Barry v Police - [2009] SASC 295

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BARRY v POLICE
[2009] SASC 295
Judgment of The Honourable Justice Kourakis
21 September 2009
CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against conviction - appellant pleaded not guilty to assault - Magistrate found the appellant guilty and imposed sentence of three months imprisonment, suspended upon the entering into a bond of good behaviour for 18 months - some discrepancies between prosecution witnesses' evidence - whether Magistrate provided adequate reasons - whether conviction unsafe and unsatisfactory - appellant attended police interview with prepared notes and made several self-serving exculpatory statements but also made some admissions - whether appellant received fair trial and whether miscarriage of justice as a result of prosecution refusal to tender transcript of interview - whether Magistrate erred in declining to order prosecution to tender interview - whether prosecution has obligation to tender such evidence containing "mixed statements" - whether Magistrate's reasons for sentence inadequate and sentence manifestly unjust.
Held: The Magistrate provided inadequate reasons by failing to state the factual basis on which he convicted the appellant - notwithstanding that error of law and some discrepancies between prosecution witnesses' evidence, the appellant is guilty beyond reasonable doubt of the offence charged - prosecution had no obligation at trial to adduce evidence of the appellant's record of interview which contained "mixed statements" - Magistrate did not err in declining to order prosecution to tender the interview - appeal against conviction dismissed - Magistrate failed to provide adequate reasons for sentence - appellant must be re-sentenced - therefore no need to decide if sentence imposed was manifestly unjust - notwithstanding appellant's reasonable antecedent, the need for personal and general deterrence to protect the safety of the community demands no lesser penalty than the one imposed by the Magistrate - appeal against sentence dismissed.
Criminal Law Consolidation Act 1935 s 20(3); Evidence Act 1929 s 18A; Criminal Law (Sentencing) Act 1988 s 9, referred to.
Spence v Demasi (1988) 48 SASR 536; R v Higgins (1829) 3 Car & P 603; 172 ER 565; R v Callaghan [1994] 2 Qd R 300; Middleton v The Queen (1998) 19 WAR 179; S v The Queen (2002) 132 A Crim R 326, applied.
Mahmood v Western Australia (2008) 232 CLR 397, distinguished.
R v Fry [2006] SADC 36, not followed.
R v Familic (1994) 75 A Crim R 229; R v Rymer (2005) 156 A Crim R 84, discussed.
Papps v Police (2000) 77 SASR 210; Mule v The Queen (2005) 79 ALJR 1573; R v Su [1997] 1 VR 1; Males v Police [2009] SASC 52; Yardley v Betts (1979) 22 SASR 108; Birch v Fitzgerald (1975) 11 SASR 114, considered.

BARRY v POLICE
[2009] SASC 295

KOURAKIS J: The appellant was charged with assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935. He pleaded not guilty to that charge and was tried in the Magistrates Court on 1 and 2 December 2008. On 20 April 2009, the Magistrate found the appellant guilty of the charge and delivered written reasons for so finding. He then sentenced the appellant on 26 May 2009, recording a conviction and sentencing him to three months imprisonment, suspended upon the appellant entering into a bond in the amount of $10 to be of good behaviour for 18 months.
The appellant appeals his conviction and sentence. He appeals his conviction on the grounds that:
1The Magistrate failed to provide adequate reasons.
2The conviction of the appellant is unsafe and unsatisfactory.
3The appellant did not receive a fair trial and there was a miscarriage of justice as a result of the prosecutor refusing to tender a transcript of the appellant’s interview by Police.
The appellant appeals against the sentence imposed by the Magistrate on the grounds that the Magistrate’s reasons for sentence were inadequate and that the sentence is manifestly excessive.
For the reasons that follow, I would dismiss both the appeal against conviction and the appeal against sentence.
Facts and Background
The appellant was charged with assault because it was alleged that on Friday 6 April 2007 (the Friday of the Easter weekend) at Port Julia, he intentionally applied force directly to Sara Smart-Chaustowski. The Magistrate referred to the background to the incident in the “Preamble” to his judgment as follows:
Adam Barry, the defendant, and Kate Clark (Kate), his partner at the time, arranged a holiday for the 2007 Easter period at Port Julia. They had hired a holiday house there. The defendant did most of the organisation for that holiday and paid for the accommodation on the house. Kate’s younger brother Jesse who was 14 years old at that time and his friend Kieren were invited to join them for the holiday. The defendant and Kate also invited Sara Smart-Chaustowski (Sara), Kate’s and Jesse’s cousin, to join them as part of the holidaying group… On Friday afternoon of the Eater weekend they were also joined by Sara’s brother Dylan, his partner and a friend of theirs.[1]
[1] Police v Barry [2009] SAMC 34, Judgment of Magistrate Baldino, 20 April 2009, at [6].
The prosecution called Ms Smart-Chaustowski, Kate Clark, Jesse Clark and Ms Audrey Faye Cook as witnesses. Ms Smart-Chaustowski was the victim of the assault. Kate Clark and Jesse Clark were both eye-witnesses to the assault. Ms Cook is a registered nurse who treated Ms Smart-Chaustowski after the assault.
Ms Smart-Chaustowski, Kate Clark and Jesse Clark gave accounts of the assault that, although differing in ways which I shall need to explore further in these reasons, essentially included the following basic facts. Ms Smart-Chaustwoski and Kate Clark were sitting in the victim’s car which was parked in front of the holiday house at Port Julia. The appellant approached the car in an angry and aggressive manner. He yelled at Ms Smart-Chaustowski, telling her to leave the holiday house. Ms Smart-Chautowski responded to the appellant, got out of her car and walked around to the appellant on the other side of the car. The appellant then leaned in very close to her face. Ms Smart-Chaustowski pushed the appellant, as a result of which the appellant stumbled a step or two away from her. He then grabbed her and forced her on to the bonnet of the car, applying such force that the she hit her head hard on the car. They both moved off the car and on to the ground. There the appellant punched Ms Smart-Chaustowski in the face and pinned her to the ground. At some point after the appellant forced Ms Smart-Chaustowski on to the car, she scratched his face. However, all three witnesses testified that Ms Smart-Chaustowski did not punch the appellant in the stomach when that was suggested by counsel for the appellant in cross-examination.
Appeal against conviction
The appellant appeals against his conviction on three grounds. First, the appellant complains that the Magistrate gave inadequate reasons for finding him guilty of the offence charged because the Magistrate made no specific findings as to the specific acts of his which formed the factual basis upon which he was convicted, and because the Magistrate failed to give reasons as to which of the different accounts given by the witnesses he preferred. Secondly, the appellant complains that the conviction is unsafe and unsatisfactory because a conclusion of guilt cannot be reached beyond reasonable doubt given the differences between the witnesses’ testimonies. Thirdly, the appellant contends that the prosecution’s refusal to tender a record of interview of the appellant taken by the police meant that the appellant did not receive a fair trial, and that the conviction should be set aside. I will deal with each of those grounds in turn.
