Bollen v Police - [2022] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
BOLLEN v POLICE
[2022] SASC 82
Judgment of the Honourable Justice Kimber
11 August 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
The appellant appeals against two separate convictions in the Magistrates Court. The appeals were heard together but are described as ‘SCCRM-22-152’ and SCCRM-22-153’ respectively. Both appeals were out of time.
SCCRM-22-152
The appellant was charged with the offence of Failing to Comply with a Bail Agreement contrary to s 17(1) of the Bail Act 1985 (SA). A condition of that agreement was that the appellant would not approach or communicate, directly or indirectly, with a person who also lived the same small town. After a number of appearances in the Magistrates Court and having been in custody for some time, the appellant represented himself and entered a plea of guilty. The appellant was convicted without further penalty. At the time of the plea, the appellant indicated his plea was entered under ‘duress’ and out of ‘convenience’.
The appellant appealed on the following grounds:
1.      The plea was improperly induced and entered under duress;
2.      The Magistrate demonstrated bias;
3.      The appellant was denied the opportunity to present evidence;
4.      The conviction is unsafe.

Held per Kimber J, granting an extension of time but dismissing the appeal:
1.      There was no improper inducement, nor did the appellant establish duress. The guilty plea was entered freely and in what the appellant thought was in his interests;
2.      There was no bias;
3.      There was no denial of an opportunity to plead not guilty and present evidence at trial;
4.      The conviction is not unsafe.

SCCRM-22-153
Following a trial in the Magistrates Court, the appellant was found guilty of the offence of Aggravated Assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). The complainant knew the appellant. The complainant alleged the appellant rode a trail bike toward him, stopped and struck the complainant. The grounds of appeal can be broadly characterised as follows:
1.      It was not open for the Magistrate to accept the evidence of the complainant beyond a        reasonable doubt, there was no motive and the complainant was not honest and reliable;
2.      The appellant was denied the opportunity to present evidence, on the basis:
a.the Magistrate showed a demonstrable bias in not allowing the appellant to produce certain evidence; and
b.      the Magistrate declined to hear evidence from certain police officers.

Held per Kimber J, granting an extension of time but dismissing the appeal:
1. There was no onus upon the prosecution to prove a motive. It was open to accept the evidence of the complainant beyond a reasonable doubt.
2. The contention of the appellant the Magistrate showed bias was premised on a complaint the Magistrate denied the appellant the opportunity to lead evidence. That premise is not established. In any event, the matters put forward on the appeal do not cast doubt on the verdict. Although the failure to call one police officer was an irregularity, there was no miscarriage of justice.

Bail Act 1985 (SA) s 17(1); Magistrates Court Act 1991 (SA) s 42(4); Supreme Court Criminal Rules 2014 (SA) r 104V(2), referred to.
Meissner v The Queen (1995) 184 CLR 132; The Queen v Crassen (1936) 55 CLR 509; Charisteas v Charisteas (2021) 95 ALJR 82, applied.
Markl v Police [2005] SASC 141; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; SBBA v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2003] FCAFC 90; 500 Burwood Highway Pty Ltd v Australian Unity Ltd [2012] VSC 596; Gallagher v The Queen (1985-1986) 160 CLR 392, considered.

BOLLEN v POLICE
[2022] SASC 82
Magistrates Appeal: Criminal
KIMBER J:
Overview

The appellant has instituted two appeals against conviction. They relate to separate convictions in the Magistrates Court. As the appeals were heard at the same time, both are dealt with in this single judgment.
The first appeal (SCCRM-22-152) relates to an offence of Failing to Comply with a Bail Agreement contrary to s 17(1) of the Bail Act 1985 (SA) (BA).[1]The appellant entered a plea of guilty and was convicted without further penalty. The second appeal (SCCRM-22-153) relates to an offence of Aggravated Assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The appellant was found guilty following a trial, and was convicted and released on a bond to be of good behaviour for a period of 12 months
[1] Bail Act 1985 (SA) s 17(1).
In the court below, the appellant represented himself. He did the same in the appeals. Both appeals are out of time. I grant extensions of time but dismiss both appeals.
I will first deal with the appeal with respect to the conviction for Breach of Bail.
Appeal against conviction for Breach of Bail (SCCRM–22-152)
Overview
On 7 December 2020 the appellant entered into a bail agreement. It was a condition of that agreement that he not approach or communicate, either directly or indirectly, with Angela Irvine. On 16 February 2021 Ms Irvine alleged the appellant shone a spotlight in her eyes for about five minutes when she was reversing out of her driveway. Ms Irvine also alleged she heard the appellant abusing her and that she recognised his voice.
On 17 February 2021 the appellant was charged on an Information with Failing to Comply with the Bail Agreement entered into on 7 December 2020. The appellant was arrested and bail was refused by the police.
The appellant appeared in the Magistrates Court on 17 February 2021. That appearance was before the same Magistrate before whom the guilty plea was ultimately entered. On that occasion the duty solicitor advised the Court that the appellant wished to represent himself on an application for bail. The Magistrate refused bail. The appellant next appeared in the Magistrates Court on 30 April 2021 and then on 4 May 2021. On both occasions the appellant was unrepresented and did not enter a plea nor apply for bail.
On 8 June 2021 the appellant again appeared unrepresented, and the matter was listed for a pre-trial conference. There was no application for bail. On 30 August 2021 the Court ordered reports pursuant to Part 8A of the CLCA and the matter was remanded to 5 January 2022.
