ASLIN v Police - [2017] SASC 179

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ASLIN v POLICE
[2017] SASC 179
Judgment of The Honourable Justice Doyle
5 December 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - GENERALLY
The appellant was convicted in the Magistrates Court of assault and failing to give particulars following a car accident, both of which offences arose from a road rage incident. In sentencing, the Magistrate recorded convictions for both offences and imposed other ancillary penalties.
The appellant brings an out of time appeal challenging the conviction for assault, essentially on the grounds that the Magistrate erred in his treatment of the evidence of an independent witness, and in rejecting the evidence of the appellant. The appellant also appeals against sentence, on the ground that the Magistrate erred in rejecting the appellant’s submission that he should exercise his discretion not to record a conviction.
Held per Doyle J, allowing the extension of time but dismissing the appeal:
1. No error has been established in the Magistrate’s treatment of the evidence of the independent witness, or in his rejection of the appellant’s evidence.
2. No error has been established in the Magistrate's rejection of the submission that he should decline to record a conviction.
Road Traffic Act 1961 (SA) s 24; Criminal Law Consolidation Act 1935 (SA) s 20, s 85; Australian Road Rules r 287; Supreme Court Civil Rules 2006 (SA) r 286; Criminal Law Sentencing Act 1988 (SA) s 16, s 39, referred to.
Taylor v Hayes (1990) 53 SASR 282 ; Wade v Australian Railway Historical Society (2000) 77 SASR 221; Fox v Percy (2003) 214 CLR 118; Gazepis v Police (1997) 70 SASR 121; Theophilus v Police (2011) 110 SASR 420; R v Powell [2014] SASCFC 48; Lumb v Police [2008] SASC 198, discussed.

ASLIN v POLICE
[2017] SASC 179
Magistrates Appeal: Criminal

DOYLE J: After a trial before a Magistrate, the appellant was found guilty of assault and failing to give particulars following a car accident. Both offences arose out of a road rage incident that occurred on the South Eastern Freeway on 28 January 2016.
The Magistrate recorded convictions for both offences, and imposed fines of $1,200 and $100 respectively. His Honour also ordered that the appellant pay court costs, a prosecution fee and the victims of crime levy.
In this appeal, the appellant challenges both his conviction for assault, and the sentences imposed. The appeal against conviction raises a number of issues, but focuses upon the Magistrate’s treatment of the evidence of an independent witness, Mr Pedlar, and the Magistrate’s rejection of the version of events given by the appellant in his police interview and evidence. In his appeal against sentence, the appellant contends that the Magistrate erred in recording a conviction.
The appeal against conviction was not brought within the prescribed time. But as there is no opposition to me doing so, I will grant the necessary extension of time.
Background
At about 7.20 pm on 28 January 2016, the appellant and the victim (Ms Wilmott) were driving their respective vehicles in an easterly direction along the South Eastern Freeway. The prosecution case was that after being overtaken by Ms Wilmott, the appellant began tailgating Ms Wilmott’s vehicle. Both vehicles exited the Freeway at the Mount Barker exit.
Both vehicles continued along the exit in an easterly direction towards an intersection. As they approached the intersection, the exit road divided into two lanes and then, immediately prior to the intersection, three lanes. There was a left hand slip lane to Littlehampton. There were two lanes to the right of this controlled by traffic lights. The lane to the far right was for traffic turning right to Mount Barker. The lane in the middle was for traffic either turning right to Mount Barker or going straight ahead (and back onto the Freeway).
On the prosecution case, after initially driving alongside Ms Wilmott as they travelled along the exit road, the appellant changed lanes and pulled in behind Ms Wilmott’s vehicle in the left hand slip lane. In so doing, the appellant drove his vehicle into the rear of Ms Wilmott’s vehicle. The appellant’s vehicle then drove into the rear of Ms Wilmott’s vehicle a second time.
Ms Wilmott and the appellant got out of their vehicles, and a verbal altercation ensued. During the course of this the appellant made physical contact with Ms Wilmott. The prosecution case was that he did so by pushing Ms Wilmott with both of his hands to her upper chest, with sufficient force to wind her and cause her to stagger backwards. On the appellant’s case, Ms Wilmott was waving her hands in his face and he merely pushed her hands away.
During the course of her encounter with the appellant, Ms Wilmott took photographs of him and his vehicle. However, the appellant left without providing his name and address.
The appellant was charged with driving without due care (count 1),[1] damaging a motor vehicle (count 2),[2] assault (count 3)[3] and failing to give particulars (count 4).[4]
[1] Contrary to s 24 of the Road Traffic Act 1961 (SA).
[2] Contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA).
[3] Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
[4] Contrary to r 287 of the Australian Road Rules.
Count 1 related to the appellant’s driving at the time he moved into the slip lane behind Ms Wilmott’s vehicle. Count 2 related to the damage caused to Ms Wilmott’s vehicle when he made contact with the rear of it. Count 3 related to his physical contact with Ms Wilmott. And count 4 related to his failure to provide Ms Wilmott his name and address prior to leaving the scene of the accident.
The trial was heard by the Magistrate in March 2017. The prosecution led evidence from Ms Wilmott, Mr Pedlar (an independent eye witness) and Senior Constable McGradey (the investigating officer, whose evidence was largely formal). The defence tendered the appellant’s police interview, and called evidence from the appellant.
The Magistrate’s reasons
The Magistrate found the appellant not guilty of counts 1 and 2, and guilty of counts 3 and 4.
The Magistrate commenced his reasons by summarising the evidence of the four witnesses, and adverting to some of the issues that arose in relation to their evidence.
Ms Wilmott’s evidence was that she was driving home from work on the Freeway towards Mount Barker. She was driving at about 110 kph. She came up behind a blue car (the appellant’s car), which she proceeded to pass when it pulled into the left lane. Shortly afterwards, and while she was alongside a truck that she was overtaking, the same car approached her rapidly from behind. She estimated that it came within 30 cms of the rear of her car. In her rearview mirror she saw the male driver apparently saying something and looking angry. She was confused because she did not think she had tailgated his car when she had passed it previously.
After passing the truck, Ms Wilmott moved into the left lane, and the blue car followed behind her. She took the Mount Barker exit, and the blue car followed. As she approached the intersection on the exit road, and when the single lane of the exit became two lanes, she took the left lane (towards Littlehampton) and the blue car took the right lane (towards Mount Barker). She saw the driver of the blue car gesturing rudely with his finger and yelling at her. She was confused and gestured in response to indicate she did not know what was going on or what was wrong with him.
