates has increased substantially in recent years. They are expected to dispose of an ever-increasingly large number of cases.
31Against that background, I would be reluctant to pitch any definitive statement of the obligations of magistrates to give reasons for their decisions at an unrealistically demanding level.
32It is not necessary for magistrates to produce “long and elaborate reasons”, a concise statement is sufficient.[4] See Halsbury’s Laws of Australia:[5]
“… although a court is obliged to give reasons, it is not obliged to explain every step in its reasoning, given the large scope for intuition, evaluation and guesswork.”
33As for matters of law, it will be assumed, without reasons necessarily being given, that the magistrate is familiar with and has correctly applied elementary matters such as an understanding of the onus of proof.
34As for factual matters, it will often be the case that factual issues will be resolved by preferring the evidence of one witness over that of another, particularly where it comes down to a question of “oath against oath”. In such circumstances, it may be sufficient for a magistrate to say that he or she has preferred the evidence of a witness based on an assessment of demeanour, or because one witness was found to be more convincing than another, or because the evidence given by one witness was inherently implausible or for some other shortly stated reason. See R v Keyte per Doyle CJ:[6]
“I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.”
35In almost all cases, a short succinct statement of the essential process by which a magistrate has reached his or her decision is sufficient. More often than not, an economical use of words will reveal the process of reasoning more clearly.
[3] Magistrates Court Act 1991, s 7(2).
[4] See Romilly v Romilly (1934) 151 LT 179 at 180 per Langton J; Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1; Zieta No 59 Pty Ltd v Gold Coast City Council [1987] 2 Qd R 116 and King Ranch Australia Pty Ltd v Cardwell Shire Council [1985] 2 Qd R 182.
[5] Vol 20, par [325-9020] at page 596,148, citing Yates Property Corp Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156. See also Saxer v North Sydney Municipal Council (1988) 64 LGRA 203 at 211 per Bignold J (an assessor’s reasons were sufficient where he stated that he accepted the applicant’s case as presented rather than the opposing case).
[6] At 81.

It does not appear from the magistrate’s reasons that she preferred the evidence of Ms Bukowski in preference to that of the appellant by reference to matters of demeanour or impression. She said:
In this case, the prosecution stands or falls on the evidence of the alleged victim, Ms Bukowski. Corroboration of Ms Bukowski’s evidence is not required as a matter of law or practice. However, as a matter of commonsense, the evidence of a single critical witness requires detailed [consideration] with respect to its internal consistency, its consistency with external and reliable evidence, and its inherent probability (or lack of probability), having regard to the ordinary course of human affairs.
As for the defendant’s evidence, she said:
Putting aside the allegations related to his behaviour on the night in question, the defendant is clearly a person of good character. At the time of the material events, he was working on a thesis for his PhD in chemical engineering, and tutoring at the University of Adelaide. His evidence cannot be lightly dismissed.
As I have said, the magistrate dismissed the evidence of Mr Weinberger on the basis that his account of the struggle in the kitchen did not square with any other evidence and was, in her view, clearly unreliable.
The magistrate’s consideration of the immediate circumstances of the alleged assault, came down to an assessment of the evidence of Ms Bukowski on the one hand and that of the appellant on the other.
As to the defendant’s injuries, she regarded them as of “little assistance” in determining whether Ms Bukowski’s evidence could be accepted or not. She regarded those injuries as not inconsistent with Ms Bukowski’s evidence “or the possibilities that were put to her and she denied”.
She proceeded to hold that she could not find beyond reasonable doubt that one aspect of Ms Bukowski’s evidence, namely that the appellant had gripped her throat with his hands as if to strangle her, had occurred. Although she had described hands around her throat in her statement to Constable Cleggett (a statement which, as I have indicated, was strictly not admissible), she made no mention of it to the doctor, who observed nothing to support that evidence. On that topic, she held that the photographs were “equivocal”.
As to the bruises on Ms Bukowski’s arms, she found that these were equally consistent with Ms Bukowski:
… being held away from the computer and with hitting furniture and falling to the floor. It is possible that this occurred.