On 5 January 2022 the Magistrate told the appellant (who again appeared unrepresented) that the report pursuant to Part 8A of the CLCA indicated he was fit to plead. Following some exchanges between the appellant and the Magistrate, the appellant then pleaded guilty to the offence of Failing to Comply with a Bail Agreement on 16 February 2021. I will return later to some of the exchanges of particular significance with respect to the plea of guilty.
Appeal Grounds – Breach of Bail
I will set out the grounds of appeal as they appear in the notice of appeal:
1.A miscarriage of justice occurred due to the requisite standard of proof not being reached. The conviction relied solely upon the powerful inducement offered, knowingly, by Magistrate Fisher for the appellant to enter a false guilty plea, obtained under extreme duress. That inducement being the appellants’ [sic] immediate release from prison, for his birthday, after 10 months and three weeks in prison, on bail which was previously denied.
2. Magistrate Fisher evinced a demonstrable bias against the appellant, in denying bail in the first instance on 17 February 2021, denying the appellant the presumption of innocence, and then not permitting the appellant the opportunity to submit contradictory and compelling video evidence showing he did not make contact with the protected person.
3. His Honour failed to offer the appellant any alternative solution, such as bail, in order to prepare adequately for his trial, and in doing so, failed in his duties to the unrepresented and incarcerated person.
4.The conviction and guilty verdict are, unsafe, and places the integrity of the court in a compromised position.
The appellant filed written submissions, including a reply, which he supplemented with oral submissions.
Ground 1 – ‘false guilty plea’
As I understand it, the appellant has three contentions under this ground. First, the charge was not established. Second, his plea of guilty was ‘induced’. Third, the plea was entered under ‘duress’.
It is necessary to say a little bit more about the appellant’s contentions. It is helpful to commence with the complaints about ‘inducement’ and ‘duress’.
As I understand the appellant’s submissions, the ‘inducement’ alleged was a promise by the Magistrate of release from custody and the ‘duress’ was the appellant’s asserted treatment in custody. As to the latter, the appellant submitted ‘pretty much 100 percent’ of the duress at the time of the guilty plea was ‘his treatment by Corrections’.[2] In his written submissions, the appellant asserted he had been treated inappropriately more than once while in custody. His complaints included, but were not limited to, assertions about his medical treatment, including his engagement with psychiatrists.
Events preceding guilty plea on 5 January 2022
[2] Appeal Transcript, 22 June 2022, p. 12.
Evaluation of the appellant’s contentions requires consideration of what occurred at the time of the plea.
The transcript of the hearing on 5 January 2022 reveals no improper inducement was offered. At the commencement of the hearing, the appellant was told by the Magistrate there was more than one matter which had been before the Court for some time and the matter keeping him in custody was the offence alleged to have been committed on 16 February 2021. In response, the appellant indicated he had contested all those issues. The following exchange then occurred:[3]
[3]     MCWHY-21-246 Transcript of Proceedings, 5 January 2022, p. 2-3.
Magistrate:Okay. So, what I propose to do Mr Bollen is list the matter that is holding you in custody. I can list that matter for trial -
Prosecutor:What was the date of that offence your Honour, I’ve got several breaches of bail.
Magistrate: It’s 16 February 2021.
Prosecutor: Thank you.
Magistrate: I will list the matter for trial on 10 February.
Appellant:   Can I say something your Honour?
Magistrate: Yes certainly.
Appellant:   I wish to plead guilty to all those today.
Magistrate: You wish to plead guilty to all the matters today?
Appellant:   Yes your Honour.
Magistrate:Okay, we will do that then. I will just read out the charges. It is alleged that on 16 February 2021, without reasonable excuse, you contravened a condition of bail how do you plead to that charge, guilty or not guilty?
Appellant:I’m in a state of confusion, I’ve got to plead guilty to get out of these but I didn’t do any of the things they say. So I’m pleading guilty.
Magistrate: You wish to enter a plea of guilty as a matter of convenience?
Appellant:   Under duress.
Magistrate:Well, look, you can enter a plea of guilty as a matter of convenience, but you under that you would be sentenced on the basis of the police allegations.
Appellant:   Can I get an indication of what my sentencing will be?
Magistrate:Well, given the time that you have spent in custody I would suggest that would go a long way towards penalty for all of these offences.
Appellant:   What sort of tariff will I be facing?
Magistrate: In terms of what, victims of crim levies?
Appellant:   Yeah, cash.
Magistrate:It would be difficult for me to calculate that right now, it will probably be in the order of about $2,000 but I can’t – without having them all calculated, I can’t tell you. They are imposed by the government, it is not something the court has control over.
Appellant:   Righto. What about the penalties on those breaches of bail?
Magistrate: Well I could take into account the time that you have spent in custody.
Appellant:   Okay.
Magistrate: And as I have indicated –
Appellant:I have been unable to get a legal opinion on any of these matters, accessing legal services in gaol is pretty much impossible so I don’t know what to do.
Magistrate: Well –
Appellant:   I will plead guilty for convenience and under duress to all of them.
Against the background of the above, the Magistrate then read out the breach of bail offence the subject of this appeal and the appellant entered a guilty plea. When other alleged offending was raised with the appellant after the plea of guilty, the following exchange then occurred:[4]
Appellant:   Am I just pleading guilty to the one charge that’s keeping me here?
