Brook v Police

[2020] SASC 131

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

BROOK v POLICE

[2020] SASC 131

Judgment of The Honourable Justice Bleby

16 July 2020

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - OTHER PARTICULAR CASES

CRIMINAL LAW - EVIDENCE - CREDIBILITY - EVIDENCE IN CONTRADICTION

COURTS AND JUDGES - COURTS - OTHER MATTERS - AMICUS CURIAE

CRIMINAL LAW - EVIDENCE - HEARSAY - PARTICULAR MATTERS - OTHER STATEMENTS

MAGISTRATES - COMMENCEMENT OF PROCEEDINGS - DUPLICITY, AMBIGUITY AND UNCERTAINTY - PARTICULAR CASES - OTHER CASES

COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY

This is an appeal against conviction imposed by a Magistrate.

The appellant was charged with aggravated assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA), in respect of an incident on 26 December 2018. The complainant lived in a caravan on a property owned by his mother. His mother and the appellant were domestic partners.

On the prosecution case, police attended at the property in relation to an allegation of theft against the complainant. The complainant’s evidence was that his mother told him it was not safe for him to be there and that he should go to his father’s house. He said he did not want to go. The defence case was that the complainant's mother had told him to leave. The complainant's evidence was that approximately an hour later, following a verbal exchange between the appellant and the complainant in the caravan, the appellant grabbed the complainant by the throat, pushed him against a microwave and turned him around. The complainant then fell towards the open door of the caravan. The complainant gave evidence that the appellant then straddled the complainant and started punching him.

The appellant, in his record of interview, said that following the appellant grabbing the complainant by the throat, the complainant hit the appellant in the back of the head, that they fell out of the door and that punches were exchanged. The complainant’s mother’s evidence was also that the complainant had hit the appellant two or three times in the head. The appellant relied on the defences on removing a trespasser and self-defence.

The appellant was not legally represented for the beginning part of the trial. He requested an adjournment which was rejected by the Magistrate. The barrister who was later briefed as counsel for the appellant at trial then made an application to appear as amicus curiae. The Magistrate refused the application on the basis that he would not allow ‘amicus to assist as de facto counsel in a trial’. The Magistrate commenced the trial, heard evidence-in-chief, then adjourned for counsel to cross-examine the complainant at a later date.

Held, allowing the appeal on Grounds 2.1 and 8, and dismissing the appeal on Grounds 1, 2.3, 4, 5, 6:

1. The Appellant’s conviction is quashed.

2. The matter is remitted for retrial before a different Magistrate.

As to Ground 4:

3. The interests of the administration of justice overwhelmingly favoured giving leave for counsel to appear as amicus curiae in circumstances where counsel had only made the application to help the appellant through the evidence-in-chief and make appropriate objections if necessary, and when the trial was to be adjourned in any event. However, the Magistrate’s error in failing to allow counsel to appear as amicus did not cause a miscarriage of justice.

As to Ground 6:

4. The course the Magistrate took in relation to the trial does not firmly establish any substantial ground for a reasonable apprehension of bias. This conclusion is not altered by the Magistrate having referred to the complainant as the ‘victim’.

As to Ground 5:

5. The charge was not bad for duplicity. The prosecution case was one of a single, continuous application of force. Nevertheless, it would have been open for the Magistrate to find that the actus reus of the offence was made out in respect of the grabbing of the throat, but that self-defence was established in respect of the subsequent punching episode. It would also have been open to the Magistrate to find that the defence of removing a trespasser was made out in respect of the first part of the continuous application of force, had it ended there, but that the escalation to the punching episode moved that (continuous) application of force beyond the bounds of reasonableness.

As to Ground 2.1:

6. The Magistrate failed to consider the defence that the appellant was acting for a defensive purpose, namely, removal of a trespasser.

As to Grounds 1, 2.3 and 7:

7. On the complaint that the verdict was unsafe and unsatisfactory, there were reasons to be cautious of the complainant’s evidence. However, the appellant had admitted that he was the first to apply force by grabbing the complainant to the throat. With respect to the allegations of subsequent punching, it is not possible, absent seeing and hearing the evidence, to make findings as to whether the complainant did hit the appellant on the head, or the precise events of the punching.

As to Ground 8:

8. The Magistrate erred by failing to consider matters raised by the appellant that were relevant to assessing, at the very least, the reliability of the Complainant.

9. The Magistrate’s conclusions that the Complainant’s mother’s version of what had occurred was ‘a manufactured version, tailored to answer the prosecution case’ and that she had ‘embarked on a blatant attempt to muddy the waters’, depended on a characterisation of her evidence that was factually wrong.