Inadequate reasons
It is now well settled, in this State at least, that a Magistrate’s failure to provide adequate reasons for conviction or sentence is an error of law.[2] Nonetheless, an appeal from a Magistrate’s decision is one by way of rehearing. Counsel for the appellant and prosecution both agreed that if, on my view of the evidence, the Magistrate came to the correct conclusion, the appeal should be dismissed.
[2] Papps v Police (2000) 77 SASR 210.
Of course, there are cases where it is impossible for the appeal court to make findings on the written record of the evidence alone. The failure of the Magistrate to provide adequate reasons, or the nature of the issues and evidence at trial, may render a conclusion made on the transcript alone unreliable and unjust. In those cases the appeal must be allowed and the appellant’s conviction quashed or the matter remitted to the Magistrates Court for retrial. However, for the reasons that I shall give, this is not one of those cases.
The Magistrate in his reasons for judgment comprehensively sets out the evidence of all of the witnesses at trial. Counsel for the appellant agreed as much. However, the appellant submits that the Magistrate’s finding that all of the witnesses were honest and accurate was illogical and erroneous given the discrepancies in their evidence. The appellant also complains that the Magistrate erred in not stating which witness’s account he preferred, in failing to analyse the evidence and in not stating which facts constituting the offence were proved beyond reasonable doubt.
Counsel for the appellant pointed to many differences in the evidence given by the three main witnesses, Ms Smart-Chaustowski, Kate Clark and Jesse Clark. I do not propose to deal with each and every difference in great detail. It is sufficient to summarise the evidence and the differences between the witnesses’ accounts as follows.
1. Events leading up to the incident
The appellant submitted that the witnesses each gave different accounts of certain conversations that had occurred before leaving for Port Julia, at the house at Port Julia earlier in the day of the incident and immediately prior to the incident occurring. In my view, none of these differences is material. The witnesses could not be expected to have a uniform recollection of such detail 18 months after the incident, particularly after experiencing the incident which was the subject of the charge. Counsel for the appellant also suggested that the different accounts of Ms Smart-Chaustowski’s actions immediately prior to the incident – her starting her car and driving it either around the block or out of the driveway – were relevant. He contended that the appellant was concerned about the danger posed by Ms Smart-Chaustowski’s driving and that Ms Smart-Chaustowski may have minimised or even lied about that conduct to conceal some wrongdoing on her part. Even taking those submissions into account, in my view the discrepancies around this collateral issue are not significant. It is inherently improbable that the prosecution witnesses fabricated their descriptions of the altercation between the appellant and Ms Smart-Chaustowski to cover, in some way which is quite difficult to understand, for her earlier conduct.
2. The appellant coming out of the house, shouting at the victim
Ms Smart-Chaustowski gave evidence that the appellant was angry when he came out of the holiday house towards the car, which was parked on the street in front of the house and in which she and Kate Clark were seated. She said that the appellant was yelling at her through the window of the passenger side door which was partly down, asking her to leave and saying that she had ruined his and Kate’s relationship. Kate Clark’s evidence was also to that effect. Jesse Clark gave evidence that he heard Kate and Adam arguing, so he went around to the corner of the house to watch as a “peeping Tom”. He estimated that he was 20 to 50 metres away from the car. He said that “Kate and Adam were disputing and then Sara got involved and then I remember Adam saying ‘I don’t want you here anymore Sara can you go get your stuff, can you just get out’ ”. The only real difference in the evidence on this point is that Jesse Clark said that Kate and Adam began the argument, whereas both Kate Clark and Ms Smart-Chaustowski said that the appellant came out of the house and was yelling at the victim, with no involvement by Kate.
3. Sara getting out of the car
All three witnesses gave evidence that Sara then got out of her car, walked around the front of the car to a position in front of the bonnet and continued arguing with the appellant. Counsel for the appellant submitted that there was some inconsistency in Ms Smart-Chaustowski’s evidence as to whether she initially went right around to the front of the car, or whether she stopped momentarily at the driver’s side door before doing so.
4. Sara pushes the appellant
Ms Smart-Chaustowski gave evidence that:
After that. I had gone around to the passenger side of the car and I had leant on the bonnet. I continued to try and talk the situation down. He began saying ‘No. Just leave. Just get your shit and go. I’m fed up with – You’ve ruined me and Kate’ and continued on with that conversation. At that point he had gotten a little closer to my face and was still yelling. I got a little bit scared and when he turned around I pushed him with both hands in his back.
Kate Clark, however, testified that Ms Smart-Chaustowski pushed the appellant in his right shoulder with her right hand when they were standing face-to-face. Jesse Clark also gave evidence that Ms Smart-Chaustowski pushed the appellant in his shoulder with one hand, when they were standing face-to-face and the appellant had “stepped in and started screaming in her face”. All three witnesses denied that Ms Smart-Chaustowski had punched the appellant in the stomach when that was put to them in cross-examination, although Jesse Clark conceded that it might have happened without him seeing it.
5. The appellant forces the victim on to the car bonnet
Ms Smart-Chaustowski gave the following testimony:
Q.What’s happened when he pushed you. [sic]
A.He had stumbled forwards, I believe about two steps.
Q.Then what’s happened.
A.And then with his second step he has sort of gone with the motion, turned back around to face me and come forward towards my neck.
Q.Toward you neck. Can you describe that, as to what you mean.
A.I believe it was more of a lunge. He’s come at me with both hands and continued to grab me by the jumper and in my throat area.
…
Q.Well what’s happened next.
A. We’ve both gone against the bonnet of my car. I ended up laying on my back on the bonnet and he has continued to pick me up with my jumper and proceeded to smack me into my bonnet.
…
Q.So you’ve said when he’s lunged at you, you have ended up on the bonnet of the car, so what part of your body initially hit the bonnet of the car.
A.It was my bottom and back, proceeded to follow with my shoulders and my head.
…
Q.So after that initial hitting of the car and feeling dazed what can you recall from that point.
A.I believe he was picking me up with my jumper and banging me back down onto the bonnet about three times.
Q.When you say banging you back onto the bonnet what part of your body was hitting the bonnet.
A.My head.
Kate Clark gave evidence as to what happened after Ms Smart-Chaustwoski pushed the appellant:
… What has happened is that he’s grabbed both of her arms, her upper arms, and just picked her up, as she’s very light, and just pushed her onto the bonnet of the car resulting in her like sliding up and hitting the windscreen with her head.
She admitted in cross-examination that she did not see the appellant hit the victim’s head on the bonnet.
Jesse Clark testified that:
… He sort of stepped away from Sara after that but then charged in – charged in – walked in to her again and then grabbed her hair at the back of her head and then slammed in onto the car bonnet.