Magistrate: Well, yes you could do that -
Appellant:Will that let me out today or not?
Magistrate: Yes it will.
Appellant:   Can I just do that please?
[4]     Ibid p. 4.
The appellant then said he was just pleading guilty to the one offence, being the offence the subject of this appeal, and was ‘just doing the one for a convenience so I can go out and seek legal advice on all these’.[5] The reference to ‘all these’ was a reference to matters other than the breach of bail the subject of this appeal.
[5] Ibid p. 4.
The following further exchange then occurred:[6]
Magistrate:Mr Bollen what I propose to do is convict without further penalty, having regard to your time served. That will see you released today. Is there anything further that you want to say about the matter?
Appellant:I have compelling evidence to refute that claim, but there is nothing I can do about it now.
Magistrate:Okay. In relation to this matter, you will be convicted without further penalty. There is a victims of crime levy and prosecution fee, I waive court costs. You are back in court on 10 February at 9.30 in relation to the other matters. I urge you to get some legal representation in the meantime. Thank you.
Discussion on inducement to plead guilty and circumstances that a plea may be set aside
[6] Ibid pp. 5-6.
It is necessary to consider the circumstances in which a plea of guilty might be set aside. In Meissner v The Queen, Brennan, Toohey and McHugh JJ held:[7]
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person's own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence. The principle is stated by Lawton LJ in R v Inns:
'The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused's guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment, a nullity.’
It may not be strictly accurate to describe what follows as a nullity, but it is certainly liable to be set aside and a new trial ordered. If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person's own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice. In such a case, the court is falsely led to dispense with a trial on the faith of a defective plea. The course of justice is thus perverted.
(Footnotes omitted)
[7] Meissner v The Queen (1995) 184 CLR 132, 141.
Dawson J held:[8]
It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.
(Footnotes omitted)
[8] Ibid 157.
Consistent with the above, this Court has held that in an appeal such as this, the principal question is whether there is a reasonable apprehension that justice miscarried in the court below.[9]
[9] Markl v Police [2005] SASC 141, [34].
As set out above, the inducement alleged by the appellant was the promise of release from custody. As a starting point to consideration of whether there was any relevant inducement, it is of significance that the appellant told the Magistrate he wanted to enter a guilty plea before the issue of the possible sentencing outcome was raised. That having been said by the appellant, it was he who asked for an indication of what his sentence might be. In those circumstances, it cannot be said there was any irregularity in the Magistrate saying what he did. That is, that the time in custody would go ‘a long way’ towards penalty for all offences. Although unnecessary to decide as it is strictly only what occurred before the plea which matters, there was also no irregularity in anything said by the Magistrate after the plea was entered. Indeed the exchanges which occurred after the entry of the guilty plea only tend to confirm the appellant was acting in what he thought to be in his interests.
Having considered what took place at the time of the plea, it is clear there was no inducement which should cause the plea of guilty to be set aside. As the plurality held in Meissner v The Queen, an ‘inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person to make a free choice in that person’s own interests’.[10] I am satisfied that is what occurred in this case. The appellant sought an indication of what his sentence might be and was given one in general, but appropriate, terms. His question having been answered, he entered a guilty plea. It apparently having been important for the appellant to know what his penalty might be and the response being in no way inappropriate, the appellant cannot now succeed in his contention there was something improper in what took place or that there is a reasonable apprehension that justice miscarried.
[10] Meissner v The Queen (1995) 184 CLR 132, 141.
As for the appellant’s contention regarding ‘duress’, the appellant put no evidence before the Court on appeal of the alleged ‘duress’. The material upon which the appellant relied was confined to his submissions. It follows that this contention can be dismissed on that basis alone.

Nonetheless, as a matter of completeness and as the appellant was unrepresented, I will consider the submissions of the appellant. Assuming it was appropriate to put to one side that there was no evidence presented capable of establishing ‘duress’, in my view it would not be necessary for this Court to resolve the complaints the appellant makes about his treatment in custody. This is because before the plea was entered, it is evident the appellant understood he could enter a plea of convenience and did so. The appellant having been told by the Magistrate he could enter a plea on that basis, the appellant put that forward as one of the reasons for his plea. In those circumstances, I am not satisfied that any ‘duress’ was any motive for his plea of guilty. The appellant said more than once it was a plea ‘under duress’, but also that he was entering his plea as a matter of ‘convenience’.[11] Importantly after the appellant first mentioned ‘duress’, the Magistrate made clear that he could accept a plea of ‘convenience’, and the appellant then used that word in exchanges which followed.[12] Given what the Magistrate said, and the use of the word ‘convenience’ by the appellant, I am satisfied the appellant knew he could enter a plea of ‘convenience’ and in that knowledge he did so. Given the appellant used the word ‘convenience’, I am satisfied the plea was entered in ‘exercise of a free choice to serve [the appellant’s] own interests’, [13] notwithstanding that the appellant also used the word ‘duress’ at times. The ‘interest’ in the mind of the appellant was the possibility of his release from custody. That is consistent with the appellant seeking an indication of what his sentence might be and entering a guilty plea after some indication was given.
[11] MCWHY-21-246 Transcript of Proceedings, 5 January 2022, p. 3.
[12] Ibid pp. 2-3.
[13] Meissner v The Queen (1995) 184 CLR 132, 142.