Criminal Law Consolidation Act 1935 (SA) ss 5AA, 15A, 20(3); Criminal Procedure Act 1921 (SA) s 29; District Court Act 1973 (NSW) s 43(1); Magistrates Court Act 1991 (SA) s 42; Workers Rehabilitation and Compensation Act 1986 (SA), referred to.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Walker v Eves (1976) 13 SASR 249; Wellington v Police (2009) 105 SASR 215, applied.
Gamage v Minister for Immigration and Citizenship [2009] FCA at 1373, distinguished.
AK v Western Australia (2008) 232 CLR 438; Ardalich v Police [2007] SASC 196; Bromley v The Queen (1986) 161 CLR 315; Cheung v The Queen (2001) 209 CLR 1; Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; Damjanovic v Maley (2002) 55 NSWLR 149; Director of Public Prosecutions v Merriman [1973] AC 584; DL v The Queen (2018) 92 ALJR 636; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Gamage v Minister for Immigration and Citizenship [2009] FCA at 1373; Haskett v Police [2005] SASC 174; House v The King (1936) 55 CLR 499; Jago v District Court of NSW (1989) 168 CLR 23; JGS v The Queen [2020] SASCFC 48; Longman v The Queen (1989) 168 CLR 79; Police v Brook, Bradley John (Magistrates Court of South Australia, Magistrate Chin, 13 March 2020); R v Doogan; Ex parte Lucas-Smith and Others (2005) 193 FLR 239; R v Sinclair and Dinh (1997) 191 LSJS 53; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Stratis v Police [1998] SASC 6886; Walker v Eves (1976) 13 SASR 249; Walsh v Tattersall (1996) 188 CLR 77; Weinel v Fedcheshen (1995) 65 SASR 156; Wellington v Police (2009) 105 SASR 215; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, discussed.
Bell v Deputy Coroner of South Australia [2020] SASC 59; Bull v the Queen (2000) 201 CLR 443; Devries v Australian National Railways Commission (1993) 177 CLR 472; Douglass v The Queen (2012) 86 ALJR 1086; Driscoll v R (1977) 137 CLR 517 ; Fox v Percy (2003) 214 CLR 118; Illert v Northern Adelaide Local Health Network Inc (Modbury Hospital) [2016] SASC 186; Johnson v Johnson (2000) 201 CLR 488; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Murray v The Queen (2002) 211 CLR 193; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; R v Y, K [2015] SASCFC 94; Re LRJ; Ex parte CJL (1986) 161 CLR 342; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33; Subramanium v Public Prosecutor [1956] 1 WLR 965; Taylor v Hayes (1990) 53 SASR 282; Walton v The Queen (1989) 166 CLR 283; Webb v The Queen; Hay v The Queen (1994) 181 CLR 41, considered.

BROOK v POLICE
[2020] SASC 131

Magistrates Appeal:         Criminal

1. BLEBY J:             This is an appeal against conviction pursuant to s 42 of the Magistrates Court Act 1991 (SA). The appellant was tried before a Magistrate on a charge of aggravated assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The alleged circumstance of aggravation was that the appellant committed the offence knowing that the victim was a child who normally resides with him.[1]

   [1]    Criminal Law Consolidation Act 1935 (SA) ss 5AA(1)(g); (4a)(g).

2. The charge related to an incident on 26 December 2018, at a property at Parafield Gardens. The property was owned by the complainant’s mother, Carolyn Hounsell. The appellant resided at the property with Ms Hounsell. They were domestic partners.  The complainant, Connor, who was then 15 years old, was also living at the property in a caravan parked at the side of the house. Ms Hounsell had purchased the caravan for Connor’s use.

3. Also living at the house was Connor’s sister who was 14 years old and the appellant’s daughter, who was younger. Connor and his sister are the children of Ms Hounsell and Mr Dennis Ross.

4. The prosecution case was that on 26 December 2018, police had visited the house at Parafield Gardens to speak with Connor about an allegation of theft that Mr Ross had made against Connor. The allegation was to the effect that Connor had stolen as much as $2,500 from Mr Ross. Following this visit, Ms Hounsell spoke to both the appellant and to Connor. The appellant then confronted Connor at the caravan. There was a verbal exchange which led to the appellant assaulting Connor by grabbing him by the throat, throwing him first against a microwave opposite the door and then twisting him around and throwing him towards the open door of the caravan. Connor landed on his back and the appellant then punched him multiple times to the head and face.

5. The prosecution called Connor and two police officers as witnesses. Also in evidence were photographs of Connor taken after the incident, a statement of agreed facts, a recording and transcript of the appellant’s record of interview and statements of other police officers.

   The evidence of Connor

6. Connor gave evidence to the effect that during the day, the appellant had come to get him and said, ‘The police are here to talk to you’. He then spoke with the police out the back about his father’s accusation of theft as the appellant waited inside the house. Connor told the police that he had had nothing to do with it and that they were welcome to search the caravan. The police had a look around and said that they might contact him later down the track.[2]

   [2]    T 9.10-10.3.

7. Connor then gave evidence that as the police left, the appellant came back out and spoke to him, saying words to the effect that he wanted him to be the ‘gray man’ and that he didn’t want Connor to be seen in the house ‘and stuff like that’.[3]

   [3]    T 10.30-34.

8. He said that he then went back to his caravan and locked the door. He sent a message to his mum saying that he felt unsafe. His mum replied that she knew that would happen and that it would not be safe for him to be in the house at the time.[4]

   [4]    T 11.35-12.2.

9. At this point, the Magistrate interrupted the examination-in-chief, to warn Connor against giving hearsay evidence. His Honour said:[5]

   You can tell us what you heard as far as you can remember, but I do not want you to say what other people say, do you understand.

   [5]    T 12.6-8.

10. The Magistrate went on to say that Connor should only say what he heard exactly. In response to that, Connor answered:[6]

    My mum said, ‘You are not safe there’ and that it would be safer at my father’s house. She would be home in 40 minutes to talk to me and yes, that’s about it, she came home, spoke to me, saying that I needed to go to my fathers, it’s not safe for me here …

    [6]    T 12.15-19.

11. The examination-in-chief continued and the police prosecutor then in recapping, said:[7]

    QI’ve understood that your mum’s - once she’s home, she’s then come to speak to you.