The blue car then moved into the left lane behind her, colliding with the rear of her car as it did so. It then collided with the rear of her car again.
Ms Wilmott got out of her car to check the damage. She went to the rear of her car, but could not get behind it because the blue car was too close. The appellant got out of his car. He came very close to her, yelling and swearing at her, including calling her a fucking cunt and a fucking tailgater. She described him as very aggressive and getting in her face. She got her phone out to take a photograph of him, and the appellant then backed off and got back into his car. When she took a photograph of him through the window of his car, he pulled up a towel to cover his face. She also took a photograph of his numberplate. While half out of his car the appellant said that he had her numberplate too, adding “you’re screwed as well”.
According to Ms Wilmott, the appellant then got out of his car and pushed her with both of his hands to the area of her collarbones. The push was hard enough to hurt and make her step backwards. After rebuking him for touching her, and saying that she had photographs and was going to the police, Ms Wilmott got back into her car and drove off.
In terms of damage to her car, Ms Wilmott said that there had not been any damage to her rear bumper prior to the incident. After the incident there was damage in the form of chipped paint. She was quoted $1,449 to repair the damage.
During cross-examination, Ms Wilmott denied that she was speeding when she initially drove up behind the appellant’s car. She also denied slowing when he came up behind her. She said she was using cruise control, and that her speed remained constant. Ms Wilmott also denied that the appellant ever went past her prior to her taking the exit, and in particular denied that she then overtook him on the left using the emergency vehicles lane of the exit road (and gesticulating at him as she did so). She denied slamming on her brakes at the point where the exit split into two lanes.
The Magistrate was impressed by the evidence of Ms Wilmott. After summarising her evidence, he said:
Ms Wilmott made a good impression upon me as a witness. She coped well with cross examination. Her evidence was clear and cohesive, with the noted exception as to the duration of the trip from work. She appeared to be truthful and such was my favourable impression of her demeanour and her evidence that my view of her reliability was unaffected by the curious evidence of the time it took her to drive from work.
The independent eye witness, Mr Pedlar, was stationary at the traffic lights at the intersection on the exit road. He was waiting to turn right (in the left of the two lanes for turning right), and saw Ms Wilmott’s vehicle in front of the appellant’s vehicle in the left lane turning towards Littlehampton. He was about 10 to 15 metres from their vehicles. He then saw the appellant’s car, which had been stationary, move forward about a metre and make contact with Ms Wilmott’s car.
Mr Pedlar saw both drivers get out of their cars. Ms Wilmott appeared to go to the back of her vehicle to inspect the damage. Both Ms Wilmott and the appellant then exchanged words. While he could not hear what they were saying, they were “into one another verbally”. Mr Pedlar said that Ms Wilmott had her hands out and was gesturing towards the appellant. He variously described (or demonstrated) her hands as being upwards or sideways, as though she was saying “what’s the story ?”
Mr Pedlar said that he then saw the appellant push Ms Wilmott, using both hands, to the upper part of the front of her shoulders. She stumbled backwards. He did not agree that the appellant had merely pushed Ms Wilmott’s hands back, or even onto her own body. He did not accept that she had been “in his face”. He said she was about two metres away from the appellant, but acknowledged that she had come a bit closer.
Mr Pedlar said that he was concerned for Ms Wilmott, and so when the lights changed he turned right and went to the Mount Barker police station to report what he had seen.
The Magistrate was also impressed by the evidence of Mr Pedlar, stating:
Mr Pedlar was plainly a truthful witness and some aspects of the incident obviously made a very clear impression upon him, particularly the hitting of Ms Wilmott’s vehicle by the defendant’s vehicle, and the nature of the push of Ms Wilmott by the defendant and the great concern he had for her as a result. It is clear that he did not correctly remember the colour of Ms Wilmott’s car. While his evidence was independent and of considerable assistance, it is clear either that he did not see the whole incident or that there are details which he does not correctly remember, or both. His evidence is inconsistent with Ms Wilmott’s in some respects, and in some respects with that of the defendant.
The appellant gave a quite different version of events, in both his police interview and his evidence.
According to the appellant, he had been driving along the Freeway at about 110kph or 115kph when a sliver vehicle (Ms Wilmott’s vehicle) came up fast behind him and started tailgating him. He pulled over to let her pass, which she did at about 120kph. He then drove behind her, keeping two or three car lengths distance back from her car. After a while, the silver vehicle slowed as it went up a hill. As it went over the crest, it pulled into the left lane, and he passed it on the right. He noted the female driver as he passed the car.
The appellant said that as he took the Mount Barker exit, and drove along the exit road towards the intersection, he saw the silver vehicle passing him on the left in the emergency vehicles lane. The driver was gesticulating at him with her hands as she went passed. The appellant shrugged his shoulders and put his hands up in the air. The appellant said he was always intending to head left at the intersection (to go to the Great Eastern Hotel that he regularly went to for dinner on a Thursday evening after going to the gym), and so already had his left indicator on as the silver vehicle overtook him on the left.
He drove into the left lane at the intersection. There were other vehicles stationary at the lights at the intersection. The silver vehicle stopped initially and then began to roll forward. The appellant eased off his brakes, expecting the silver vehicle to keep going. Then, all of a sudden, the vehicle in front broke heavily, forcing him to do the same.
The appellant said he was not aware of hitting the silver car, at one point adding that if there had been a collision it was “absolutely minor because I didn’t feel anything”. The driver of the silver car got out of her car and started walking towards him. He got out of his car, and she started abusing him. His response was to ask her what was going on. He did not abuse her at all. But he could not recall any of what she said to him. He had no idea what she was angry and agitated about. She was waving her arms around, including in his face. He told her not to put her hands in his face, and pushed her hands away. He was not willing to put up with her abuse anymore and so got back in his car. He denied pushing her shoulders.
When asked to explain the photograph of him in the front of his car with a towel around his head, the appellant said that Ms Wilmott had pulled out her phone and walked up to his driver’s side window, and took photos of him and his numberplate. He had a towel wrapped around his head in the photograph because he was sweating profusely from the gym session he had just come from, and because it was a hot day. After driving off, he drove home to Mount Barker as he was quite upset by the incident and so decided not to go out for dinner.
The Magistrate was not impressed by the appellant’s evidence. He made a number of specific criticisms of his evidence and credibility during the course of his summary of that evidence, before stating:
For reasons which I have sufficiently canvassed during the foregoing summary of the defendant’s evidence, I was not impressed with the defendant as a witness or with his evidence and on critical matters did not regard him as truthful or credible.