The appellant’s remaining contention under this ground is that the ‘requisite standard’ of proof was not reached. During the appeal there was no objection by the respondent to the Court receiving exhibits from the appellant which he submitted undermined the veracity of the alleged victim’s complaint. Those exhibits were described by the appellant in the following way:[14]
[14] Appeal Book (SCCRM-22-152) p. 15; Appeal Transcript, 22 June 2022, pp. 8-10; Appellant’s Written Submissions.
Exhibit A or 1.
Statement to SAPOL by Angela Irvine 266 Gill Street Iron Knob SA 5611.
Exhibit B or 2.
Officer Ellis Statement.
Exhibit C or 3.
Officer Feibig Statement
Exhibit D or 4.
Information sheet SAPOL
Exhibit E or 5
FOC. SAPOL
Exhibit F or 6.
Photo: Front of 276 Sharp Tce looking West.
Exhibit G or 7.
Photo: Front of 276 Sharp Tce. Looking North.
Exhibit H or 8.
Photo: View from driveway of 266 Gill St, looking South East toward 276 Sharp Tce.
Exhibit I or 9:
Photo: Frame from video log, 16 February 2021.
Exhibit J or 10:
Photo: Daytime view of the above video log with position of lights of car marked in paddock.
Exhibit K or 11:
Photo: Google earth image of part of Iron Knob.
This contention can be dealt with without consideration of the above exhibits. As the plurality in Meissner v The Queen held, it ‘is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence’.[15] In The Queen v Crassen[16] it was held that a person who well understands the charge against him and who decides to plead guilty for reasons of expediency cannot afterwards complain on the basis he was innocent. Having considered the transcript of what took place at the time of the plea, I am satisfied the appellant well understood the charge against him and, as set out above, made a free choice to enter a guilty plea.
[15] Meissner v The Queen (1995) 184 CLR 132, 141.
[16] The Queen v Crassen (1936) 55 CLR 509; Markl v Police [2005] SASC 141.
I grant the extension of time with respect to ground 1 but dismiss that ground.
Ground 2 – Bias
Principles on actual bias and apprehended bias
It is somewhat unclear from the appellant’s submissions whether his contention is of actual, or apprehended, bias. Nonetheless, in this appeal, precise characterisation of the bias alleged is unnecessary.
A party seeking to establish actual bias bears a heavy onus.[17] Actual bias is subject to a ‘stringent standard of proof’ and will only be upheld ‘where the accusations are distinctly made and clearly proved’ and where the accusation of bias is ‘firmly established’.[18] It requires the decision maker to have prejudged the matter and have a mind closed to any argument in support of a contrary conclusion,[19] or that the decision maker does not bring an impartial mind to the resolution of the question her or she is required to decide.[20]
[17] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, [97].
[18] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, [127].
[19] SBBA v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2003] FCAFC 90, [15].
[20] 500 Burwood Highway Pty Ltd v Australian Unity Ltd [2012] VSC 596, [262].
In Charisteas v Charisteas the High Court established a two-step test in application of the apprehension of bias principles enshrined in its previous decision of Ebner v Offıcial Trustee in Bankruptcy. The plurality Kiefel CJ, Gaegler, Keane, Gordon and Gleeson JJ made clear: [21]
Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
[21] Charisteas v Charisteas (2021) 95 ALJR 824, [11] citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]-[8].
Central to the question of bias is identification of the ‘question’ to be decided by the judicial officer. This was not a trial. The relevant question is whether it was appropriate to accept the plea. As to that question, the transcript permits only of the conclusion the Magistrate was careful to explain to the appellant he could enter a plea of ‘convenience’. Nonetheless, I turn to the matters the appellant has particularised under this ground.
The first matter particularised is the refusal of bail on 17 February 2021. There is nothing before me to suggest that refusal was beyond the discretion of the Magistrate. Putting that aside, that a Magistrate has refused an application for bail does not, without more, found an allegation of bias. This complaint must be dismissed.
The second contention is that bias arises from a denial of the presumption of innocence, and the appellant the opportunity to submit evidence said to be contrary to the prosecution case. It is clear there was no denial of the presumption of innocence. Equally it is clear, as will be explored below in discussion of ground 3, the appellant was not denied the opportunity to submit evidence contrary to the prosecution case – he chose not to do so. As set above, I am satisfied the guilty plea was a free choice by the appellant.
I grant an extension of time but dismiss ground 2.
Ground 3 – Denial of opportunity to present evidence contrary to guilt
Under this ground the appellant complains the Magistrate did not permit him to submit ‘contradictory and compelling video evidence’. This complaint must also be dismissed once the transcript is considered. Having received a response to his request for an indication of sentence, subsequently pleading guilty and being sentenced, the appellant said - ‘I have compelling evidence to refute that claim, but there is nothing I can do about that now’.[22] The appellant’s comment is only consistent with him having in mind evidence he believed was contrary to guilt on the day of his plea. Nevertheless, the only conclusion open from the transcript is the appellant nonetheless chose to plead guilty.
[22] MCWHY-21-246 Transcript of Proceedings, 5 January 2022, pp. 5-6.
As for the contention the appellant was not permitted the opportunity to lead this evidence, that also must be rejected. At no point did the appellant ask to put evidence before the Court below and at no point did the Magistrate deny the appellant the opportunity to do so. For reasons already given, what occurred is consistent with the appellant wanting to enter a plea of guilty for reasons he thought in his interests.