    AYes, she spoke to me about – knocking on the caravan door and she said it was her and I unlocked it and come in and she’s like, ‘It’s not safe for you here, you go to your father’s house. Grab you stuff, pack up and go’ and me saying, ‘I don’t want to go, me and dad have just had an argument and the police came by and all this, because me and my dad aren’t on good terms, so I moved out’ …

    [7]    T 13.8-17.

12. It is apparent from this evidence that notwithstanding the Magistrate’s original warning, Connor continued to give hearsay evidence in so far as these exchanges went to the truth of what his mother was telling him about it not being safe for him to be at the house.

13. Connor said that after his mother left the caravan, he locked the door and lay on his bed.  About 20 minutes later he heard the sliding door at the back of the house open. He heard the appellant yelling. The appellant then started slamming on the caravan door, telling him to unlock it. He unlocked the door and the appellant asked why he was not going to his dad’s. Connor said that he did not want to go. The appellant then grabbed him by the throat and pushed him against the microwave.[8]

    [8]    T 15.3-13.

14. Connor said that the yelling prior to him opening the door was very aggressive. He said that the appellant had grabbed him by the throat ‘Pretty hard, because it left a red mark after’, which was still there 30 minutes after it happened.[9] He said to the appellant, ‘Why are you choking me?’[10]

    [9]    T 20.25-29.

    [10] T 20.36-37.

15. Connor’s evidence-in-chief was that the appellant had grabbed him by the throat with one hand[11] and pushed him into the microwave.[12] He said he grabbed the appellant’s hand with his hand trying to move it and that the grip got tighter so he was scared and let go.[13] He said that the appellant’s demeanour was scary, ‘like he was intimidating, trying to intimidate me’.[14]

    [11] T 21.2.

    [12] T 20.15.

    [13] T 22.3-6.

    [14] T 22.16-17.

16. Connor said that he fell back and tried to catch himself. He fell through the door but managed to catch himself before he hit his head on the ground. The appellant then stretched on top of him, straddled him by his legs and started punching him. He said that the appellant was on him for probably 15 to 30 seconds and that his mum, his sister and the appellant’s daughter were there. His mum and his sister were screaming and crying, telling the appellant to get off him and that both were in tears.[15]

    [15] T 24.3-23.

17. He said that it felt like he was punched quite a lot of times, ‘probably about 10 times’.[16] He said that he felt he was punched pretty hard, that he got a mild concussion and his nose was fractured.  He felt the top row of his teeth go into his gums a bit. He started bleeding from his nose.[17]

    [16] T 26.2.

    [17] T 26.14-20.

18. Connor said that his mother managed to push the appellant back.  He slid out from underneath him and the appellant walked off. He went back into the caravan, said that he was all right, and that he was going to his dad’s. He got his phone and his dog and just started walking to his dad’s.[18] He felt he was about to pass out walking across the oval to his dad’s place.

    [18] T 27.4-13.

19. His evidence was that before he walked off to his dad’s, his mum had said ‘You’d better go to your dad’s’.[19] His mum stayed for a minute to talk to him, hugging him before he left.[20] He said that he took a couple of photos of himself showing blood coming out of his nose and that the police took a photo from his phone.[21] The photos were at that stage marked for identification as MFI P1. His evidence was that they depicted his face about 30 minutes after the incident.

    [19] T 27.25-26.

    [20] T 27.34.

    [21] T 28.17-21.

20. In cross-examination, Connor accepted that he did not have a good relationship with his dad.[22]  He confirmed that his father did not like him smoking cannabis and that there were arguments about him not attending school and being late for school.[23]  He accepted that he resented his dad telling him what to do ‘Over certain things’ and that he also resented his mum doing so.  He accepted that he was very angry at the time with his teachers and his parents telling him what to do.[24]

    [22] T 55.11.

    [23] T 56.22-27.

    [24] T 57.27-58.8.

21. Connor further accepted that his anger with his father was such that on occasion, he had hit and punched holes in walls in his bedroom,[25] but said that he had learned to control his bad temper better.[26] He also accepted that he had on occasion become so angry with his dad, who was wheelchair bound, that his dad had had to call the police on him.[27] He accepted that he had been referred to the Child and Adolescent Mental Health Services and that he had been diagnosed with oppositional defiant disorder (ODD).[28] He was prescribed medication but chose to stop taking it.[29]

    [25] T 59.33-36.

    [26] T 60.10-12.

    [27] T 60.28-38.

    [28] T 61.18-37.

    [29] T 62.29-63.14.

22. He was cross-examined on incidents of temper tantrums, violent episodes and an occasion of disabling his father’s wheelchair.  He admitted the latter.[30] He did not admit several allegations of past conduct that were put to him.[31] He was also cross‑examined about an incident on 22 November 2018, when he had assaulted one of his peers. He received a formal caution from the police following a family conference.[32]

    [30] T 64.24.

    [31] T 64.36-65.21.

    [32] T 66.13-19.

23. Connor admitted that he had previously stolen money from his father.[33] He repeated his denial that he had done so on this occasion and confirmed that he was angry about it.[34]

    [33] T 70.10.

    [34] T 70.37-71.3.

24. The cross-examiner put to Connor that the appellant had said to him, ‘This is the second time the police have turned up looking for you.  We’re fed up and we’ve had it’.  Rather than answering the question, Connor asked the Magistrate for permission to explain ‘how this all went down first’.  The Magistrate invited him to explain.[35]

    [35] T 82.6-12.