The appellant complains that Jesse Clark’s account is very different from the other two, because he testified that Ms Smart-Chaustowski was forced face-first into the car, whereas Ms Smart-Chaustowski testified that the appellant hit her head a number of times on the bonnet.
6. The appellant forces the victim to the ground
Ms Smart-Chaustwoski testified that the appellant then “grabbed her wrists” and “rag-dolled” her off the car bonnet on to the ground. She said that she landed on her right side on the ground. In cross-examination, it was put to her that in her statement to police she had said that the appellant threw her to the ground by her jumper. She responded:
A.No, I’m pretty sure I said my wrists.
Q.Would you like to have a look at your statement?
A.No that’s fine.
Q.Well what did you tell the police?
A.I was pretty sure it was my wrists – could have been my jumper – I may have said my jumper.
Q.Why may you have said your jumper?
A.Because he had hold of my jumper while he was banging my head into the car bonnet, I may have been confused.
Q.You said I suggest ‘Adam still had hold of me by my jumper and then he threw me onto the ground’.
A.I may be mistaken
Q.You may be mistaken.
A.I am sure that Adam threw me to the ground, that I’m sure of.
Q.By your wrists.
A.By that I’m sure of – I can’t be sure if it was my wrists. I had bruises on my wrists that looked like I had been grabbed.
Kate Clark testified that the appellant grabbed Ms Smart-Chaustowski by the arm or arms and pushed her to the ground. She said that the victim landed face-down on the ground. Jesse Clark testified that the appellant punched the victim in the face while she was standing next to the bonnet, after she had scratched his face, and as a result of the force of that punch the victim fell to the ground. The appellant complains about the inconsistencies in those accounts.
7. What happened on the ground
Ms Smart-Chaustowski gave evidence that after 30 or 40 seconds of lying on the ground, the appellant came over and knelt over her, sitting on top of her waist area, with a knee either side of her waist. Once there, she said that he punched her about four times about her face, in the right eye, the side of her nose, her mouth and the side of her head. She said that while he was punching her she was lashing out with her fingernails and attempting to punch the appellant.
Kate Clark testified that once the appellant pushed Ms Smart-Chaustowski to the ground, he grabbed her hair and banged her head into the ground twice. She said that Ms Smart-Chaustowski then managed to turn so that she was facing upwards, and that is when the appellant punched her in the face (the eye, the nose and the lips) four times. The appellant was pinning her to the ground and was leaning over her upper body, with his knee pinning her leg down on her hip area. Kate Clark agreed that at this point Ms Smart-Chaustowski was scratching at his face and covering her face trying to defend herself.
Jesse Clark testified that Ms Smart-Chaustowski landed with her back on the ground. He said that the appellant was squatting over her, with his left leg next to her waist and his right leg on the other side of her waist. Jesse Clark gave the following evidence:
A.There was scuffling, like he sort of like dragged her along the dirt road, just dragging her, not anywhere, just in the same position, left right, left right.
Q.… And what happened next
A.I’m unsure at this time, but it continued because it created all this dust, everywhere, because I was watching from where I was, 20 to 50 m from it, there was a big lot of dust, but I still saw Sara laying on the ground, Adam let go of her and then I saw Adam kicking, kicking his feet against the dirt and I thought that it was hitting Sara, it was causing more dirt to rise, dust to rise, so. He was either kicking the ground or kicking Sara, I’m not sure.
The Magistrate’s reasons

The Magistrate dealt with the inconsistencies which I have summarised in the following way:
… I have seen and heard the witnesses and have no hesitation in accepting and finding each of them as credible and truthful witnesses. I accept the prosecutions’ assessment of them and find each of them to be good, sensible witnesses who each told the court accurately and honestly what each saw and heard from their various observation sites and involvement. The fact that they did not all see, hear or are able to recall all the details does not in my assessment of them, undermine their credibility. If anything, their inconsistency can be attributed to what Mr Boucaut referred to as a ‘flurry of activity’. Furthermore, it adds credence to the prosecution’s submission, which I accept, that the witnesses did not conspire with each other in order to give contorted evidence.
It is not necessary for me to undertake, as suggested by Mr Boucaut, a detailed examination of the witnesses’ evidence for a determination as to which version is credible in order to be satisfied beyond reasonable doubt as to what happened. I find that the inconsistencies are explicable and attributed to the varying recollections of the witnesses, as well as their respective locations at the time, and I am not required to enter into a tedious examination or minute explanation of every discrepancy in the witnesses’ evidence.[3]
[3] Police v Barry [2009] SAMC 34, Judgment of Magistrate Baldino, 20 April, 2009, at [109]-[110].
The Magistrate went on to find beyond reasonable doubt that the appellant was not at any stage in any danger of being physically attacked so as to invoke self-defence. He held:
I find beyond reasonable doubt that this was not a case of self-defence. In my assessment, it was, indeed, a deliberate, intentional and unjustifiable assault by the defendant upon the victim Sara. Neither the verbal confrontation between them, nor the push by Sara could, in my assessment, justify the defendant’s violent and aggressive reaction… If the defendant in this case genuinely believed that he had to respond to an assault upon him by Sara, then in my assessment what he did was totally unreasonable and excessive. In conclusion, applying the correct legal principles to the facts in this case, I find beyond reasonable doubt that the prosecution has discharged the onus of disproving that the defendant was entitled to act in self-defence.
In my assessment, the defendant intentionally made physical contact with Sara which constituted an assault. In my assessment, the defendant could not avail himself of the defence provide [sic] by the Section. That is to say, the prosecution has proved beyond reasonable doubt that the defendant was not acting in self-defence.[4]
Reasons are inadequate
[4] Police v Barry [2009] SAMC 34, Judgment of Magistrate Baldino, 20 April, 2009, at [115]-[116].
In my view, the reasons given by the Magistrate for his adjudication of guilt were inadequate because he failed to state the factual basis on which he convicted the appellant. His failure to do so is an error of law. It therefore becomes the responsibility of this Court to consider for itself the evidence and to determine whether the error in failing to provide adequate reasons prevents this Court fulfilling its function of appellate review or, if appellate review remains possible, whether on the evidence the Magistrate’s conclusion was the correct one. If the former is shown then the appropriate order is generally to allow the appeal and remit the matter for rehearing. In the latter case the conclusion may be affirmed, a different order may be substituted or the matter may again be remitted. If, notwithstanding the error of law in failing to give adequate reasons, this Court is, after its own review of the evidence, satisfied that the adjudication of the Magistrate is correct, then the appeal will be dismissed.
Unsafe and Unsatisfactory
Counsel for the appellant invited me to allow the appeal and quash the appellant’s conviction on the basis of the discrepancies in the witness’s evidence, which I have set out above. He submitted that given those differences, a conviction of the appellant was unsafe and unsatisfactory and was against the weight of the evidence.