As for the complaint the Magistrate ‘failed to offer the appellant any alternative solution, such as bail, in order to prepare adequately for his trial’ it was not for the Magistrate to give such advice. For the reasons already given, I am satisfied the plea of guilty was the result of a free choice by the appellant.
I grant an extension of time but dismiss ground 3.
Ground 4 – Unsafe Verdict
As I understood the submissions of the appellant, the particulars of this ground are the matters set out in grounds 1-3. For reasons already given, those grounds are not made out and are dismissed. It is enough to observe I am satisfied the plea of guilty was freely made and entered in what the appellant thought was his own interests.
Appeal against conviction – Aggravated Assault (SCCRM-22-153)
Overview
The offence the subject of this appeal relates to an incident at Iron Knob on 24 June 2020. The circumstances of the alleged offending are as follows. On the prosecution case, Mr Jacobs (the complainant) was away from his home, having taken his dogs for a walk. Having returned to his vehicle at the completion of that walk, the complainant alleged he was standing alongside his vehicle when the offender came towards him on a trail bike. The complainant alleged the offender stopped and then slapped him across the left cheek, causing pain and a bloodied nose. The offender then reached into the complainant’s car, took the keys from the ignition and threw them into the bushes nearby. The offender then ran away.
There was no dispute the complainant and the appellant knew each other before the alleged incident.
The Trial
Immediately before the trial commenced, the appellant’s solicitor was given leave to withdraw. The appellant confirmed he wished to proceed without being represented and the trial took place.
At trial the complainant was the only witness called by the prosecutor. The complainant gave evidence of the assault and identified the appellant as the offender. The complainant said the offender was riding a blue and white trail bike which he had previously seen the appellant riding in Iron Knob. The complainant said the appellant was wearing a black coat and white helmet that was ‘like an open face helmet’.[23] As the to the helmet, the following exchange occurred:[24]
Q      So open face, so when you say open face how do you mean open face.
A      Well the shield come down around the side of here a bit
Q      Right.
A      But the face was all open.
Q      It was enough to see the face you say, is that right.
A      Yes.
[23] MCWHY-20-997 Trial Transcript, 3 June 2021, p. 15.
[24] Ibid p. 15.
The complainant said the blow caused blood to flow from his nose, but he did not seek medical treatment. He said his wife had seen the blood and the next day a police officer had taken a photograph of the injury to his nose.
The appellant cross-examined the complainant. When asked whether he was sure he had been hit in the face, the complainant said that he was. When the appellant put to the complainant he did not own an open face helmet, the complainant said ‘I think you do’.[25] When it was put the appellant owned a blue and white motocross helmet, the complainant said ‘well you didn’t have it closed up that day’.[26]
[25] Ibid p. 23.
[26] Ibid p. 24.
The appellant gave evidence. He said he had been living in Iron Knob since February 2019 and knew the complainant ‘quite well’.[27] The appellant said he had not approached the appellant and struck him. The appellant gave evidence he had two motorcycles. One motorcycle was a blue and white trail bike which he said he only used ‘in the desert to take photographs of animals, of wildlife, of panorama scenes, that sort of stuff’.[28] The other was a scooter which the appellant said he rode around town.[29] As for helmets, the appellant said he owned only two, one ‘a full faced motocross style helmet that wears brac [sic] goggles’ and ‘another full faced street helmet for riding the scooter’.[30]
[27] Ibid p. 34.
[28] Ibid p. 34.
[29] Ibid p. 35.
[30] Ibid p. 35.
Grounds of appeal
The grounds of appeal as they appear in the notice of appeal are as follows:
1.A miscarriage of justice occurred due to the requisite standard of proof not being reached. The conviction relied solely upon the testimony of the appellants [sic] accuser.
No motive could be assigned to the allegation of assault, no supporting evidence of any kind was offered for the court to consider. The appellant had no reason to commit the alleged assault, nor did he have the opportunity, not being at the place the alleged assault occurred. Magistrate Fisher denied the appellant the benefit of the doubt using discretionary powers that were inappropriate in the circumstances.
2.Magistrate Fisher evinced a demonstrable bias against the appellant, in not permitting the appellant the opportunity to submit contradictory photographic or physical evidence supporting his claim that he does not own the apparel described by his accuser nor does the appellant fit the description offered to the court.
His Honour declined to hear evidence from the arresting police officer (who was available and in the holding cells), or the previous officers who responded to the original complaint days prior and who would have been in a position to deny or confirm the existence of any wound(s) or that evidence in support of the accusers [sic] claims that such photographic evidence of the alleged wound(s) existed and in doing so, failed in his duties to the unrepresented and incarcerated person.
The conviction and guilty verdict are, unsafe, and places the integrity of the court in a compromised position.
The appellant filed written submissions, including a reply, which he supplemented with oral submissions.
Ground 1
As I understand this ground, the appellant contends it was not open to the Magistrate to accept the evidence of the complainant beyond a reasonable doubt. The balance of what is set out in the ground of appeal are, as I understand it, particulars of that contention. It is helpful to first consider each of the particulars.
The evidence of the complainant
The first particular is that the evidence of the complainant was unsupported. As I understand it, this complaint is directed towards the absence of evidence supporting the evidence of the complaint about the occurrence of any assault.