Consistently with his views of the evidence of Ms Wilmott and the appellant, the Magistrate based his findings primarily on the evidence of the Ms Wilmott:
My factual findings in this matter primarily rest on my view of the credibility and reliability of Ms Wilmott as a witness and my adverse view of the defendant’s credibility. In accepting Ms Wilmott’s account of events, I reject beyond reasonable doubt the defendant’s account where it is inconsistent with hers.
The Magistrate then made the following findings, which he said were findings beyond reasonable doubt unless otherwise indicated:
Shortly before 7:20pm on the day in question, just after the Hahndorf exit, as Ms Wilmott drove on the South Eastern Freeway with her cruise control set to 110km/h, she came up behind the defendant’s car, which pulled over to the left, and she proceeded on her way. I am mindful that her car’s speedometer might not accurately read 110km/h. I am also mindful that when driving on cruise control among traffic travelling at varying speeds, unless a driver is driving with anticipation, constantly ready to switch off or override cruise control, it is possible to come up too close behind a slower vehicle ahead. I consider it likely that this occurred and that the defendant took offence.
Shortly afterwards, as Ms Wilmott was passing a truck, the defendant approached from behind and tailgated her vehicle, which was travelling at a constant speed as dictated by her cruise control, as she passed the truck and then pulled into the left lane. The defendant was angry and saying things directed at her, as seen by her in her rearview mirror. She did not understand what he might be angry about.
The defendant remained behind her until she took the Mount Barker exit. When the single lane of the exit divided into two, she took the left lane and the defendant travelled in the right lane. I regard it as likely that the defendant then intended to turn right and go home. As the two cars were side-by-side, the defendant was gesturing rudely with his finger and yelling at Ms Wilmott. She was confused and foolishly engaged with the defendant, gesturing to indicate she did not know what he was on about. I reject as untrue the defendant’s evidence that Ms Wilmott passed his vehicle to the left in the emergency services lane.
As she moved into the left turn lane or slip road, the defendant made a late decision to also take that lane and follow behind Ms Wilmott. I reject as untrue the defendant’s evidence that he intended from the outset to turn left and go to the Great Eastern Hotel for dinner rather than to turn right and go home.
The Magistrate explained that the appellant’s manoeuvre in changing lanes was the conduct relied upon by the prosecution as constituting the driving without due care the subject of count 1. The Magistrate reasoned that because there was little or no evidence as to how the appellant undertook this manoeuvre, he could not conclude beyond reasonable doubt that he did so without the required degree of care and attention. The appellant was thus not guilty of that first count.
The Magistrate continued his findings:
The defendant then moved into that [left] lane behind her and then collided with the rear of her car, with minor force. There is not sufficient evidence upon which to draw conclusions of the exact movements of Ms Wilmott's vehicle as this occurred, or whether it was by then stationary. I put to one side the evidence of the defendant that she began to move off and braked suddenly and the defendant braked heavily, not being aware that he had struck Ms Wilmott’s vehicle. Whilst I am not prepared to act on his evidence, neither am I prepared to conclude that he struck her vehicle deliberately on the first occasion. The circumstances allow me to express the view that at the very least he was driving without due care and attention when he struck the rear of the vehicle, but this was not the subject of an alternative charge. I find beyond reasonable doubt that the defendant was angry with Ms Wilmott for what he perceived as her bad driving, and if he did not drive into her vehicle deliberately, it is likely that his anger contributed to his want of care and attention.
I find that after striking her vehicle with his on that first occasion, he did so again, on this occasion also not with great force. His car was stationary before moving forward to strike Ms Wilmott’s car and so was hers, as observed by Mr Pedlar… It is likely, in my view that at least on this second occasion, the defendant intended to strike Ms Wilmott’s vehicle with his. However, I cannot dismiss as a reasonable possibility that the defendant was simply driving very badly as a result of his extreme anger, evidenced by what I find occurred after he got out of his car. Although I find that the defendant’s actions resulted in damage to Ms Wilmott’s bumper bar, which undoubtedly would require removal and repainting to repair, on the basis of my findings the charge of damaging property cannot be made out, as I have not found beyond reasonable doubt that the defendant intended to strike her car with his and even if I had, I could not have concluded, given the low speed of the impacts, that the defendant did so with a specific intention to cause damage, as alleged.
Ms Wilmott immediately got out of her car and went to the rear of it to check the damage. The defendant got out of his car and was angrily yelling at her, swearing and cursing, including calling her a fucking cunt, fucking tailgater and saying fuck you. He got very close to her as he did so, being extremely aggressive and intimidating. Ms Wilmott got her phone out, at which the defendant backed off and got back in his car. She took a photograph of him through the window of his car but he pulled up a towel, with the intention of covering his face while she did so. (I reject his evidence to the contrary). The defendant then opened his car door and half got out, saying, ‘I’ve got your numberplate too, you’re screwed as well’. She went back to the back of her car and said to him that she had not hit him (his car) and that she had a picture of his numberplate. The defendant then got out of his car completely and pushed her with both hands to the area of her collarbones. It is likely that there were words exchanged at this time as well. The push was hard enough to hurt Ms Wilmott and make her step backwards. At this stage she got angry, saying ‘How dare you touch me, you don’t touch me, I’ve got photographs, I’m going to the police.’ She got back into her car and drove off. I accept, as deposed to by Mr Pedlar, that Ms Wilmott moved slightly towards the defendant before he pushed her. I also find that her arms were up sideways, with palms facing upward, as if remonstrating but without threatening in any way. I reject as untrue the defendant’s evidence that she was waving her arms about in his face and that his training kicked in ‘defend, deflect and step away’ and that he pushed her arms away. The genuine belief he asserted, upon which he claims to have been acting in self-defence is rejected beyond reasonable doubt. The defendant in this matter was the aggressor. He cannot call in aid a belief in the need to defend himself. I find beyond reasonable doubt that the defendant intentionally applied force to Ms Wilmott by pushing her hard in the upper chest or collarbone area, that she did not consent and that the defendant did not genuinely believe that he was being attacked or threatened with attack or that the push was necessary and reasonable for any defensive purpose. I find the defendant guilty of count 3, the offence of assaulting Ms Wilmott.