I have reached the conclusion that those discrepancies can be explained by having regard to the nature of the incident and the respective positions of the witnesses. In coming to that view, I have taken into account the impression of the Magistrate that all of the witnesses were honest and reliable and consider that this indicates only that there was nothing about their demeanour which gave any reason to doubt their evidence. The transcript of the evidence of each of the prosecution witnesses shows that they gave coherent accounts in a way which responded logically and fully to the questions which they were asked. The discrepancies are not such as to cause me to doubt the Magistrate’s impression. In my view, by his observation that each of the witnesses was accurate and truthful, the Magistrate meant only to say that they truthfully and accurately related their recollections of the incident. Of course, their recollections of the incident cannot be expected to be exactly the same.
People who view a distressing event will often not take in everything unfolding before them because of their state of distress and the difficulty in processing unusual and unexpected information. Moreover, in the course of witnessing such an event, memories may not be laid down with perfect accuracy. The process of retrieving those memories may produce further discrepancies. Courts deal with these problems on a daily basis. In this case, counsel for the appellant submitted that such explanations do not adequately explain the discrepancies between Kate Clark’s, Jesse Clark’s and Ms Smart-Chaustowski’s evidence. As I have indicated, I do not agree. I think that the differences identified by the appellant are just what one would expect, given the considerations I have described. Counsel for the appellant at trial described the incident as a “flurry of activity” which was over very quickly. Differences, even significant differences between the accounts of honest witnesses to incidents of this nature, are commonly encountered.
There are core facts which are common to the accounts of Ms Smart-Chautowski and Kate Clark. There is nothing about that core that is in any way improbable. By and large their evidence is corroborated by the evidence of Jesse Clark and the evidence of injuries to Ms Smart-Chautowski’s face. There is no evidence to the contrary. Where the evidence of Jesse Clark is inconsistent with some aspects of the other evidence, primarily in describing a greater level of violence, I have preferred the evidence given by Kate Clark and Ms Smart-Chautowski. I have done so on the objective bases of Jesse’s age and his position in relation to the incident, being 20 to 50 metres away from it and acting as a “peeping Tom”.
On my own view of the evidence, I have come to the conclusion that the appellant is guilty beyond reasonable doubt of the offence as charged on the factual basis which follows. On Friday 6 April 2007, in the afternoon, the appellant and the victim were engaged in a verbal argument in and in front of the victim’s car. During the course of that argument, the victim pushed the appellant away from her. I cannot find whether she pushed him when he was facing towards her or away from her. Although not mentioned in the evidence, it may be that in the course of the push he turned away from her, but there is no need to resolve that factual issue.
The appellant then forced Ms Smart-Chautowski on to the front of the car, causing her to hit her head on the car, whether it was the bonnet or the windscreen is unimportant and does not affect my conclusion. The appellant then pushed the victim on to the ground, where he pinned her to the ground using his knees. I do not need to resolve the differences in evidence on which way Ms Smart-Chautowski fell, whether the appellant pushed her by her wrists or her arms, and her position when she fell. However, I do find that Jesse Clark must have been mistaken when he said that Ms Smart-Chaustowski was punched when she was standing up, causing her to fall to the ground. I find that it is proved beyond reasonable doubt that soon after the appellant threw Ms Smart-Chautowski to the ground, she was lying facing the appellant. While in this position, the appellant punched her in the face or about the head about four times. The photographs taken of Ms Smart-Chaustowski’s face by the police on the day of and the day after the incident, exhibits P1 and P2, show the injuries she sustained. They include bruising underneath her eyes and cuts to her lip. Ms Smart-Chautowski, Kate Clark and Jesse Clark also gave evidence that the victim’s nose was bleeding immediately after the assault. The injuries are also attested to by Ms Cook, who treated the victim after the incident. While I might have expected to see more, or more severe, injuries to Ms Smart-Chautowski’s face in the photographs, the injuries shown therein are not inconsistent with the assault that I have found proved. The precise extent of the injuries sustained in an incident like this will obviously depend upon the degree of force used by the appellant and whether Ms Smart-Chautowski was able to protect herself by deflecting any of the blows or moving her head.
I find beyond reasonable doubt that the appellant was not acting in self-defence. I find that he did not genuinely believe that his conduct in forcing the victim on to the car, throwing her to the ground and punching her in the face was necessary and reasonable for a defensive purpose. Nor, in my view, could that conduct be considered reasonably proportionate to any threat that the appellant may have perceived from the victim pushing him, whether it was in his back or to his shoulder. The only genuinely defensive response to such a threat, in the context of the argument between them, would be to walk away from the situation.
I would therefore dismiss the appeal on the first two grounds.
Prosecution refusal to tender Record of Interview
On 7 May 2007, Senior Constable Rees attended the home address of the appellant, who was not there at the time. The appellant subsequently contacted Senior Constable Rees by telephone and arranged an appointment for 9 May 2007. On that day, the appellant attended at the Sturt Police Station. Senior Constable Rees conducted an interview with the appellant which was recorded by audio tape. The appellant attended the interview with his own handwritten notes of the incident and a series of photographs of himself showing injuries he claimed to have received during the incident.
During that interview the appellant made a number of self-serving exculpatory statements, denying certain allegations put to him and claiming that he had acted in self-defence. However, he also made admissions against his interest; he accepted that he was at the scene of the incident and that he and Ms Smart-Chaustowski had a “struggle” or “scuffle”, although those admissions were made in the context of his claims that he was acting in self-defence and that Ms Smart-Chaustowksi had attacked him.
Counsel for the appellant asked the police prosecutor conducting the trial to call Senior Constable Rees as a witness. The police prosecutor declined to do so, and further declined to tender the affidavit of Senior Constable Rees and the record of interview. Counsel then asked the Magistrate to direct that the prosecution call the witness, saying that he wanted the record of interview of the appellant to be in evidence, but the Magistrate declined his request. The appellant contends on this appeal that the prosecution had an obligation to tender the record of interview as part of its case. The appellant also submits that the Magistrate erred in not directing the prosecution to call the witness, or tender the record of interview, and that as a result there was a miscarriage of justice because the appellant has not received a fair trial.
The respondent submitted that the statement contained purely exculpatory remarks. That submission cannot be accepted because the appellant plainly made some inculpatory statements, even though he generally denied any wrongdoing. As such, the statement is what is commonly referred to as a “mixed statement”. Section 18A of the Evidence Act 1929 abolished the right of an accused to give an unsworn statement. However, there is much authority for the principle that where the prosecution puts into evidence an out-of-court “mixed” statement the exculpatory remarks are probative as an exception to the hearsay rule.[5] If the mixed statement is received, the admissions may be relied upon by the prosecution to prove guilt, and the exculpatory statements can be relied upon by the defendant as evidence of the truth of those statements.
[5] Spence v Demasi (1988) 48 SASR 536; R v Karpany [1937] SASR 377; R v Jones (1827) 2 Car & P 629; 172 ER 285.