25. Connor then gave an unrestrained explanation that was not directly responsive to the question.[36]  This included him reiterating that his mother had said to him, ‘You’re not safe there.  You need to go to your dad’s’.[37] Counsel ultimately interrupted the answer on the basis that this was not a fair response to the question. He did not take issue with the hearsay content of the evidence as to what his mother had said.  He asked the question again and Connor agreed that the appellant had said what was put.[38]

    [36] T 82.13-34.

    [37] T 82.22-23.

    [38] T 83.9-13.

26. Connor then reiterated his evidence about his mother having said that it was not safe for him to be there, in response to a proposition that the appellant and his mother wanted him to leave the premises.[39]  Counsel did not take issue with that answer.  Connor later said, ‘My mum asked me – suggested to me – she didn’t say I had to go.  She said ‘You should go. It’s unsafe’’.[40]

    [39] T 84.1-3.

    [40] T 109.23-25.

27. Counsel cross-examined Connor as to why he had not said in his witness statement that his mother had said that he was unsafe.[41] This cross‑examination topic was revisited shortly further on.[42]  Connor could not give an explanation as to why it was not in the statement. He said that he had had a concussion.[43]  He accepted that maybe he had not said it to the police officer but maintained that, in any event, it did happen.[44]

    [41] T 87.9; 89.33-91.13.

    [42] T 89.22-91.14.

    [43] T 90.9.

    [44] T 90.13-14.

1. When the cross-examination moved to the involvement of the appellant, that is, when the appellant went out to the caravan, Connor maintained that he had locked the caravan door, ‘because of what he had said to me inside.  Because I was scared’.[45]  He elaborated on why it was that the appellant’s words inside the house had scared him.[46]

   [45] T 91.24-25.

   [46] T 92.1-9.

2. Connor also accepted that in his witness statement he had said that the appellant had grabbed him by the throat with both hands, whereas in his evidence‑in‑chief and in his cross‑examination, he had said that the appellant had grabbed him with one hand.[47]

   [47] T 87.35-88.18; 94.23-35.

3. The exchange with respect to Connor’s evidence about the appellant wanting him to be the ‘gray man’ was as follows:[48]

   [48] T 92.10-35.

   Q.In your statement that you gave on that day an hour later, where's the reference to the gray man.

   A.The reference to the gray man a full paragraph - it says 'I was going to call the police but I didn't - but I didn't want -'

   Q.    Okay.

   A.But I knew something was going to happen back when he made these comments about me being a gray man 'cause he doesn't want me around.

   Q.When he said that, did you think Bradley - did Bradley make it clear that he didn't want you at the house anymore.

   A.The - the way he spoke to me he was pretty firm with it and I knew he wasn't messing around.  He was pretty serious by what he meant and -

   Q.    But you argued the toss with him, didn't you.

   A.    What do you mean.

   Q.    You said I’m not leaving.

   A.I was scared.  I didn't - I couldn't go to my dad’s because what we were arguing ... - I didn't know what to do.  I was scared and I didn't know where to go. 

   XXN

   Q.    You said 'I'm not leaving.  I'm not leaving' or words that effect, didn't you.

   A.    I said I didn't want to go.  I didn't say I'm not leaving.

4. Counsel cross-examined on whether Connor had indeed locked the caravan door, as that evidence did not appear in his statement.  Part of Connor’s answer to this was that he was scared.[49]  He said that when he signed his statement there were aspects that he simply could not remember at the time.[50]

   [49] T 93.35.

   [50] T 94.12-14.

5. Connor was also cross-examined as to the failure to include in his witness statement his evidence that the appellant had, after grabbing him by the throat, pushed him into the microwave.[51] Each of these matters was put to Connor in support of a global proposition that was then put to him that he was massaging the facts and putting his gloss on it.[52]

   [51] T 95.8-21.

   [52] T 96.20-21.

6. Counsel also challenged Connor’s statement that the appellant had punched him 10 to 15 times in the face.  This cross-examination proceeded by way of comparison with the photographs, which show some mild bruising and injuries to the face.  The point of this cross-examination was to put to Connor that the injuries depicted in the photographs were in no way consistent with the ferocity of the assault that he had described.[53] Counsel asked why, in his evidence‑in‑chief, Connor had reduced the number of times that the appellant had hit him from 15 in his statement to ‘probably 10’.[54] Connor’s answer was ‘‘Cause 15 seemed an extreme number ‘cause I lost count when he was hitting me and 10 had been put’.[55] He was cross‑examined rigorously on this.

   [53] T 96.35-101.27.

   [54] T 105.3-5.

   [55] T 105.6-7.

7. Connor also gave hearsay evidence as to the doctors having said that he had a ‘mild concussion and maybe a fractured nose’.[56]  No medical evidence was led as to his injuries.  He was then cross-examined on his evidence about his teeth being pushed into his gums.  It was put to him that the doctors at the hospital had told him that his dentition, that is the arrangement of his teeth, was completely intact.[57]  He maintained that all that he had been told was that he might have a fractured nose and a mild concussion.[58]

   [56] T 106.33-35.

   [57] T 107.37-108.1.

   [58] T 108.22-25.

8. With respect to the incident itself, it was put to Connor that the appellant never pushed him into the microwave. Rather, after having originally grabbed him by the throat, the appellant tried to grab him by the ear saying, ‘Let’s do it the old way’.[59]  It was put that Connor resisted, he struggled and then he struck the appellant hard to the back of the head and the appellant attempted to defend himself.  Connor denied that account.  It was put to him that his mother was there watching.  He said, ‘Mum was not there watching until I was on the ground outside the caravan’.[60]

   [59] T 112.26.