There did not need to be support for the evidence of the complainant about him being assaulted before his evidence could be accepted beyond a reasonable doubt. In any event, the Magistrate did not overlook that the prosecution case relied entirely upon the evidence of the complainant.[31] Further, there is nothing before the Court which establishes it was an error for the Magistrate to accept the evidence, as he did, on the basis that the complainant was a ‘very impressive witness’[32] and that his evidence was ‘compelling and convincing’ beyond a reasonable doubt.[33]
Motive
[31] Ibid p. 3.
[32] Ibid p. 3.
[33] Ibid p. 4.
As for the contention the appellant had no reason to commit the offence, two observations may be made. First, there was no obligation upon the prosecution to prove a reason (i.e. - motive). The existence of a reason for the appellant to assault the complainant was not an element of the offence. Second, on the evidence, there was a potential reason. There was evidence that, as the Magistrate described it, the appellant was ‘ill disposed towards the complainant’[34] before the incident subject of the charge. The complainant gave evidence that three or four months before the incident the appellant ceased being friendly and the change in behaviour included the appellant making false and derogatory allegations. Although there was no evidence to explain what caused a change in the appellant’s attitude toward the complainant, if accepted, this aspect of the complainant’s evidence established a potential reason for the appellant to commit the offence.
Opportunity
[34] Ibid p. 3.
As for the contention the appellant did not ‘have the opportunity, not being at the place the alleged assault occurred’, the only evidence before the Magistrate that the appellant was not present was given by the appellant. The Magistrate did not overlook that evidence. The Magistrate observed that he was ‘not impressed’[35] with the evidence of the appellant and concluded he was ‘neither an honest or reliable witness’.[36] Bearing in mind the advantage enjoyed by the Magistrate in seeing and hearing the evidence, it cannot be said the conclusions he drew were not open.
Additional complaints
[35] Ibid p. 4.
[36] Ibid p. 4.
On the hearing of the appeal, the appellant advanced further matters which he submitted undermined the honesty and reliability of the evidence of the complainant. The appellant drew attention to the evidence of the complainant on the following topics: the speed of the trail bike (40-60km/h); the distance over which it travelled once seen for the first time (150 yards) and the duration of the incident (8 seconds). Having calculated how far the trail bike would have travelled in 8 seconds, the appellant submitted the evidence of the complainant was unreliable. The appellant submitted the incident must have taken much longer than 8 seconds.
On the assumption the evidence of the complainant about range of speed and distance travelled is reliable, it can be accepted that if the incident took place, longer than 8 seconds must have passed. Nonetheless, the submissions of the appellant face two hurdles which he has not overcome. The first being it is notorious that estimates of time, distance and speed may be inaccurate when what is an unexpected event occurs. The second is the evidence does not suggest the complainant was claiming his evidence was precise on these three topics. The evidence of distance came in answer to being asked ‘roughly how far away’[37] the trail bike was; while the complaint said the trail bike was travelling at ‘at least 40‑60k’s’, he was then asked ‘so roughly’ and responded ‘yes’.[38] When asked how long passed between seeing the trail bike for the first time and being struck, the complaint said ‘no more than about 8 seconds I suppose’.[39]
[37] Ibid p. 11.
[38] Ibid p.12.
[39] Ibid p. 15
Given the matters immediately above, the submissions of the appellant about time, distance and speed do not cause me to consider the evidence of the complainant should not have been accepted.
Another matter raised by the appellant was that, in his submission, the area where the incident was said to have taken place was not an area in which a trail bike could travel at the speed estimated by the complainant. The appellant supported this submission by attaching two photographs to his written submissions. The first difficulty for the appellant in making this submission is that there is no evidence the photographs had been taken in the precise relevant location. This submission constitutes no more than an assertion made by the appellant on the hearing of the appeal. The second difficulty is the appellant did not establish the evidence was ‘fresh’ such that it might be admitted pursuant to s 42(4) of the Magistrates Court Act 1991 (SA).[40] The appellant has not established the photographs could not have been the subject of evidence at trial with ‘reasonable diligence’.[41] That is enough to dismiss this complaint. However, even putting those two matters aside, even were the photographs admitted as evidence on the appeal, the photographs would not cause me to consider that ‘there is a significant possibility’[42] the Magistrate acting reasonably would have found the appellant not guilty had the evidence been before him. The photographs are to be considered in the context of the evidence at the trial.[43] First, even accepting a trail bike might be unlikely, even unable, to travel at the speeds estimated in the area shown in the photographs, as set out above, the evidence of speed was not precise. Second, given the complainant said the trail bike came to a stop, it must have slowed.
[40] Magistrates Court Act1991 (SA) s 42(4).
[41] Gallagher v The Queen (1985-1986) 160 CLR 392, 395.
[42] Ibid 399, 402.
[43] Ibid 402-403.

The other matter raised by the appellant related to the evidence of the complainant about what happened to his keys during the incident. The complainant said the appellant took his keys from the ignition of his vehicle and threw them into the bush. When asked ‘roughly how far away’ the keys were thrown, the complaint said it ‘would’ve been 25, 30 yards’.[44] With respect to that evidence, the complainant submitted on the hearing of the appeal that he could throw keys no more than ‘16 metres’[45], (i.e. - about 17 and a half yards). Two observations can be made about this submission. First, even if the appellant had given evidence of this on the appeal, it would not be ‘fresh’. It was evidence the appellant could have given at trial with ‘reasonable diligence’. Second, and putting that entirely to one side, even if such evidence had been given, was ‘fresh’ and was accepted, the evidence of the complainant about how far his keys were thrown is, on any view, no more than an estimate given the question asked and the form of his response. For that reason, even if what the appellant advanced on the appeal was ‘fresh’ evidence, it would not cause me to consider there is a significant possibility the Magistrate acting reasonably would have found the appellant not guilty.