In Spence v Demasi,[6] an action for damages arising out of a motor vehicle accident in which the plaintiff tendered a record of interview of the defendant by the police which contained both admissions and denials, Cox J stated the rule in this way:
The rule against hearsay evidence usually operates to prevent a party from tendering his self-serving statements made out of court in proof of the truth of the matters so asserted. The problem comes with mixed statements, tendered by an opponent, containing admissions against the party making them and also exculpatory statements, whether relating to the admissions or on other relevant topics. The position in the criminal court, I think, is clear. It is common for the Crown to tender a record of the accused’s interrogation by the police, and often this will contain a mixture of admissions and self-serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay…[7]
[6] (1988) 48 SASR 536.
[7] Spence v Demasi (1988) 48 SASR 536 at 540 per Cox J.
The question that arises in this case is whether the prosecution has an obligation to tender such statements. On this point there has been a division of authority in Australian courts, with courts in New South Wales suggesting that the prosecution does have such an obligation, and courts in Queensland and Western Australia coming to the conclusion that even though the prosecution may choose to tender such a statement, it is not obliged to do so.
In possibly the earliest statement on the topic, Parke J said in R v Higgins[8]:
In this case the prosecutor has given evidence of what the prisoner said before the Magistrate. Now, what a prisoner says is not evidence, unless the prosecutor chooses to make it so, by using it as a part of his case against the prisoner; however, if the prosecutor makes the prisoner’s declaration evidence, it then becomes evidence for the prisoner, as well as against him…[9]
[8] (1829) 3 Car & P 603; 172 ER 565.
[9] R v Higgins (1829) 3 Car & P 603 at 604; 172 ER 565 at 565.
In that case, the accused was charged with larceny. The prosecution had tendered evidence of the accused’s statement to police, where the accused stating that a cloth found in his possession “was honestly bought and paid for”.
In the Queensland Court of Appeal case of R v Callaghan,[10] the accused was convicted of unlawful use of a motor vehicle. At trial the prosecutor did not tender an exculpatory statement made to police by the accused. The defence did not seek a direction that the statement be admitted. However, during cross-examination of a police officer, counsel for the defence applied to bring the statements in the interview into evidence. The trial Judge refused to receive the statements. The accused appealed that ruling. Pincus JA and Thomas J referred to the above passage from Higgins, and went on to say:
Similarly, if a prosecutor chooses to put into evidence a version which is in substance exculpatory, he makes it evidence in the case, and subject to matters of weight, it can be acted on as showing or tending to show the truth of its contents. There is no general obligation on the prosecution to call such evidence. The calling of such evidence is a benefit tendered by the prosecution and accepted by the defence.[11]
[10] [1994] 2 Qd R 300.
[11] R v Callaghan [1994] 2 Qd R 300 at 304.
In Western Australia, in Middleton v The Queen,[12] Pidgeon J stated:
The general rule in the case of a mixed statement is that the whole of the confession must be given in evidence, including parts favourable to the accused person: R v Higgins, Phipson on Evidence, Cross on Evidence. This was referred to recently by this Court in M H v The Queen and in Wace v The Queen. The rule thus expressed goes no further than saying that if it is the wish of the prosecution to tender the admissions, then the prosecution must tender the whole statement. It does not suggest that the prosecution is bound to tender the statement containing the admissions and the exculpatory material. Clearly at law it is not so bound.
…
It is a matter for the prosecution to determine whether or not it wishes to lead the evidence as part of its case.[13]
[12] (1998) 19 WAR 179.
[13] Middleton v The Queen (1998) 19 WAR 179 at 182.
In S v The Queen,[14] the Western Australian Court of Criminal Appeal considered the issue in the context of a mixed statement made in a video taped record of interview. The prosecution adduced evidence only that the police had conducted such an interview, and that the accused had denied any wrongdoing. The defence then attempted to elicit certain self-serving parts of the record of interview by cross-examining the police officers who took the statement. Parker J, with whom the other members of the Court agreed, stated:
Some parts of the total interview could be taken to be against the applicant’s interest, so that the whole interview could be regarded as a mixed statement in the sense frequently used in this context. The prevailing overall flavour of the interview was, however, distinctly self-serving. The law is well settled, however, that by virtue of those parts of the interview which may be accepted as against the appellant’s interest, or ‘confessional in character’, the statement, that is, the whole record of the interview, might have been led in evidence by the prosecution. But if the prosecution determines against introducing the record of interview it could not have been led in evidence or be the subject of questions in cross-examination by the defence: Callaghan [1994] 2 Qd R 300 at 303-304; (1993) 70 A Crim R 350 at 352-354. This position has been well settled for approaching two centuries: Higgins (1829) 3 C & P 603 at 604; 172 ER 565 at 565.
[14] (2002) 132 A Crim R 326 at 330, [26].
In R v Familic,[15] the New South Wales Court of Criminal Appeal held that an accused’s response to police questioning is generally admissible. On an appeal against his conviction, Familic contended that the trial Judge erred in admitting evidence of three statements he made to the police when arrested. Badgery-Parker J, with whom the other members of the Court agreed, remarked:
The relevant principle is established in the decisions of this Court in Astill and Reeves. (See also Keevers). It is that where an accused person replies to a question put by police offices [sic] or responds to an invitation to comment on some matter put to him or her, what he or she says is in general admissible in evidence. If what is said amounts to no more than an assertion of the right to silence, it may be admitted but the jury should be immediately directed about the right to silence and that no inference adverse to the accused may be drawn by reason of the exercise of it: Astill (at pp 8-9). Where what is said is clearly an admission then, subject of course to the question of voluntariness and the possible existence in the particular circumstances of discretionary reasons for exclusion, it is admissible. Where it is clearly a denial of guilt, it is admissible and ordinarily should be given in evidence.
[15] (1994) 75 A Crim R 229 at 234.

Badgery-Parker J then went on to find that two of the statements made by the accused were not admissible, because they could not be understood as admissions of guilt. His Honour held that the remaining statement was admissible as evidence that the accused had actual knowledge of the offences. None of the statements were exculpatory and therefore the opinion expressed in the cited passage as to the admissibility of a denial of guilt is strictly obiter.