   [60] T 112.24-34.

   The record of interview

9. The appellant did not give evidence.  However, the prosecution tendered the record of interview with the appellant that took place in the afternoon of the day of the incident. That record of interview contained admissions and in particular, the following exchange:[61]

   [61] Record of Interview at [63]-[76].

   HUMPHREYS (P/C)    …

   So Carolyn’s gone onto Connor’s.

   BROOKRoom.

   HUMPHREYS (P/C)    caravan.

   Yep.

   BROOKAsking him “what the hell’s going on, have you got the money”, searched his room.   So then she’s come in basically talking “yeah I can’t find that stuff” and we had a word that he’s got to go back to his Dad’s cos causing problems here with

   HUMPHREYS (P/C)    Yep.

   BROOKus and we can’t trust him you know and, and it’s upsetting the girls, I can’t have have [sic] the Cops rocking up every time the Dad sees something that wrong ‘oh go get the Cops, go do this’ – he uses you’s like, if he can’t win you’re the Mother

   HUMPHREYS (P/C)    Right.

   BROOKand goes to Mum “I’m, I’m not winning”.

   So she goes out there and basically says “you need,” I said “you need to go talk to your Father instead of the Cops coming here” and they need to talk to each other.

   She went out to tell him that, he refused to talk to his Father as he’s done a few times, he basically puts his foot down like that at school and stuff and like that he’s a brat right cos he knows that you can’t make him you know and so then he’s ah basically, Mum said “well you goes talk to your Father or you leave”.

   And he goes “nothing could make me stay here” – that’s what Carolyn came back and told me.

   HUMPHREYS (P/C)    Okay.

   BROOKRight?

   And he wasn’t going to talk to his Father.

   So I thought ‘well he has to talk to his Father’ so I went out there and said “Connor get your arse out you’re going to talk to your Father, it’s between you, I’m not having the Cops rock up at my house in front of the two girls”.

   He basically gobbed off, we both gobbed off at each other I can’t remember exactly what we said and I grabbed him by the throat.

   And he goes “why are you choking me”?

   And I said “because you’re not doing what you’re told, you keep dissing your Mother and I’ve had enough”.

   And he goes “why are you choking me”?

   I said “alright we’ll do it this way, the old way,” so I grabbed him by the ear and went to lead him out the door and by then the Mum’s at that door.

   She said “Brad” and then grabbed me.

   I said “I’m trying to get him to go cos he’s not listening to you” and as I, she turned me around he started banging me on the back of the head like flat-out as I’m trying to get out the door and “that’s it you hit me in the back of the head”, I turned around as my typical “you hit me in the back of the head”.

   And then I grabbed him and then we both fell out the door cos Carolyn still had me, we, I grabbed him, we both fell like halfway out of the door, he started swinging a little bit and then I just ‘bang, bang, bang’ on the side of his face – that side and then I banged him in the nose.

   HUMPHREYS (P/C)    Mm.

   BROOKAnd then we came out the door, I went that way – he went that way -.

   Carolyn was in the middle all upset and then he’s patting his Mum, going “Mum it’s alright, it’s alright”.

   And I said “now it’s alright”.

   HUMPHREYS (P/C)    Yep.

   BROOKAnd then I went inside, I sat next to the … well Christine went inside and I sat there with my daughter and I just sat there.

   And then Connor said “I’m going to my Dad’s” and off he went.

   The evidence of Carolyn Hounsell

10. Ms Hounsell gave evidence that once she had got back from Nuriootpa where she had been working, she went to speak with Connor in the caravan. She said she went out to see him at least three times and on each occasion the caravan was unlocked.  She said that she told him that he needed to go to talk with his dad and find a solution.[62]  Her evidence was then as follows:[63]

    [62] T 189.10-190.3.

    [63] T 190.5-36.

    Q.At any stage during the course of these three conversations with your son, Connor Ross, did you tell him he needed to leave your premises.

    A.Yes, I did.

    Q.How many times did you tell him that.

    A.Several.  Two or three.

    Q.To the best of your memory, what did you say to Connor.

    A.I told Connor that he needed to leave and go and talk to his dad.

    Q.Were you emphatic about that.

    A.Yes, I was.

    Q.On 26 December 2018, following the allegation of theft, did you want Connor off of your premises.

    A.He needed to leave to go and talk to his dad that day.

    HIS HONOUR    

    Q.Did you make that clear to him.

    AA.    I made it very clear – yes, -

    QQ.    As far as you are aware of.

    AA.    Yes, yes.

    XN

    Q.Let me ask the question.  Did you make that 100% clear to Connor Ross.

    A.Yes, I did.

    Q.Could there have been any issue of him not understanding it as far as you're concerned.

    A.No.

    Q.What was Connor Ross' response.

    A.'I'm not going.'

    Q.So he refused to leave.

    A.He refused to leave.

    Q.Do you own that house.

    A.Yes, I do.

11. Ms Hounsell said that she then spoke with the appellant and told him that Connor had responded emphatically that he was not going to see his dad. The appellant then went out to see Connor, on her understanding, to try to get him to leave.[64]  She said she then heard yelling from both of them.  She heard Connor saying, ‘I’m not fucking going’[65] and that she heard the appellant saying that Connor needed to go and sort this out with his dad and that he had to leave.[66]

    [64] T 191.21-22.

    [65] T 191.32-33.

    [66] T 191.37-192.2.