Turning to count 4, the Magistrate reasoned:
I find that the defendant knew he had collided with Ms Wilmott’s vehicle and, accordingly, the duties stated in Rule 287 of the Australian Road Rules were enlivened. He was required to provide to Ms Wilmott the required particulars (which include his name and address), within the required time and, if practicable, at the scene of the crash. “Required time” is defined as meaning “as soon as possible but, except in exceptional circumstances, within 24 hours after the crash”.
It is submitted on behalf of the defendant that it was not practicable for the defendant to give those required particulars at the scene of the crash because there occurred a heated exchange, following which he got in his car and drove away. I have found that there was indeed a heated exchange but that it occurred at the instigation of the defendant, who upon exiting his vehicle was immediately aggressive and abusive. Whilst I accept that it might not be practicable for a person to give his name and address whilst engaged in such conduct, I also conclude that a person cannot, by such conduct, avoid the obligation to give those particulars where it would otherwise be practicable.
It was also submitted by counsel for the defendant that the defendant gave those particulars to police within a relatively short time afterwards and is thereby relieved of the obligation to comply with Rule 287(2) by complying with the obligation pursuant to Rule 287(3) which provides that the driver must also give the driver’s required particulars, within the required time, to a police officer if the driver does not, for any reason, give the driver’s required particulars to (the driver). I reject this argument and conclude that compliance with Rule 287(3) is a further requirement, compliance with which cannot excuse non-compliance with Rule 287(2). I find the offence charged in Count four proved beyond reasonable doubt.
Appeal against conviction
The appellant’s notice of appeal contains twelve grounds of appeal. Ground 2 relates to Mr Pedlar’s evidence. Grounds 9 and 11 relate to the suggestion of recent invention in relation to the appellant’s evidence that Ms Willmott overtook him on the left using the emergency vehicles lane. Grounds 1, 3, 4, 5, 6, 8, 10 and 12 relate to various challenges to the Magistrate’s approach to the appellant’s evidence and credibility. Ground 7 was abandoned.
None of the grounds of appeal challenge the Magistrate’s finding that the appellant was guilty of count 4; they all relate to his finding that the appellant was guilty of count 3.
In approaching the appellant’s various grounds of appeal, and challenges to the Magistrate’s findings, I bear in mind that the appeal is one by way of rehearing.[5] This requires that I undertake an independent review of the evidence and findings below, and form my own view as to the appropriate outcome.[6] That said, the appeal is not a hearing de novo, and I should not substitute my own view, or otherwise interfere, unless satisfied that the Magistrate has made an error.[7] Further, in conducting my own review of the evidence and findings below, while not shying away from the task of weighing conflicting evidence and drawing inferences where appropriate, I should nevertheless have regard to the findings of the Magistrate below, and any advantage he may have had in making those findings. In particular, I should be mindful of the Magistrate’s advantage in assessing the credibility of witnesses, and in so doing be guided by the principles set out in Fox v Percy.[8]
[5]    Supreme Court Civil Rules 2006 (SA), r 286(1).
[6]    Taylor v Hayes (1990) 53 SASR 282 at 291.
[7]    Wade v Australian Railway Historical Society (2000) 77 SASR 221 at [38]-[40].
[8]    Fox v Percy (2003) 214 CLR 118 at [126]-[128].
Where, as here, the challenge is to a finding of fact based upon credibility findings, or at least a preference for the evidence of one witness over another on a particular topic, it is important that, in conducting my own review of the evidence and findings, I bear in mind the Magistrate’s advantage of having presided over the trial below, and in particular of having seen and heard the witnesses in question give evidence at length and in the context of the trial as a whole. That said, and consistently with the approach summarised above, the mere fact that the finding in question was based upon a preference for the evidence of one witness over another does not mean that I must accept it. For example, if I were satisfied that the finding was contrary to some incontrovertible fact, some other uncontested testimony, or was otherwise glaringly improbable or contrary to some compelling inference,[9] then this might justify a conclusion that the finding was made in error and hence justify my intervention.
[9] Fox v Percy (2003) 214 CLR 118 at [26]-[29].
If error is established, then in the usual course the appeal would be allowed. However, establishing error will not always result in the appeal being allowed. If, despite error, the respondent persuades the court that there has been no miscarriage of justice (for example, by reason of the overwhelming strength of the prosecution case, or the inconsequential nature of the error), then the court may nevertheless dismiss the appeal.[10]
[10] Gazepis v Police (1997) 70 SASR 121 at 129; Theophilus v Police (2011) 110 SASR 420 at [51]-[56].
Evidence of independent witness Mr Pedlar
Ground of appeal 2 is that the Magistrate erred in accepting Ms Wilmott’s account of the sequence of events prior to physical contact with the appellant, which was contrary to the accounts given by the appellant and by the independent witness, Mr Pedlar.
As developed in submissions, the focus of this ground of appeal was the appellant’s contention that in preferring Ms Wilmott’s version over that of the appellant the Magistrate overlooked, or did not properly bring to account, four inconsistencies or discrepancies between the evidence of Ms Wilmott and Mr Pedlar. The four aspects of Mr Pedlar’s evidence addressed were:
·    He did not mention seeing the appellant change from the right to left lanes as he approached the intersection on the exit road.
·    He only mentioned one impact between the appellant’s and Ms Wilmott’s cars.
·    He described the appellant getting out of his car once, not twice.
·    He said that Ms Wilmott stepped closer to the appellant, and accepted that the appellant made contact with her hands.
The first two of these may be fairly easily put to one side. They are both readily capable of being explained by Mr Pedlar not having seen the entirety of the relevant events. Mr Pedlar said he was first in line at the intersection on the exit road and so there is every chance that the appellant’s car arrived at the intersection from behind him such that he did not see it change lanes. Similarly, while he did suggest that he had been watching for about five seconds before seeing the appellant’s car “tap” Ms Wilmott’s car, it may be that there was contact between the two cars before Mr Pedlar started watching them. Alternatively, the contact may have been sufficiently minor that Mr Pedlar simply did not notice it.
While the Magistrate did not specifically address the differences between the evidence of Ms Wilmott and Mr Pedlar on these two issues, a trial judge is not required to address every issue of fact arising on the evidence. In my view, these matters were adequately addressed by the trial’s judge statement, when dealing with the significance of Mr Pedlar’s evidence, that “it is clear either that he did not see the whole of the incident or that there are details which he does not correctly remember, or both”.
If, as I have suggested, the first two differences are a result of Mr Pedlar not seeing the entirety of the relevant events, then they are not inconsistencies between the evidence of Mr Pedlar and Ms Wilmott. It thus cannot be inferred that the Magistrate rejected Mr Pedlar’s evidence on these two issues. Nor, in my view, has the appellant otherwise established error in the Magistrate’s treatment of the evidence on these two issues.