In R v Rymer,[16] the New South Wales Court of Criminal Appeal considered the admissibility of purely exculpatory statements made to police in response to questioning. At the beginning of the trial the prosecution submitted that it would not tender those statements, and that the defendant should not be allowed to cross-examine them into evidence. The trial Judge accepted that the statements were hearsay, but determined that they could be admitted pursuant to the exception in s 66 of the Evidence Act 1995 (NSW) if the accused gave evidence. The section referred to allowed the admission of evidence of the prior consistent statements of a witness where the facts referred to in the statement were, at the time, fresh in that witnesses’ memory. As soon as the accused indicated his intention to give evidence, the prosecution tendered the statement. The accused appealed his conviction on the ground that the trial Judge erred in ruling that the self-serving statement was, apart from s 66 of the Evidence Act 1995 (NSW), inadmissible as hearsay and by so ruling he was left with no practical option than but to give evidence. As it transpired, Grove J, who delivered the judgment of the Court, held that the self-serving statement was inadmissible pursuant to s 66 because the statement was not “fresh”. Grove J considered the long-standing practice of the courts of New South Wales prior to the enactment of the Evidence Act 1995 (NSW) to receive evidence of exculpatory statements independently of the power in s 66,[17] but also referred to inconsistent authority in other States. Ultimately, Grove J held that the hearsay exclusionary rule of s 59 of the Evidence Act 1995 (NSW) did not apply to Rymer’s statement to the police because it came within the proviso in s 60 of that Act, which applied to evidence “admitted because it is relevant for a purpose other than proof of asserted fact”. As I understand the decision, the purpose other than hearsay was to establish the credibility of Rymer’s plea of guilty. With respect there appear to me to be two difficulties with this approach. The first arises out of the text of the Evidence Act 1995 (NSW). Section 60 is premised on the admission of the evidence for some purpose other than its hearsay purpose. Credibility evidence, which was the admissible purpose identified by Grove J, was, at the time Rymer was decided, excluded by s 102 of the Evidence Act 1995 (NSW) unless it was adduced in the cross-examination of the witness and was evidence which had “substantial probative value”.[18] The prosecution could not adduce credibility evidence in chief and it is difficult to see how the section authorised the cross-examination of the police officer in order to adduce evidence not relevant to the police officer’s credibility but to that of the accused.
[16] (2005) 156 A Crim R 84.
[17] R v Rymer (2005) 156 A Crim R 84 at 91-2.
[18] Evidence Act 1995 (NSW) s 103(2), which now allows the admission of credibility evidence through cross-examination if it would substantially affect the credibility of the witness.
The second difficulty is of more fundamental importance. Grove J himself recognised that the concept of evidence relevant to the credibility of the plea of not guilty was problematic. With respect, I do not understand what is meant by the concept of “credibility of an implied assertion of innocence in a plea of not guilty”. The plea is not evidence and the accused does not plead as a witness. The plea is a response to the indictment and it makes no more sense to speak of the credibility of the implied assertion of innocence in the plea as it does to speak of the credibility of the implied assertion of guilt in the indictment. Whatever use the concept has for the purposes of the Evidence Act 1995 (NSW), evidence is not admissible at common law to establish the “credibility” of a plea of not guilty.
It is convenient to record here that I do not accept that the reaction of an accused when “first taxed” with an allegation is admissible unless the conduct supports an inference that the accused accepted the truth of the allegation. Prior consistent statements, whether expressly or impliedly made, are inadmissible at common law. The fact that police put an allegation to an accused and the fairness with which they have treated an accused may be relevant in a case where the defence legitimately raises an issue about the propriety of the police conduct. However, the purpose of the admission of that evidence, in such a case, is not in any way related to the exculpatory response made on such an occasion. Moreover the past practice of prosecutors can not, of itself, effect a change in the common law.
The prosecutor’s duty to tender mixed statements was the subject of a comment by Hayne J in Mahmood v Western Australia.[19] In that case, the accused gave an interview to police which was video recorded. He then performed a re-enactment of the events of the day of the crime as he had explained them and this was also videotaped. The prosecution tendered the video-recording of the interview with police, but did not tender the re-enactment video. Counsel for the accused sought to tender part of the re-enactment video and offered to tender the whole video, but the prosecution consented to the tender of only part on the ground that the whole video was “self-serving”.
[19] (2008) 232 CLR 397.
Supplementary submissions were requested by the Court on the prosecutor’s duty to tender the re-enactment video. However, Hayne J was the only member of the Court who thought it necessary to consider the issue. It follows that the remarks that I am about to cite were made by way of obiter by a single justice of the Court. Hayne J stated:
In general, the prosecution should call ‘[a]ll available witnesses … whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based’. If an accused has made inculpatory statements that are admissible in evidence, the prosecution should ordinarily lead evidence of all of those statements. It is necessary, of course, to take account of statutory provisions governing admissibility of out-of-court admissions that are not recorded. But subject to that important consideration, it is not open to the prosecution to pick and choose between those statements, whether according to what is forensically convenient or on some other basis. And in leading evidence of out-of-court assertions which the prosecution alleges are inculpatory, the prosecution must take the out-of-court assertion as a whole; the prosecution ‘cannot select a fragment and say it bears out their case, and reject all the rest that makes against their case’.[20]
[20] Mahmood v Western Australia (2008) 232 CLR 397 at 408, [39].
It can be observed that on this point Hayne J directed his attention to the selective leading of some out-of-court assertions and not others. His Honour continued:
In its supplementary submissions on this point the respondent relied on the decision of the Court of Appeal of the Supreme Court of Queensland in R v Callaghan and three Western Australian cases in which Callaghan has been considered. It was accepted in Callaghan that the interview, of which the accused had sought to tender evidence at his trial, ‘did not contain any inculpating statements’. It was in this context that Pincus JA and Thomas J said in Callaghan:
‘[I]f a prosecutor chooses to put into evidence a version which is in substance exculpatory, he makes it evidence in the case, and subject to matters of weight, it can be acted on as showing or tending to show the truth of its contents. There is no general obligation on the prosecution to call such evidence. The calling of such evidence is a benefit tendered by the prosecution and accepted by the defence.’
In Western Australia, Callaghan has been said to stand for the proposition that ‘[i]t is a matter for the prosecution to determine whether or not it wishes to lead the evidence as part of its case’ of an out-of-court statement that contains both inculpating and exculpating material. The decision in Callaghan does not establish that proposition and it is a proposition that is not consistent with the proper presentation of the prosecution case. If there is admissible evidence available to the prosecution of out-of-court statements of the accused that contain both inculpating and exculpating material, fair presentation of the prosecution case will ordinarily require that the prosecution lead all that evidence.[21] (emphasis added)
[21] Mahmood v Western Australia (2008) 232 CLR 397 at 408-409, [41].
The words I have emphasised in that passage reflect the factual circumstances with which the judgment of Hayne J in Mahmood dealt, and against which, it must be understood. In my respectful opinion, so understood the passages just cited are directed to cases where there are several out-of-court statements; in those cases the “proper” or “fair” presentation of the prosecution case will “ordinarily require that the prosecution lead all that evidence”. That proposition does not touch in any way the question raised in the present case, where the prosecution did not adduce any evidence of any inculpatory remarks.