12. At this stage, she was in the kitchen area just inside the back door of the house.  She went out to the caravan and saw the appellant’s back to her just inside the door.[67]  She said that she stepped up into the caravan.[68]  The appellant was still saying to Connor that he had to leave to go and talk to his dad, and that Connor was saying, ‘I’m not fucking going’.[69]

    [67] T 192.19-24.

    [68] T 192.30.

    [69] T 192.35-37.

13. When she stepped into the caravan she saw that the appellant had his hand on Connor’s upper chest or throat.[70]  She could not recall which hand it was but her evidence was to the effect that it was a single hand.  She grabbed the appellant’s arm as she was trying to diffuse the situation and tried to take him out of the caravan. They were in the process of leaving when she saw Connor hit the appellant two or three times in the head.[71]

    [70] T 193.13-14.

    [71] T 193.1-2; T 193.35-37.

14. The appellant then grabbed Connor, they got into a scuffle and they both fell over. The girls were then standing outside the caravan door.[72]  Connor was throwing punches.  The appellant fell on top of Connor and hit Connor a couple of times and then they separated.[73]  Connor had a bit of blood underneath his nostrils on his top lip.  It was not a lot of blood.[74]

    [72] T 193.35-194.6.

    [73] T 194.16-19.

    [74] T 194.33-195.2.

15. Ms Hounsell also gave evidence that it was quite rare that Connor would take his medication.[75]  When he did not take his medication, he would be argumentative and defiant.[76]  She was then asked (in chief) whether she had ever said to Connor that he was in danger from the appellant. Her answer was, ‘Absolutely not’.[77]

    [75] T 196.1-2.

    [76] T 196.4-5.

    [77] T 196.11.

16. In cross-examination, Ms Hounsell accepted that Connor’s behaviours may have lessened a little but said that he was still unpredictable and that she was still frightened of him.[78]

    [78] T 205.21-30.

17. She was cross-examined about saying that she wanted Connor to leave.  She said that it was not a reference to wanting him to leave for good but that it was for him to leave ‘so he can go and talk to the – talk to his dad about the issue of the money and the fact of having police come and knock on my door’.[79]

    [79] T 211.28-31.

18. With respect to the incident, she accepted that she did not immediately follow the appellant outside the house.[80] She confirmed that when she got to the caravan she stepped into it and grabbed the appellant’s arm to try to get him out.[81]  She agreed that there was not much room inside the caravan.[82]

    [80] T214.31.

    [81] T 218.2-3.

    [82] T218.13.

19. While she said that the appellant was saying to Connor, ‘You need to go’,[83] and she had seen the appellant grab Connor by the upper chest or throat area, she accepted that she never had actually seen the appellant grab him in a way to physically remove him from the caravan.[84]  In cross-examination, she said that she grabbed the appellant’s elbow and said to come on and leave the caravan, and the appellant then said, ‘Okay’.[85]  The appellant had turned half-way, when she saw Connor hit the appellant in the back of the head.[86]

    [83] T 218.24.

    [84] T 219.12.

    [85] T 220.1-4.

    [86] T 220.17-19.

20. Ms Hounsell was cross-examined vigorously on the possibility of her having been inside the caravan, given the limited space.[87] The following exchange in cross-examination then occurred:[88]

    Q.I put it to you that there was no actual scuffle between Connor and Bradley.

    A.The situations you're suggesting to me are not correct.  I was there.  I saw what happened.  My answers will always be that.

    Q.I put it to you that Bradley did, in fact, grab Connor and throw him out towards the door.

    A.That's incorrect.  If what you're suggesting happened, I would have a completely different view of the situation and my relationship with Brad.

    Q.I put it to you that Connor landed on his back as a result of being thrown by Bradley.

    A.That's incorrect.

    [87] T 222.11-223.6.

    [88] T 223.25-37.

21. Ms Hounsell accepted that punches were thrown by the appellant against Connor following the first part of the incident.  She rejected that the appellant was kneeling on or around Connor’s legs, on the basis that the appellant could not get on his knees as he found that extremely difficult and painful because of his injuries.[89]  She denied that Connor was not able to punch the appellant.[90]

    [89] T 224.9-12.

    [90] T 224.19-21.

22. Before inviting re-examination, the Magistrate questioned Ms Hounsell.  His Honour asked whether Ms Hounsell heard Connor say the words, ‘Why are you choking me’. She said she did not hear that.[91] I observe that that is not necessarily inconsistent with either Connor’s evidence or the record of interview, as on those accounts those words were spoken at an earlier stage and quite possibly before Ms Hounsell had arrived at the caravan.

    [91] T 225.29-36.

23. The Magistrate then asked whether Ms Hounsell had heard the appellant say words to the effect, ‘Alright.  We’ll do it this way.  The old way’.  She said she did not recall that at all and that she thought she would remember if the appellant had said something like that.[92]  At this point, counsel for the appellant protested on the basis this was amounting to cross-examination.  The police prosecutor had not put that matter to Ms Hounsell.  The Magistrate told counsel to sit down and then asked Ms Hounsell whether she had seen the appellant grabbing Connor by his ear.  Her answer was that she did not see that.[93]

    [92] T 226.20-23.

    [93] T 227.8-10.

    The Magistrate’s findings

24. The Magistrate found the appellant ‘guilty as charged’ on the basis of the following facts which he found to have been established beyond reasonable doubt:[94]

    1.On Wednesday 26 December 2018, Connor then aged 15 years old, was living at the house together with the Defendant, Hounsell, K and C.