As for the grazes on her knees, she took into account Ms Bukowski’s denial that these injuries had been caused, as the appellant had suggested, by consensual sexual intercourse which occurred on the floor two days earlier. She thought it was “inherently improbable” that they were caused in that way but that that matter, standing alone, was not decisive. She concluded:
Ultimately, the injuries that are decisive are the head injuries and the abrasions on her arms, in combination with the cumulative effect of the lack of evidence inconsistent with her account of what occurred in the bedroom. These injuries occurred after she arrived home. All were recent, with the exception of an elbow abrasion that was aggravated by fresh re-injury. These injuries, with the exception of the older elbow injury, could not have been caused only by falling to the floor, or by falling on the ground during a bicycle accident two to four weeks earlier. They are consistent with the events described by Ms Bukowski.
If the defendant had only restrained Ms Bukowski, in an endeavour to save the data on his computer, and propelled her away from it and into her bedroom, it is impossible to understand how the skin on the back of her head could have been broken. The same is true of the abrasions on her arms.
Equally, the face and ear injuries are consistent with being slapped. It is extremely difficult to conceive any way in which only her face hit a doorframe, or doorframes, or a door, or a piece of furniture in the course of being propelled, or falling, without her shoulder, or some other part of her torso, being injured as well.
It seem clearly to have been the case that the magistrate’s preference for the evidence of Ms Bukowski over that of the appellant was grounded on one factor only, and that is what she perceived to be the fact that certain of the injuries which Ms Bukowski suffered were more consistent with her account of the matter.
While it is true, as Mr Abbott put during the course of his submissions on the hearing of the appeal, that the magistrate did not in her reasons set out any detailed analysis of the evidence given by the appellant, or her reasons for rejecting it, relying on Papps v Police,[7] he submitted that it followed that the reasons were inadequate.
[7] Supra.
In Papps v Police, the magistrate at first instance set out in his reasons for decision a detailed examination of the evidence given by the prosecution witnesses and gave reasons for his acceptance of that evidence, but did not expressly state reasons for rejecting certain evidence given by the defendant and a witness called by the defendant. In the course of his judgment, with which Olsson and Wicks JJ agreed, Gray J observed:
[36]The issue that then arises is whether the magistrate’s reasons in this matter were adequate. The resolution of the issue of credit was central and critical to a proper consideration of the charges. The magistrate dealt with the credit of the police witnesses, and his assessment of them, but he did not deal at all with the credit of the defendant or his witnesses or his assessment of them. He gave no reasons for his rejection of the defence case. …
[38]This court is left to speculate as to why the defence evidence was rejected. The magistrate failed to reveal the reasoning on which the critical finding was based. The lack of reasons frustrates the performance by this Court of its appellate duties. The magistrate’s reasons were inadequate.
Not without some hesitation, I do not think that the same criticism can be levelled at the magistrate’s reasons in this case. As I have said, she seems clearly to have accepted the prosecution case and preferred the evidence of Ms Bukowski by reason of her analysis of the nature of the injuries which Ms Bukowski suffered.
The magistrate also commented:
Ms Bukowski’s evidence was internally consistent. There was nothing about her demeanour that invited rejection of her evidence on that basis. She was clear, and she was confident. When cross-examination became very prolonged she occasionally sought to trade insults with the defendant and on one occasion she lost her temper. There was nothing unusual about this in the circumstances of this trial.
I think it would have been better if the magistrate had also commented upon the manner in which the appellant gave his evidence. She said nothing about that.
But it was not any comparison between their demeanour while giving evidence which was the stated reason why she preferred Ms Bukowski’s evidence.
In all the circumstances, I think that the reasons, while they might desirably have dealt at greater length with the evidence given by the appellant and the manner in which he gave the evidence, were not inadequate.
That circumstance, however, does not mean that the finding of guilt should be upheld. There may be other reasons why this Court should interfere.
The approach by this Court
In Taylor v Hayes I made the following observations:[8]
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate’s findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the magistrate upon which it was open for him to reach the decision the subject of the appeal.
[8] (1990) 53 SASR 282 at 291.
In Rowland v Police[9] I repeated the view which I expressed in Taylor v Hayes:
[38]The question on the hearing of an appeal from a magistrate is not whether there was material upon the basis of which it was open to the magistrate to reach the conclusion which he or she did. On the contrary, the question is whether or not, having reviewed the evidence for itself, while making due allowance for the advantage held by the magistrate in seeing and hearing the witnesses, the court is satisfied that the judgment under appeal is correct.
[9] (2001) 79 SASR 569 at 574.