I was also referred to a ruling made in the course of evidence by Judge Tilmouth in the District Court in R v Fry.[22] In that case, the defendant was charged with causing death by dangerous driving. At the scene of the accident, he made a number of self-serving statements to various witnesses. He was interviewed by Police about two weeks later, during which he said that he did not remember the accident or what happened. The prosecution tendered the record of interview with police, but did not propose to call evidence as to the defendant’s statements to witnesses at the scene. The defence therefore sought to lead evidence of those statements. Judge Tilmouth ruled that the defence could adduce evidence of the statements either by cross-examination of prosecution witnesses or in the defence case.
[22] [2006] SADC 36.
In my respectful opinion Judge Tilmouth’s ruling is not supported by the authorities on which it relies. The decision of the High Court in Mule v The Queen[23] concerned the proper directions that should be given where evidence of a mixed statement is adduced; the decision carries with it no implication as to whether the prosecution should lead evidence of mixed statements or the admissibility of those statements when led by the defence.
[23] (2005) 79 ALJR 1573.
In R v Su,[24] the Victorian Court of Appeal held that an attempt by one of several co-accused to cross-examine into evidence a portion of a police interview with another accused, which had not been led by the prosecution, and that had little probative value was not legitimate. The Court described the exculpatory part of mixed statements as “self-serving hearsay material and inadmissible otherwise than as part of a Crown package”.
[24] [1997] 1 VR 1.
Judge Tilmouth also referred to the authorities which hold that the rules of evidence which govern the admissibility and discretionary exclusion of incriminatory statements also apply to statements which are on their face exculpatory. However, the occasion to consider the admissibility of those statements only arises when the prosecution presses for their admission because, although the statements are exculpatory on their face, they are not truly exculpatory; they are in fact incriminatory, for example, where a false alibi has been given.It follows that that line of cases is not authority for the conclusion reached by Judge Tilmouth.
Conclusion on admissibility of statement
It can be seen from the discussion of the cases on this point (lengthy as it unfortunately must be) that two different positions have emerged over the existence of any prosecutorial obligation to tender a mixed or purely self-serving record of interview of an accused.
The question of the admissibility of an accused’s purely exculpatory statements and the question of the extent of the duty of prosecutors to lead mixed statements are related. The conflicting authorities reflect, I think, the circumstance that the common law must in these cases deal with the intersection of two conflicting principles. The first is that out-of-court statements are generally inadmissible and the second is that admissions against interest are generally admissible.
Wigmore describes the resolution of the conflict in this way:
Since the principle is that the statement is made under circumstances fairly indicating the defendant’s sincerity and accuracy, it is obvious that the situation indicates the correctness of whatever he may say while under that influence. In other words, the statement may be accepted, not merely as to the specific fact against interest, but also as to every fact contained in the same statement.
As for the limits which it thus becomes necessary to set, these must be largely a matter of judgment in each case. For the phrasing of a rough general test, different language has been used by different judges:
…
It may be doubted, however, whether for really difficult cases any additional light is gained from such phrases as ‘all matters knit up with or involved in the statement,’ or ‘all that forms an essential part of it.’ These tests give more or less arbitrary results. Going back to the living principle, a more useful test appears to be this: All parts of the speech or entry may be admitted which appear to have been made while the declarant was in the trustworthy condition of mind which permitted him to state what was against his interest. (references omitted, original emphasis).[25]
[25] J H Wigmore, Evidence in Trials at Common Law (3^rd ed, 1979) Vol 5, at 339, [1465].
In Spence v Demasi,[26] Cox J traced the historical basis of the rule that he had stated in the passage I have already cited, and then continued:
[26] (1988) 48 SASR 536.
Despite the fact that the defendant could not himself ordinarily tender a self-serving statement in proof of the matters so stated, such a statement, when tendered by the Crown because of the admissions that accompany it, will be evidence for all purposes, whatever the weight of its individual parts might be. That, I believe, reflects the current practice in the courts of this State.
There is much authority to support a like exception to the hearsay rule in civil proceedings. The old cases do not all speak with the same voice. For example, it was said by Abbott LCJ in The Queen's Case (1820) 2 Brod & B 284 at 297-298; 129 ER 976 at 981:
‘The conversations of a party to the suit, relative to the subject-matter of the suit, are, in themselves, evidence against him in the suit, and, if a counsel chooses to ask a witness as to any thing which may have been said by an adverse party, the counsel for that party has a right to lay before the court the whole which was said by his client in the same conversation; not only so much as may explain or qualify the matter introduced by the previous examination, but, even matter not properly connected with the part introduced upon the previous examination, provided only, that it relate to the subject-matter of the suit; because it would not be just to take part of a conversation as evidence against a party, without giving to the party, at the same time, the benefit of the entire residue of what he said on the same occasion.’
That was a trial on indictment, but there is no reason to think that the judges considered that there was a special rule in criminal causes. See Smith v Blandy (1825) Ry & Mood 257; 171 ER 1013, in which Lord Denman CJ held, with respect to a self-serving statement made by a plaintiff in an action on a contract:
‘The whole of what a party says at the same time, must be given in evidence, and what he says in his favour must not be taken as true, but must be left, under all the circumstances for the jury to say whether they believe it or not.’
However, in Prince v Samo (1838) 7 Ad & E 627; 112 ER 606 the principle was applied more narrowly. The plaintiff in an action for malicious arrest called his attorney who was cross-examined about a statement made by the plaintiff at an earlier trial. It was held that he could not be re-examined at large on the subject. The witness might be asked about anything said by the plaintiff that could in any way qualify or explain the statement as to which he had been cross-examined, but he had no right to add any independent history of transactions wholly unconnected with it. And see T Starkie, Practical Treatise of the Law of Evidence (4th ed, 1853), pp 231-236; J P Taylor, Law of Evidence (11th ed, 1920), Vol I, par 733. However, Phipson, Best on Evidence (11th ed, 1911), p 507 states simply, as an exception to the general exclusion of self-serving evidence, that:
‘where part of a document or statement is used as self-harming evidence against a party, he has a right to have the whole of it laid before the jury, who may then consider, and attach what weight they see fit to any self-serving statements it contains. This conception is founded on the plain principle of justice that by using a man's statement against him, you adopt that statement as evidence at least.’
The exception, it seems, may be traced back to the civilians: cf R v Paine (1696) 5 Mod 163 at 165; 87 ER 584 at 585. Griffiths CJ in holding that a party in an insolvency suit who tendered his opponent's deposition must take it as a whole, said: ‘That is the rule in criminal proceedings, and it was the rule in the Court of Chancery.’ (Jack v Smail (1905) 2 CLR 684 at 695.) Similarly per Barton J (at 708). It does not appear that these observations were confined to formal admissions by a party.[27]
[27] Spence v Demasi (1988) 48 SASR 536 at 541-2.