    2.That following a verbal exchange, the Defendant had assaulted Connor by grabbing Connor to the neck with both hands, and punching Connor several times to the face and head areas.

    3.At all material times, the Defendant knew that Connor, a child was residing with him at the house.

    [94] Police v Brook, Bradley John (Magistrates Court of South Australia, Magistrate Chin, 13 March 2020) at 10, [43].

    The appeal

25. The Second Notice of Appeal contains a series of amended grounds that are more usefully addressed out of order.[95]  I will address first the grounds that stand apart from the Magistrate’s findings of credibility, in their logical order, and then move to the grounds that relate to those findings.

    [95] Ground 3 is deleted entirely.

    Ground 4

26. Ground 4 complains that the Magistrate erred in not allowing a legal representative to appear amicus curiae to assist the appellant with objections.

27. At the commencement of the trial, the appellant applied for the trial to be vacated, as he had not been able to provide his legal representatives with the necessary funds.  The Magistrate refused the application and ordered the trial to proceed.  He refused leave for the legal representative to withdraw.  The matter was adjourned for a short period. When it resumed, Mr Aitken of counsel announced his appearance and requested an adjournment. That application was also refused.

28. After what appears to have been a further short adjournment for the appellant’s solicitor to take instructions, she indicated to the Court that her instructions had been terminated. She was given leave to withdraw. The Magistrate then asked whether the appellant intended to engage another lawyer to represent him. The appellant indicated that he did.  He requested two weeks to engage another lawyer and said that he would like Mr Aitken to be his barrister.

29. The Magistrate indicated that rather than taking that course, he would commence the trial, hear evidence-in-chief and then adjourn for counsel to cross‑examine the witnesses at a later date. The Magistrate read the charge to the appellant who asked whether he had to say anything without a lawyer. The Magistrate indicated that if he said nothing it would be taken to be a plea of not guilty.  The following exchange then occurred:[96]

    [96] T 2.33-3.15.

    Defendant:Because an incident happened but it’s not like it was said to have happened.

    Mr Aitken:        Your Honour, can I be heard amicus?

    His Honour:        Yes, Mr Aitken, you can.

    Mr Aitken:If your Honour proceeds this way, that’s your Honour’s ruling. Would you like me to sit here and help this man through evidence-in-chief and make the appropriate objections if I need to?

    His Honour:        No because you have already withdrawn.

    Mr Aitken:        I haven’t withdrawn, I was not engaged.

    His Honour:        Alright –

    Mr Aitken:I made an application that your Honour did not want to hear me on. I hadn’t finished my application with the greatest respect –

    His Honour:       I will not allow amicus to assist as de facto counsel in a trial. What I will hear will be the evidence-in-chief and then I will adjourn the trial to give Mr Brook an opportunity to engage counsel and I will also grant engaged counsel and properly briefed counsel the opportunity to cross-examine on the next occasion.

30. The appellant contends that the discretionary refusal by the Magistrate miscarried in a number of the senses described in House v The King.[97]

    [97] (1936) 55 CLR 499 at 505.

31. When it comes to exercising the discretion to grant permission to a person who is not a legal practitioner to appear as amicus curiae or as a McKenzie Friend, the ultimate guiding principle is the public interest in the attainment of justice and the ends of justice.[98] The New South Wales Court of Appeal considered the governing principles in Damjanovic v Maley.[99] That case concerned the application of s 43(1) of the District Court Act 1973 (NSW), which made express provision for a party to proceedings to appear by another person, by leave of the Court. That was in addition to the right to appear by a barrister or solicitor on the person’s own behalf.

    [98] Gamage v Minister for Immigration and Citizenship [2009] FCA 1373 at [13] (McKerracher J).

    [99] (2002) 55 NSWLR 149.

1. That statutory prescription in its breadth does not appear to be materially different from the inherent right of the Court, in regulating its own proceedings, to allow a person who is not a lawyer to conduct a case on behalf of a party where it is desirable to do so in the interests of the administration of justice.[100]

   [100] Damjanovic v Maley (2002) 55 NSWLR 149 at 154-155, [33]-[34] (Stein JA, Mason P and Sheller JA agreeing).

2. The principles that may be given weight in exercising the discretion to appoint a non-legally qualified person as amicus curiae are relevantly applicable to the Magistrates Court.  In Gamage v Minister for Immigration and Citizenship, the Federal Court highlighted the following considerations:[101]

   ·the complexity of the case;

   ·the genuine difficulties of the unrepresented parties;

   ·the unavailability of disciplinary measures and a duty to the Court by lay advocates;

   ·the protection of the client and the opponent; and

   ·the interests of justice.

   [101] Gamage v Minister for Immigration and Citizenship [2009] FCA 1373 at [12] (McKerracher J).

3. In the present case, not all of these considerations apply.  Mr Aitken is an experienced barrister.  Following the exchange set out above, Mr Aitken submitted that his being allowed to assist as amicus would assist, as objections needed to be made to leading questions ‘and matters such as that’.[102] The Magistrate replied that this was a court of summary jurisdiction and that Mr Aitken did not have leave.

   [102] T 4.30.

4. While not all considerations relevant to whether to grant leave to a person not legally qualified to appear as amicus are relevant where the application is made by an admitted legal practitioner, there is some overlap. The guiding principle remains the public interest in the attainment of justice.