The third issue does involve an inconsistency in the sense that if, as Ms Wilmott said, the appellant twice got out of his car, this occurred during the period of Mr Pedlar’s observations and there is no reason to think that he would not have seen it happen. While the suggestion that the appellant returned to his car before getting out again was not squarely put to Mr Pedlar, he did not make any reference to the appellant getting out of his car twice. I accept that this inconsistency in the evidence is of some significance, and should ideally have been explored further in the evidence or in the Magistrate’s reasons. However, I am not persuaded that it establishes error on the part of the Magistrate. The Magistrate may have intended to include this within his reference to Mr Pedlar not remembering some things correctly, and his acknowledgment that Mr Pedlar’s evidence was in some respects inconsistent with Ms Wilmott’s. In any event, I am not satisfied that this difference in Mr Pedlar’s evidence was of sufficient significance to indicate error in the Magistrate’s decision to accept Ms Wilmott’s evidence on this issue, let alone her evidence as to the circumstances of the assault itself.
In addressing the fourth aspect of Mr Pedlar’s evidence relied upon by the appellant, the appellant makes the interrelated contentions that the Magistrate erred:
· in describing Mr Pedlar as having “rejected the suggestion that the pushing involved was the defendant pushing his hands onto her arms and pushing them back on or against the upper part of her body”; and
· in rejecting as untrue the appellant’s evidence that he pushed her arms away.
The appellant in effect contends that the Magistrate mischaracterised Mr Pedlar’s evidence on this issue, and thus overlooked, or took inadequate account of, his acceptance that the appellant did make contact (or, on the appellant’s submission, only made contact) with Ms Wilmott’s hands.
In order to assess this submission, it is necessary to consider two passages from Mr Pedlar’s evidence.
First, in his evidence-in-chief, Mr Pedlar mentioned that he saw Ms Wilmott and the appellant having “a few words”, adding “I just saw him push her – like physically push her away”. He then gave the following evidence:[11]
Q1You said that he then pushed her and you demonstrated with both hands.
A1Just both hands.
Q2Where did that connect with –
A2Just up here, upper shoulder (INDICATES).
Q3What happened when that occurred.
A3She fell – she didn’t fall on the ground she just went backwards.
[11] Numbering inserted for ease of reference.
Secondly, in cross-examination, Mr Pedlar gave the following evidence:
Q4Right. What you got the strong impression about, perhaps I’ll put it this way, she got out of the car and she had her hands out and was gesturing towards the other man, wasn’t she.
A4Hm-mm.
Q5And the two of them came close to each other at that point before the shouting took place, do you agree with that.
A5Yes, I agree.
Q6And her hands were up at the time, gesturing, at the time she was pushed.
A6Yes.
Q7And what I suggest the pushing involved was him pushing his hands onto her arms and pushing them back on the upper part of her body to push her back, is that how it was.
A7Well, not necessarily. The way I’ve sort of looked at it, it’s like he’s sort of – the lady wasn’t really in his face. She was probably, you know, two metres away.
Q8Two metres.
A8Yeah, and then she came a bit closer and then he sort of put his hands out like that.
Q9Precisely, she came closer, and that’s what caused him to push [her] hands away.
A9Yeah.
OBJECTION: [Not transcribed].
HIS HONOUR: I’m not happy with the state of the evidence and it relates to the framing of the question.
Q10She was a couple of metres away. She came closer to him and he then pushed her, is what you’ve told us, isn’t it.
A10Yes.
Q11After he pushed her in the way you’ve described, he got back into his vehicle, didn’t he.
A11That’s correct.
Q12You then drove off to report the matter.
A12That’s right.
The above passages from Mr Pedlar’s evidence must be considered in the context of both Ms Wilmott’s evidence and the appellant’s evidence. Ms Wilmott said that the appellant pushed her in the collarbone chest area, and denied that the appellant pushed her hands away from her face. The appellant, on the other hand, denied pushing Ms Wilmott in the chest, but acknowledged pushing her hands away from his face.
I do not accept the appellant’s primary submission on this topic, namely that Mr Pedlar’s evidence was consistent with the appellant’s evidence and confined the appellant’s contact with Ms Wilmott to pushing her hands. Mr Pedlar’s evidence-in-chief (including answer 2 above) was clearly to the effect that the appellant pushed Ms Wilmott, and did so to her “upper shoulder” area.
I will come in a moment to the references to pushing Ms Wilmott’s hands, but I do not accept that Mr Pedlar’s evidence under cross-examination can be construed as him recanting from his evidence that the appellant pushed Ms Wilmott to her upper shoulders. Certainly he was never squarely asked, and never squarely said, there was no push to Ms Wilmott’s upper shoulders or chest. To the contrary, question 10 appears to have been an invitation to Mr Pedlar to confirm his earlier evidence of a push, which Mr Pedlar did. While question 11 was more equivocal by reason of its rolled up nature, it also assumed a push, which Mr Pedlar confirmed as correct. It is possible that the cross-examiner, in asking questions 10 and 11, had in mind the references back in questions 7 and 9 to pushing Ms Wilmott’s hands away. But I do not accept that this is the most natural or obvious reading of the evidence. At the very least, my construction of the evidence is open, and was open to the Magistrate. If the cross-examiner intended to have Mr Pedlar contradict or recant from his earlier clear evidence of a push to Ms Wilmott’s upper shoulders in his evidence-in-chief, then this ought to have been attempted more directly and clearly.
In the above circumstances, and bearing in mind that the Magistrate had the advantage of seeing and hearing Mr Pedlar give his evidence, I am not satisfied that there is a proper basis to find error in the Magistrate’s interpretation of Mr Pedlar’s evidence as involving the appellant pushing Ms Wilmott to the upper shoulders or chest area.
However, there remains the reference by the Magistrate to Mr Pedlar having “rejected” the suggestion that the appellant pushed Ms Wilmott’s hands, pushing them onto her upper body. This proposition was the subject of question 7 in the above extract from Mr Pedlar’s evidence. He answered “well, not necessarily”, before going on to give an alternative description. It is difficult to know precisely what to make of this answer. While it may be overstating its significance to describe it as a rejection of the scenario in the question, it is also not an acceptance of that scenario.