In the subsequent decision of the High Court in Devries and Anor v Australian National Railways Commission and Anor[10] the majority held:
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”.
[10] (1992-1993) 177 CLR 472 at 479. See also Fox v Percy (2003) 214 CLR 118.
However, in this case, although in one sense the critical finding by the magistrate was based upon the credit of the witnesses, in preferring the credit of Ms Bukowski, the magistrate did not on the face of it rely simply upon the witness’s manner of giving evidence or demeanour, but rather on objective facts which she considered to be more consistent with Ms Bukowski’s testimony.
If she erred in her finding as to those objective facts, this would provide a proper basis for this Court to intervene.
The argument on appeal
As I have said, the principal argument advanced by Mr Abbott was as to the adequacy of the reasons of the trial magistrate. I have already dealt with that argument.
I have also referred earlier to the passage in the reasons of the trial magistrate in which she expressed the view, critical to her conclusion that she ultimately reached, that if Ms Bukowski had suffered her injuries in the manner suggested by the appellant, it was “impossible” to understand how the skin on the back of her head could have been “broken”.
As Mr Abbott has pointed out, there is no evidence that could support a finding that the skin on the back of the head was broken.
Part of Ms Bukowski’s evidence when she was being cross-examined by the appellant was to this effect:
Q.Did you have a scratch on the back of your head.
A.No, I had a huge migraine.
Q.But you didn’t have any scratches on the back of your head.
A.I didn’t look there, no, I had a huge pain.
Q.So the pain, was it due to a blow or was it due to scratches.
A.I didn’t think I sustained any scratches. It was due to the constant blows on the floor.
Q.Dr Nandagopal said that you have scratches on the back of your head. How do you think you came by these scratches that Dr Nandagopal saw on the back of your head.
A.I have no idea.
As to Dr Nandagopal’s evidence, she said that when she examined Ms Bukowski she had some bruising on the back of the head. Later in the course of cross-examination she said that what she saw were in fact scratches to the back of the head, not lacerations:
Q.Were they very deep scratches or minor sorts of scratches.
A.Not very deep.
…
Q.They were quite serious scratches.
A.Not really serious. If it was serious we would have done something. There was no treatment needed but definite scratches.
Q.She didn’t need any stitches.
A.No.
Q.They weren’t lacerations.
A.Yes.
Q.Light scratches.
A.Yes.
…
Q.You saw through the hair and saw the very light scratches.
A.Yes.
The appellant’s evidence was that there were three struggles, albeit in quick succession, as he was endeavouring to restrain Ms Bukowski. During the course of one of them they fell to the ground and Ms Bukowski fell on her back.
On the accounts given by both the appellant and Ms Bukowski, they struggled violently.
The evidence of Dr Nandagopal was not given in terms which could lead to a confident finding that the injuries were more likely to have been caused in the manner suggested by Ms Bukowski, as opposed to being caused in a struggle of the kind suggested by the appellant.
The error on the part of the magistrate in her understanding of the evidence as to the nature of the injuries to the back of the head, given the manner in which she reasoned towards her conclusion, is in my view fatal to the soundness of that conclusion.
I have carefully reassessed the evidence for myself, including the evidence of the photographs. The marks apparent on Ms Bukowski’s body were not indicative of any severe injury. Given the prolonged nature of the struggle between the two parties, I do not think that it could safely be concluded that the injuries were so clearly more consistent with the account given by Ms Bukowski, that by reference to that evidence alone, her account of the matter should be accepted beyond reasonable doubt.
If the trial magistrate had reached a clear view as to credit based on her impression of the two protagonists and their demeanour, it would have been more difficult for this Court to interfere.
However, that was no so. In my view, the trial magistrate’s conclusion of guilt was not soundly based. The appeal should be allowed.
In those circumstances, it is unnecessary to deal with the other grounds of appeal.
Conclusion
I have considered the question whether or not I should order a retrial before another magistrate.
In the particular circumstances of this case, I do not think that that course would be warranted. The accounts given by each of the parties as to the circumstances of the alleged assault are so diametrically opposed, in the absence of any evidence which could give sufficient buoyancy to the account given by the complainant to justify a conclusion of guilt, no useful purpose would be served by directing a retrial.
The order is, therefore, that the appeal be allowed and the finding that the charge was proved is quashed.
I will hear the parties as to costs.