[44] MCWHY-20-997 Trial Transcript, 3 June 2021, p. 14.
[45] Appellant’s Written Submissions.
These additional complaints must be dismissed.
Ground 1 must be dismissed.
Ground 2
As I understand this ground, there is more than one complaint particularised.
Denial of opportunity to present evidence
The first particular of ground 2 is the Magistrate showed ‘demonstrable bias’ in not permitting the appellant to produce ‘photographic or physical evidence’ in support of his evidence that he did not own clothing like that described by the complainant, nor otherwise fitted the description of the offender. On the hearing of the appeal, the respondent did not oppose me receiving the following exhibits from the appellant:
Exhibit A.
Video of the complainant.
Exhibit B.
Trial transcript dated 3^rd June 2021.
Exhibit C.
Magistrate G. Fisher, reserved Judgement, dated 15 July 2021
Exhibit D.
Witness statement to Police.
The principles with respect to actual and apprehended bias are set out earlier in this judgment. It is unnecessary to further consider those principles. It is also unnecessary to contemplate whether it is in the ‘interests of justice’ to consider the exhibits produced by the appellant during the hearing of the appeal.[46] The complaint of the appellant is premised upon him not being permitted to produce certain evidence. If that premise is not established, this complaint will not be made out.
[46] Magistrates Court Act 1991 (SA) s 42(4).
At the conclusion of the prosecution case, the appellant initially indicated that he did not intend to give evidence. However, when making closing submissions, the appellant referred to matters not the subject of evidence and the Magistrate pointed out there was no evidence of much, if any at all, of what was being submitted. The appellant then chose to give evidence. Before giving evidence, the appellant said:[47]
Okay. I can’t produce evidence in this condition that I don’t own any of that stuff, I can only show you what I do own, but not now. So there’s no way I can present anything in this current state of play.
[47] MCWHY-20-997 Trial Transcript, 3 June 2021, p. 33.
It is reasonable to conclude from the above that the appellant was referring to at least some of the evidence upon which he sought to rely in the appeal. Nonetheless, at no point did the appellant ask for an opportunity to produce ‘photographic or physical evidence’. Even more importantly, given what is alleged within the ground of appeal, at no point did the Magistrate not permit the appellant to produce any such evidence. The appellant has not made out the premise which underpins this complaint. That is, I am not satisfied the appellant was not permitted to lead certain evidence. This complaint must be dismissed.
Notwithstanding this complaint must be dismissed for the reasons set out above, as the appellant is unrepresented, as a matter of completeness, I have considered the materials provided by the appellant during the hearing of the appeal and have assumed, without deciding, those aspects of what was produced on appeal which were not produced at trial are ‘fresh’ evidence.[48] On that assumption, the videos provided by the appellant during the hearing of the appeal would not cause me to doubt the appropriateness of the Magistrate accepting the necessary aspects of the complainant’s evidence beyond a reasonable doubt. The only two exhibits the Court did not already have are a collection of videos which the appellant said were filmed after the day of the alleged offence and his statement. I have watched these videos. For the most part, they show no more than a car driving around what I have assumed is Iron Knob. On the further assumption the car shown is being driven by the complainant, the videos are not inconsistent with any aspect of the complainant’s evidence. Some of the videos show a person, I assume the complainant, in the rear or side yard of his home. In at least one, he appears to be speaking in the direction of the person making the video. I have assumed that person is the appellant. Nothing in those videos is contrary to the complainant’s evidence at trial. The videos do not cast doubt on the complainant’s evidence. As for the complainant’s statement, there is no significant inconsistency between that statement and the complainant’s evidence which might cast doubt on the complainant’s credibility or reliability.
Absence of evidence of police officers
[48] Magistrates Court Act, 1991 (SA) s 42(4).
I turn to the complaint the Magistrate declined to hear evidence from certain police officers. More than one police officer was mentioned at trial. It is necessary to consider them separately.
I deal first with the two officers who responded to the original complaint.[49] The appellant submitted two officers came to his house on the day of the alleged incident, those officers having been at the home of the complainant. During the hearing of the appeal, the appellant said the following exchange occurred between him and one of the two police officers:[50]
Q      The guy reckons you assaulted him
A      No I’ve been home
Q      Well somebody tipped his hat off his head
A      Well I don’t know anything about that
[49] Appeal Transcript, 19 July 2022, p. 8.
[50] Appeal Transcript, 22 June 2022, p. 27.
There was no error in the Magistrate’s approach to this issue. Contrary to the appellant’s ground of appeal as drafted, the Magistrate made no decision about whether either of these two officers should be called. The complaint with respect to these two officers must be dismissed.
I turn then to the other police officer who was mentioned, but not called, at trial. During the trial, a police officer was mentioned by name, Constable Ongarato. The complainant gave evidence the day after the alleged incident, a police officer took a photograph of an injury on his nose.[51] There is no dispute the police officer was Constable Ongarato. At the end of cross examination, the following exchange occurred:[52]
[51] MCWHY-20-997 Trial transcript 3 June 2021 p. 27.