The difficulty is exacerbated when the answer to question 7 is considered in light of the answer to question 9. Question 9 contained two propositions. The first was that Ms Wilmott came closer; and the second was that this resulted in the appellant pushing her hands away. While the answer “yeah” is rendered slightly ambiguous by the double-barrelled nature of the question, it is at least open to be construed as involving acceptance by Mr Pedlar that the appellant made contact with Ms Wilmott’s hands.
If Mr Pedlar’s evidence is to be construed as involving acceptance that the appellant made contact with Ms Wilmott’s hands, then it is true that this is not reflected in the Magistrate’s ultimate findings. However, it does not follow that the Magistrate has fallen into error.
First, given the ambiguous nature of several aspects of the passage I have extracted from Mr Pedlar’s evidence, it is appropriate that I proceed with caution, and having careful regard to the advantage the Magistrate is likely to have had in understanding the intended meaning of Mr Pedlar’s evidence. Secondly, even if Mr Pedlar did accept or allow for contact with Ms Wilmott’s hands, it does not follow that he erred in nevertheless accepting Ms Wilmott’s version (which did not involve any contact with her hands), or in rejecting the appellant’s version (which did involve contact with Ms Wilmott’s hands). That is particularly so in circumstances where, for the reasons I have explained, Mr Pedlar’s evidence was to the effect that the appellant pushed her upper shoulders, which was consistent with Ms Wilmott’s evidence and inconsistent with the appellant’s evidence.
In light of the detailed reasoning and analysis of the Magistrate in support of his acceptance of Ms Wilmott’s evidence, and rejection of the appellant’s evidence, which drew on various aspects of their evidence, I am not satisfied that the issues raised in respect of Mr Pedlar’s evidence provide a sufficient basis for concluding error on the part of the Magistrate in his finding that the appellant pushed Ms Wilmott to her chest.
The appellant’s evidence that victim overtook on the left
Ms Wilmott’s evidence was that she was the first to take the Mount Barker exit, with the appellant following behind her. She said that as they approached the intersection he was in the right lane next to her, before making a late move into the left slip lane that she was in. The appellant, on the other hand, said that he was the first to take the exit, that he was always intending to take the left slip lane, and that he accordingly had his left indicator on when Ms Wilmott overtook him on the left (or “undertook” him) using the emergency vehicles lane.
Grounds of appeal 9 and 11 complain about the Magistrate’s treatment of the appellant’s evidence that Ms Wilmott overtook him on the left. It is appropriate to set out in full the relevant passage from the Magistrate’s reasons:
He was questioned about his assertion that the driver of the sliver car had driven in the emergency services lane, past his car and the two other cars which were behind him, and said he mentioned it to police both at the outset when they attended and, he thought, during the interview. He was then confronted with a transcript of the interview, in which he did not mention this matter and in particular was referred to two portions in which, it was put, he had an opportunity to explain how the silver vehicle undertook him in the emergency lane. He said the he was quite stressed and, because of the conversation when the police initially attended his house, he understood they were more interested in what happened at the intersection. He was asked what he thought of the driver of the silver car passing him in the emergency services lane and said he did not think much of it because it was not that unusual and a number of people do it. What this answer failed to address was that while she was passing him, according to the defendant, the driver was gesticulating at him, so its obvious connection or potential connection with what occurred at the intersection could not reasonably be ignored. I was not impressed with the defendant’s explanation for not mentioning this aspect of the incident during the interview. Also, one would think it would have been more noteworthy to him because, according to him he had his left indicator on as she passed on his left in the emergency lane. As to his assertion that he mentioned it to police when they first attended, no police officer gave evidence about that or was cross-examined about it, so there was no opportunity in the trial for this issue to be addressed, other than once the defendant made the assertion during his evidence, so the only evidence that he did so comes from the defendant himself, and I bear in mind it is not contradicted. The defendant disagreed when it was put to him that he had fabricated that Ms Wilmott passed him in the emergency lane, to fit with Ms Wilmott’s evidence which, on its face, suggested that he was initially intending and preparing to turn right to Mount Barker, and made a last-minute decision to pull to the left behind her, towards Little Hampton.

By way of background and context to this passage, there is no doubt that the prosecutor put to the appellant that his evidence in relation to Ms Wilmott overtaking him on the left was a recent invention. This suggestion was clearly put and clearly denied in the following passage of evidence:
Q.I put it to you that that is completely – you have made that up to fit the evidence. You didn’t think about that on the day because it didn’t happen, you didn’t tell the officers in the interview because it didn’t happen and you simply made it to fit the evidence that you are giving in court now having received the statements from the witnesses and the victim.
A.No I disagree with that.
The suggestion of recent invention having been made, it would have been permissible for the appellant to have adduced evidence of any prior consistent statement made by him about this matter.[12] The appellant did not do so. So far as the Magistrate was concerned, that is how the matter was left.
[12] R v Powell [2014] SASCFC 48 at [24]-[30].
On appeal, I received without objection evidence to the effect that in fact the appellant had made a prior consistent statement when instructions were taken from him at an early stage. The evidence also revealed that shortly after the trial the appellant’s trial counsel took advice from senior counsel as to the possibility of seeking permission to reopen to adduce evidence of this prior consistent statement. The advice was to the effect that, on balance, there was no need to do so, or any likely utility in doing so. Given the absence of any evidential basis for rejecting the appellant’s evidence that he thought he had told the police about Ms Wilmott overtaking him on the left when they first spoke with him on the night of the incident, there was no reason to think the issue would be of any significance.
Against this background, the complaints made in grounds of appeal 9 and 11 are as follows:
· The Magistrate erred in rejecting the evidence of the appellant as to Ms Wilmott passing him on the left as recent invention in circumstances where, had that been put to the appellant, he could have rebutted the same.
· The Magistrate unfairly concluded that the appellant’s failure to tell the police that Ms Wilmott had passed him on the left just prior to the incident was indicative of a lack of candour, when it was clear on the evidence that there had been an earlier conversation with several police at his home address, none of which was recorded, noted or led by the prosecution.
As to the first of these complaints, it involves a mischaracterisation of the Magistrate’s reasons. His Honour did not find that the appellant’s evidence about being overtaken on the left was a recent invention. While this suggestion was made in cross-examination by the prosecutor, and the Magistrate (in the passage from his reasons extracted above) appears to have considered this possibility, the Magistrate did not ever make an express finding to that effect. To the contrary, the Magistrate made express reference to the appellant’s evidence that he mentioned the overtaking to the police when they first attended upon him, and noted that this was not contradicted by any evidence. Thus, while the Magistrate did reject the appellant’s evidence, he did not go so far as to conclude that it was a recent invention.