The survey of the authorities undertaken by Cox J shows clearly enough that self-serving statements are admissible, and have probative value, only when introduced as part of the “Crown package”. If the prosecution chooses not to lead evidence of incriminatory statements there is no relevant unfairness to the accused in the exclusion of his or her self-serving exculpatory statements. There is therefore no arbitrariness or unfairness in the operation of the common law principle. It may be a matter of “happenstance”, as Grove J observed in Rymer, as to whether an accused makes an incriminatory, exculpatory or mixed statement, but the only reason for the admission of the exculpatory part of a statement is to ensure the fair use of the incriminatory statement on which the prosecution relies. If the incriminatory statement is not led, the rationale for the admission of the exculpatory part of the statement disappears.
In my view it would be anomalous to require the prosecution to put before the Court as probative material the self serving assertions of the defendant, whom it very obviously, does not consider to be a witness of truth.
If the admissibility of mixed statements, other than as part of the prosecution tender of those mixed statements, were to be accepted, it might be claimed by a similar argument, with some superficial attractiveness, that it would be anomalous to allow the defence to adduce that evidence, but not evidence of a purely self-serving and completely exculpatory statement made by the accused. If that proposition were to be accepted, the exception would have swallowed the rule.
For these reasons I hold that the prosecution did not have an obligation to adduce evidence of the appellant’s record of interview. Alternatively, if I were to follow the approach taken in New South Wales and England there were, in my opinion, good reasons for the prosecutor to refuse to lead the evidence in this particular case. This was not a situation where the accused was spoken to at the scene of the incident soon after it happened and before he had time to consider and reflect upon it. The appellant came to the police, one month after the incident, with handwritten notes that he had prepared in advance. In my view, in this case there is a real danger that to require the prosecution to lead the evidence would be to use the prosecution as a mere conduit for the delivery by the defence of a “contrived hearsay case”.

Admitting the statement would therefore be contrary both to authority and to the purpose and intent of s 18A of the Evidence Act 1929. As such, I do not consider that the prosecutor had an obligation to tender the record of interview. The Magistrate did not err, therefore, in declining to order that the prosecution tender the interview. There was no miscarriage of justice and I would dismiss the appeal on this ground.
Appeal against sentence
The appellant was convicted and sentenced to three months imprisonment, suspended on the basis that he enter into a bond to be of good behaviour for 18 months in the sum of $10. The appellant was also ordered to pay costs in the amount of $1,170. The appellant appeals that sentence on the grounds that the Magistrate failed to provide adequate reasons for penalty and that the penalty so imposed was manifestly excessive in the circumstances of the case.
In his sentencing remarks, the Magistrate stated:
I do not propose to go into details of the assault. I have delivered my judgment on that and have assessed the facts and found the facts as they appear in my judgment.
In essence, you assaulted a young lady who was in stature, much smaller than you and you dragged, pushed, punched and shoved her as if she were a ‘rag doll’. As a result of that assault the victim suffered injuries.
The appellant complains that the Magistrate did not set out the facts giving rise to the conviction in his judgment. He complains that, as a result, the sentence is tainted by error.
In my view, the Magistrate has failed to provide adequate reasons for sentence, as required by s 9 of the Criminal Law (Sentencing) Act 1988. As a result, it falls to me to re-sentence the appellant. It is also a result of that finding that I do not need to address the question of whether the sentence imposed was manifestly excessive in the light of the appellant’s psychiatric conditions and future employment prospects, although these issues will most certainly arise during my assessment of the correct sentence to be imposed.
The maximum penalty for a basic offence of assault is 2 years imprisonment pursuant to s 20(3) of the Criminal Law Consolidation Act 1935. The appellant’s conduct in forcing the victim on to the car so that her head hit the car and in throwing her to the ground and punching her in the face about four times is toward the more serious end of the scale of possible offences considered by that section. The prosecutor in sentencing submissions before the Magistrate contended that the offence was more serious or aggravated because it was done in the presence of a child – 14 year old Jesse Clark. I do not consider that that is an aggravating feature, considering that Jesse Clark by his own account was hiding and that the appellant would not have known he was there. I think that the only relevance of the fact that the appellant committed the assault whilst in the presence of others is that it shows that he could not control his behaviour, in that he was not deterred from committing the offence by the fact that other people were in the area.
The appellant has one relevant criminal antecedent. He was found guilty of assault in July 1997. That offence was a minor one, whereby the appellant ran on to a football field, pushed the goal umpire out of the way and signalled a goal. The appellant was released by the Court, without a conviction being recorded against him, on his entering into a bond to be of good behaviour for 12 months. Other than that offence, the appellant has a good record. He has also provided the Court with four testimonials, which each describe the appellant as a person of good character, a compassionate and caring man and a person who is willing to help others. Two of the referees expressed surprise that he would commit an assault.
The appellant tendered four medical reports. The first of those reports concluded that the appellant suffers from mild obstructive sleep apnea. Then there are three reports, dated 6 May 2005, 10 November 2006 and 23 July 2007, by Dr Helen Tingay, a psychiatrist. In her first report, Dr Tingay stated that the appellant:
… has had episodes of constant flat mood with insomnia, tiredness, agitation and turmoil since the age of fifteen. Generally this is reflected as depressed mood, and lack of motivation, but there is also an intercurrent and unpredictable element of irritability and a tendency to feel aggressive.
Dr Tingay reported that the appellant had suffered learning difficulties throughout his life, and that he probably suffers from post-traumatic stress disorder arising out of a “long and consistent history of physical abuse by his father for twenty-four years”. She concluded: “Firstly I am sure that he suffers Bipolar Affective Disorder and that there is a tendency to be aggressive and irritable when manic. Secondly he suffers PTSD”. Dr Tingay’s second report of 10 November 2006 states that the appellant had improved since the first study. Dr Tingay diagnosed the appellant as suffering from an Adjustment Disorder with anxious and depressed mood, and from ADHD (Attention Deficit Hyperactivity Disorder). The third report noted that when the appellant came to see her on 22 June 2007, he had lost his job, ended his relationship with his girlfriend and ceased the medication he was on. It also noted that the appellant had been accepted into a Personal Support Program, and that Dr Tingay had referred him to another psychiatrist for ongoing support given Dr Tingay’s retirement.
The appellant’s attack on Ms Smart-Chaustowski was violent and protracted. There were several occasions during the course of the attack when the appellant could have disengaged but instead decided to continue his assault.
Violence in the course of social interactions such as this is not acceptable; a sentence of imprisonment may well be appropriate, even in the case of a first offender of good character.[28] It is of considerable concern that the presence of others in no way moderated the appellant’s violence. In my view, notwithstanding the appellant’s reasonable antecedents, the need for personal and general deterrence to protect the safety of the community demands no lesser penalty than the one imposed by the Magistrate.
[28] Males v Police [2009] SASC 52; Yardley v Betts (1979) 22 SASR 108; Birch v Fitzgerald (1975) 11 SASR 114.
I would therefore dismiss the appellant’s appeal against his sentence.