[52] Ibid p. 28.
Appellant:   ... Can we call Constable Ongarato please.
Prosecutor:The evidence of the police officer I don’t believe is relevant. That police officer simply took the statement of the victim.
Appellant:   Mr Jacobs received a photograph of this injury.
Prosecutor: The photographs are not part of the prosecution case.
Magistrate: If there’s a photograph, that should be produced.
Prosecutor: There are none to tender, so it’s not.
Magistrate: Sorry.
Prosecutor: There are none to tender hence why it’s not part of the prosecution –
Magistrate: Is there a photo though that can be disclosed?
Prosecutor: Not, not that I’m aware of, not on file certainly.
Magistrate: Alright so there’s no photograph produced.
Appellant:   Okay your Honour, well I’ve got no more questions then.
Contrary to the appellant’s ground of appeal, the Magistrate did not decline to call Constable Ongarato. It follows the Magistrate made no error in the way asserted by the appellant. Nonetheless, I will not dismiss this complaint on that basis. Given the way the argument developed during the appeal, I will deal with this ground by considering whether an irregularity occurred at trial as a result of Constable Ongarato not being called, the appellant having made that request.[53]
[53] Rule 104V(2) of the Supreme Court Criminal Rules 2014 (SA) provides:
(2)The Court may, if it considers that it is in the interests of justice to do so, determine an appeal on the merits notwithstanding a failure of a party to raise or state properly a ground of appeal or alternative contention in a notice of appeal, notice of cross appeal or a notice of alternative contention.
On the hearing of the appeal, the respondent conceded an ‘irregularity might have occurred due to a lack of disclosure of the evidence’[54] of Constable Ongarato. I will proceed on the basis the concession was appropriate, but I prefer to characterise the irregularity as the failure to call Constable Ongarato, the appellant having requested he be called after certain evidence about Constable Ongarto had been given by the complainant. That evidence was Constable Ongarato took a photograph of the injury caused in the alleged assault. The tenor of the appellant’s cross-examination of the complainant at trial was there might have been no injury as the complainant sought no medical treatment.[55] On the evidence of the complainant, Constable Ongarato would have been able to give evidence of at least the following matters relevant to the credibility of the prosecution’s only witness to the alleged assault: whether the complainant had an injury; whether any photograph was taken; and if so, what the photograph depicted.
[54] Appeal Transcript, 22 June 2022, p. 38.
[55] MCWHY-20-997 Trial Transcript, 3 June 2021, p. 27.
During the hearing of the appeal, the respondent sought to remedy the irregularity by tendering an affidavit from Constable Ongarato prepared after the trial and for the appeal. The appellant opposed Constable Ongarato’s affidavit being considered by me without him being cross-examined. Section 42(4) of the Magistrates Court Act 1991 (SA)[56] permits the Court to receive fresh evidence if the interests of justice so require and r 104V(2) of the Supreme Court Criminal Rules 2014 (SA)[57] permits the Court to hear further evidence in its discretion. However, during the initial hearing of the appeal the respondent did not seek to present Constable Ongarato to give evidence. The Court later raised that matter with the parties and the respondent thereafter made an application to call Constable Ongarato. That application was not opposed by the appellant. In the circumstances, I was satisfied it was appropriate to receive the affidavit of Constable Ongarato and for him to give evidence on the appeal. That then took place.
The evidence of Constable Ongarato
[56] Magistrates Court Act 1991 (SA) s 42(4).
[57] Supreme Court Criminal Rules 2014 (SA) s 104V(2).
There is no dispute Constable Ongarato attended on the complainant at his home the day after the alleged assault. His evidence was he saw an injury to the ‘bridge’ of the complainant’s nose, ‘maybe off to one side a little bit’.[58] He took at least one photograph, but it was not produced because of a ‘technical issue’ which had something to do with the process of downloading the image from the phone on which the image had been captured.[59]
[58] Appeal Transcript, 19 July 2022, p. 10.
[59] Ibid pp. 10-11.
In submissions, the appellant did not concede Constable Ongarato had given reliable evidence but also submitted he had not been involved in ‘intentional deceits’. This is not to suggest the appellant conceded at trial, or on appeal, there had been an assault, or that, if any injury was seen, it had been caused in any assault. The appellant also submitted that had he been called at trial, the evidence of Constable Ongarato ‘would have played out completely differently’.
As Constable Ongarato gave some oral evidence, I was able to assess him as a witness. He gave his evidence in straightforward way. There was nothing in his demeanour which caused me to doubt him. I am satisfied he was honest. Notwithstanding the passage of time which passed between him meeting the complainant and being asked to provide an affidavit and give evidence, I am satisfied his account of seeing an injury to the nose of the complainant was reliable. His evidence does not undermine the evidence of the complainant in any relevant respect. Had Constable Ongarato been called at trial, there is no reason to consider the result might have been the different. The evidence of Constable Ongarato would not have assisted the appellant. At trial, there were two issues. First, had there been an assault. Second, if there had been an assault, whether the appellant was responsible. The evidence of Constable Ongarato offered some limited support for the first issue. That same evidence shed no light on the second issue.
The complaint with respect to Constable Ongarato must be dismissed.
Orders
I grant an extension of time but dismiss the appeal against the conviction of Aggravated Assault. The guilty verdict of the Magistrate is confirmed.