For this reason, the circumstances addressed in R v Powell[13] are distinguishable. In that case the trial judge did find that an aspect of the defendant’s evidence was a recent invention. Indeed, a further distinguishing feature of that case was that the trial judge did so despite this not having been put to the defendant, and in the absence of any submission that the evidence was a recent invention. In those quite different circumstances it was inevitable that the appeal court would conclude that the trial judge’s findings as to the defendant’s lack of credibility and reliability were seriously flawed.
[13] R v Powell [2014] SASCFC 48 at [24]-[30].
As to the second of the appellant’s complaints, it is in essence a complaint that the Magistrate erred (or acted unfairly) in rejecting the appellant’s credit on the issue of overtaking in circumstances where there was evidence that there had been an earlier conversation with police which was not recorded or the subject of evidence.
The first point in response to this is that the Magistrate expressly acknowledged the appellant’s assertion that he mentioned the overtaking to the police when they first attended upon him. The Magistrate did not reject this evidence; to the contrary, the Magistrate noted that this assertion was not contradicted by the evidence, implicitly leaving the truth of the assertion open as a possibility.
The next point is that the Magistrate rejected the appellant’s evidence as to the overtaking on grounds that did not rely upon a rejection of this assertion. In rejecting the appellant’s evidence on this issue, the Magistrate referred to the appellant’s failure to mention the overtaking when interviewed by the police, and the reason he gave for that failure, namely that he understood that the police were more interested in what happened at the intersection. The Magistrate also made reference to the appellant’s evidence that he did not think much of the overtaking at the time because it was not that unusual and a number of people do it. However, as the Magistrate pointed out, the appellant’s evidence was difficult to reconcile with his evidence that when Ms Wilmott overtook him she was gesticulating at him. In that circumstance the overtaking not only had an obvious connection with what happened at the intersection, but would also have been noteworthy. In my view, these were sound and logical reasons for rejecting the appellant’s evidence on this issue, and preferring the evidence of Ms Wilmott.
Finally, I do not consider that any error or unfairness arises from the absence of any evidence at trial as to any prior consistent statement to the police, or indeed to the appellant’s legal advisor. Such evidence would have been admissible and relevant to meet the challenge to the appellant’s credit based upon recent invention, but in circumstances where the appellant’s credit was rejected on other grounds, I do not consider there was any error or unfairness, let alone one that was productive of a miscarriage of justice.
Other matters going to the credibility of the appellant’s evidence
Grounds of appeal 1, 3, 4, 5, 6, 8 and 10 were presented as a series of strands in an argument that the Magistrate erred in rejecting the appellant’s creditworthiness. The appellant complained, for example, that the Magistrate erred in:
·    Rejecting as “improbable” the appellant’s evidence that he could not recall anything Ms Wilmott said when she was yelling at him as they got out of their cars, which included a rejection of his (unchallenged and uncontradicted) explanation that this was likely a function of him having acquired (through his history of aggressive encounters in his work with Families SA) a strategy of shutting such things out.
·    Rejecting the appellant’s explanation for covering his face with a towel, based in part on his answer being preceded by a “brief but perceptible and telling pause”, and in part on it being unlikely that he would still have been sweating from his exercise at the gym.
·    Concluding that the appellant’s evidence about his hatred of domestic violence was given “to buttress his own credibility” in relation to the circumstances of his encounter with Ms Wilmott.
In essence the complaint was that the Magistrate erred in taking an approach to the evidence that involved accepting the entirety of Ms Wilmott’s evidence, and rejecting the appellant’s credibility and, consequentially, virtually all aspects of his evidence that were contrary to Ms Wilmott’s version. The Magistrate’s finding that there was clear damage to the rear bumper of Ms Wilmott’s car was given as an example of the Magistrate taking an inappropriately or unnecessarily favourable view of Ms Wilmott’s evidence.
In my view, there is no merit in these challenges to the Magistrate’s credit findings. No error has been identified in the Magistrate’s approach to the credibility of either the appellant or Ms Wilmott. To the contrary, I consider that his reasons in this respect were detailed, clear and cogent. They involved a close analysis of the evidence as a whole. I do not consider that any of the steps in the Magistrate’s reasoning in this respect was not available on the evidence or as a matter of logic. Particularly when I bear in mind the advantage enjoyed by the trial judge in this context, there is no basis for me interfering with the Magistrate’s findings.
Other grounds of appeal
Ground of appeal 7 was abandoned.
I do not understand ground of appeal 12 (in relation to self-defence) to have been pressed. But to the extent it was, I do not think it had any merit. There was no evidentiary foundation for that defence. It was excluded by the findings that were made as to the circumstances of the assault.
It follows that the appeal against conviction must be dismissed.
I note that none of the grounds of appeal addressed the conviction in respect of count 4. The appellant conceded that the finding of guilt in respect of this count would remain undisturbed even if the appeal against conviction had otherwise succeeded.
Appeal against sentence
The sole ground in the appellant’s appeal against sentence is a complaint that the Magistrate erred in failing to exercise his discretion not to record a conviction.
During sentencing submissions, the appellant contended that the Magistrate should exercise his discretion to not record a conviction under either s 16 or s 39(1) of the Criminal Law (Sentencing) Act 1988 (SA).
The terms of those sections are as follows:
16—Imposition of penalty without conviction
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to—
(i)      the character, antecedents, age or physical or mental condition of the defendant; or
(ii)      the fact that the offence was trifling; or
(iii)     any other extenuating circumstances,
good reason exists for not recording a conviction, the court may impose the penalty without recording a conviction.
…
39—Discharge without sentence on defendant entering into bond
(1) Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(ab)    to comply with the other conditions (if any) included in the bond; and
(b)     if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
A number of considerations were relevant to the Magistrate’s application of these sections. They included that the appellant, now 63 years of age, had a fairly significant criminal history, albeit that his previous offending occurred a number of years prior to the present offending and did not include any offences of violence. The appellant had experienced a number of difficulties in his childhood and early adult years that undoubtedly contributed to his history of offending. There were good reasons to think that the appellant had taken significant steps to change his ways and rehabilitate himself. His significant period of employment, and the references given to the court, provided support for the submission that he had been successful in his attempts to rehabilitate himself and that his offending was out of character for him. On the other hand, and while the present offending involved a push rather than a high impact strike, it was nevertheless relevant that road rage offences are a matter of great public concern, and in respect of which there is a need for both personal and general deterrence.
In his sentencing remarks, the Magistrate made reference to (and, indeed, demonstrated that he had given careful consideration to) all of the above. He also acknowledged that as a result of the present offending, particularly if a conviction were recorded, the appellant would be at risk of being found guilty of misconduct which would lead to dismissal from his employment. He noted that this was at the forefront of the appellant’s submission that he should be dealt with in this instance without recording a conviction.
In ultimately rejecting this submission the Magistrate reasoned as follows:
It is submitted that I should find that this offending is out of character and you do not have the sort of personality to indicate that this offence is anything but an aberration. It is submitted that, bearing in mind your background of a complete lack of prior violent offending, and the outstanding process of rehabilitation in which you have engaged since been given that opportunity in 1999, I should conclude that you are unlikely to offend again and, if I were minded to impose community service or a fine, that I should deal with you pursuant to section 16 of the Criminal Law (Sentencing) Act, without recording a conviction. If not, I am asked to find that all those matters personal to you, of which I have spoken, give rise to good reason to deal with you without recording a conviction and otherwise requiring you to enter a bond, pursuant to section 39 of that Act.
The prosecutor has submitted that a sentence of imprisonment is called for and that anything less would fail to properly reflect the need for personal and general deterrence arising from such offending, which is a matter of great public concern. It is certainly true that offences involving road rage are prevalent and are a matter of very great public concern. It is a type of offending which requires in my view the need for personal and, more particularly, general deterrence, that is the deterrence of others from committing such offences, to take a predominant position in the fixing of sentence. In itself, the nature of your offence does not serve to rank it in the most serious category of offences, of assault. It was a push, not a high impact type of striking. It occurred in a highly charged situation, albeit largely of your own making, and at one stage you chose a course of restraint by getting back in your car but your anger, and perhaps the knowledge that you would be reported for your conduct and the fear of the consequences, inspired you to get out again and it was then that your failure to control your anger led to you pushing your victim. The whole incident was terrifying for her and the impact has not been trivial.
In my assessment, this offence does not warrant imprisonment and I am considering imposing a significant fine as an appropriate penalty which has regard to those matters, and to the need to adequately punish you for your offending.
In those circumstances, it is open to me to consider dealing with you pursuant to section 16 of the Criminal Law (Sentencing) Act if I consider you unlikely to offend again. In your case, I am not prepared to make that finding. Whilst you do not have a history of violent offending and bearing in mind also the positive statements by your referees as to your gentle nature, the circumstances of this offending run contrary to those assertions. Even if it is an isolated type of offence, having regard to your history, in this case I can have no proper understanding of what led you to behave in this way because you denied the offending, and gave evidence which I have rejected. Without a frank and truthful account from you of what underpinned this offending, I am simply unable to properly assess whether you are unlikely to commit such an offence again and accordingly I cannot make that finding and so I refuse to exercise my discretion pursuant to section 16, not to record a conviction.
I turn to section 39. In deciding whether to record a conviction, I have regard to your lack of history for violent offending and your rehabilitation since 1999 and all of the aspects of which I have spoken. I bear firmly in mind that the recording of a conviction is something which, by operation of law, is likely to make it more difficult for you to retain your job once these proceedings are completed. I must weigh the benefit to you of there being no conviction recorded against the public interest inherent in convictions being recorded. I bear in mind that the recording of a conviction is itself an element of punishment and thereby acts as a personal and general deterrent. Despite your rehabilitation since 1999 you are not a person with no offending history and in fact your offending history is quite serious. I am aware of course that your employer is aware of these proceedings and your suitability for continuing employment is quite likely to be examined in any event. Weighing all matters carefully, I have come to the conclusion that in your case good reason does not exist to proceed without recording a conviction and that to proceed in that way would not sufficiently reflect the need for personal and more particularly general deterrence arising in this case. A conviction will be recorded.
Further, for the same reasons, I am not prepared to deal with you without proceeding to sentence and requiring you to enter into a bond.
(Emphasis added)
In relation to s 16, the Magistrate was proposing to impose a fine and thus accepted that it was open to him to deal with the appellant under that section. However, the discretion conferred by that section was conditioned upon satisfaction that the appellant was “unlikely to commit such an offence again”. The appellant contends that the Magistrate erred in his approach to this issue. The appellant points to the sentences that I have underlined in the extract from his sentencing remarks, contending that this involved an impermissible use of the appellant’s decision to plead not guilty. The appellant went as far as to contend that if the Magistrate’s approach were correct, then s 16 could never be utilised after a trial when the defendant has denied the allegations. Citing Lumb v Police,[14] the appellant submitted that it was erroneous to construe s 16 as excluded by a plea of not guilty.
[14] Lumb v Police [2008] SASC 198 at [57].
I reject the appellant’s contentions. They involve a mischaracterisation of the Magistrate’s reasons. The Magistrate did not suggest that the appellant’s approach of pleading not guilty and contesting the allegations operated in any automatic way to preclude a conclusion that the appellant was “unlikely to commit such an offence again”, or the exercise of the Court’s discretion under s 16. The Magistrate’s decision was one very much tied to the circumstances of the present appellant and the present offending. The effect of the Magistrate’s reasons was that, given the appellant’s history of offending (and despite positive signs in more recent years), and the nature of the offence (which involved violence following a loss of control in a fairly routine or common situation), his Honour could not be satisfied that he was unlikely to commit such an offence again.
To my mind, the Magistrate’s reference in this context to the appellant’s failure to give a full and true account involved no more than an acknowledgement that had the Magistrate known more about the reasons or trigger for the appellant’s loss of control, then this may have warranted a different conclusion. By way of example, if there had been evidence to the effect that the appellant’s loss of control was not simply his perception of Ms Wilmott’s driving and behaviour, but also its combination with some other circumstance or source of stress, then the Magistrate may have been satisfied that it was unlikely the appellant would commit a similar offence again.

To reason in this way was not to hold against the appellant his decision to plead guilty and contest the allegations in any direct or automatic way. It was not to construe the operation of s 16 as being precluded by a plea of not guilty and a contesting of the allegations. It was merely to acknowledge that a consequence of that course in this case was that there was no evidentiary basis for the Magistrate to be satisfied that the appellant was unlikely to commit such an offence again.
In my view, no error has otherwise been established in the Magistrate’s approach to the exercise of his discretions under either ss 16 or 39(1). I therefore dismiss the appellant’s appeal against sentence.
Orders
I extend the time within which the appellant was required to bring his appeal against conviction. However, I dismiss the appeal against conviction and the appeal against sentence