5. The present situation was a little unusual in that the appellant had indicated that he had only just at the last minute secured funds sufficient to brief Mr Aitken and now needed time to do so.[103] Section 29 of the Criminal Procedure Act 1921 (SA) provides that a party to proceedings to which that Act applies may be represented by counsel. That does not of course provide an absolute right to representation by counsel or an entitlement in all circumstances to an adjournment to enable counsel to be briefed. Nevertheless, in Walker v Eves, Bray CJ said:[104]

   … I will say generally and without specific reference to this case that it is always unfortunate that a party to legal proceedings should become unrepresented before the court because of a refusal to grant an adjournment, still more when he is not even present in person, with the result that there is no one to put his case, and that, unless there is some reason to suspect subterfuge or deliberate and unjustifiable procrastination, the courts should lean towards granting adjournments which will enable a party's case to be put before it, preferably by counsel, when that can be done without injustice to the other side which cannot be remedied by the making of an appropriate order for costs. No considerations of the convenience of court or prosecution should be permitted to stand in the way of this.

   [103] T 3.7-1-320.

   [104] (1976) 13 SASR 249 at 252.

6. The Magistrate required the prosecution to open and to call Connor to give evidence-in-chief that same day, with the appellant necessarily not being represented. However, the Magistrate then adjourned the trial from 4 October 2019 to Wednesday 20 November 2019, on which date Mr Aitken appeared and, in due course, cross-examined Connor. The effect was that Connor gave evidence in chief while the appellant was unrepresented.

7. The only reason given by the Magistrate for refusing Mr Aitken leave to appear as amicus, was that he would not allow amicus to assist as de facto counsel in a trial. Mr Aitken had only made the application to help the appellant through the evidence-in-chief and make appropriate objections if necessary. In those circumstances, and when the trial was to be adjourned in any event, the interests of the administration of justice overwhelmingly favoured giving leave.

8. The reasons for caution in appointing a person not legally qualified to act as amicus were not present.  The only reason given for refusing permission does not reflect the basis upon which Mr Aitken sought leave. In any event, given the enduring obligation that Mr Aitken owes to the Court as an admitted legal practitioner, to the extent that he was proposing to undertake one part of the role of counsel, that could only have assisted in the administration of justice.

9. The Magistrate did not identify any principle that informed his discretion that properly spoke against granting the application. To the contrary, for the reasons given by Bray CJ in Walker v Eves, the administration of justice manifestly favoured either adjourning the whole of the trial to the adjourned date in any event or, given that there was a proposal before him that would provide some level of qualified assistance to the appellant in the course of the examination-in-chief, to accede to the application.

10. I am satisfied that the reason given by the Magistrate indicates that in declining the application, he acted upon a wrong principle within the meaning of House v The King.[105]

    [105] (1936) 55 CLR 499 at 505.

11. That does not necessarily mean that a miscarriage of justice has occurred. It is necessary to review the whole of the proceedings and the evidence.[106]  In Jago v District Court of NSW,[107] Deane J articulated when such a procedural error might be concluded to have given rise to a miscarriage of justice:[108]

    The central prescript of our criminal law is that no person shall be convicted of a crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law…What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.

    [106] Ardalich v Police [2007] SASC 196 at [23] (Gray J); Driscoll v R (1977) 137 CLR 517 at 526 (Barwick CJ).

    [107] (1989) 168 CLR 23.

    [108] Jago v District Court of NSW (1989) 168 CLR 23 at 56-57 (Deane J).

12. Justice Deane retreated from identifying a categorical list of occurrences that may affect the trial such that it could no longer be regarded as fair. It is a case by case analysis, one that Deane J recognised as having, unavoidably, a ‘large content of essentially intuitive judgment’.[109] As Gray J said in Ardalich v Police (Ardalich):[110]

    To determine whether a miscarriage has occurred, consideration must be given to the facts of the case, the background of an accused, the circumstances in which the accused came to be unrepresented and the nature and seriousness of the charge. There are circumstances in which a criminal trial will be relevantly fair notwithstanding that an accused is unrepresented.

    [109] Jago v District Court of NSW (1989) 168 CLR 23 at 57 (Deane J).

    [110] [2007] SASC 196 at [26].

13. Justice Gray considered a situation not dissimilar to the present, being where evidence had been led on the basis that cross-examination of the relevant witnesses would be allowed when defence counsel was available.  In holding that this caused no miscarriage of justice, he said:[111]

    … The calling of evidence without cross-examination being conducted at that time did not result in any unfairness or prejudice to the appellant.  The appellant had ample opportunity to cross-examine all prosecution witnesses.  No inadmissible evidence was admitted.

    [111] [2007] SASC 196 at [46].

14. In contrast, the appellant relied on the repeated evidence of Connor to the effect that his mother had said that he was not safe at the house.[112] As I have observed above, this evidence had a hearsay purpose if it was led for the truth of the proposition that Connor was not safe.

    [112] T 4.34-36, T 8.19-20; The appellant also pointed to a leading question that was not objected to, but did not pursue this with any force.

15. The hearsay aspect of this evidence was identified when the trial resumed on 20 November 2019 for the cross-examination of Connor.  It arose when Mr Aitken, who was now briefed for the defence, made an application that the Magistrate disqualify himself on the ground of apprehended bias. That complaint of bias also forms a ground of appeal, which I address below.

16. In the course of that application, Mr Aitken referred to the history leading up to his unsuccessful application to appear as amicus. He referred to the Magistrate having raised the issue of hearsay evidence, but then pointed to the fact that hearsay evidence as to what Ms Hounsell had said to Connor about it not being safe for him to be there continued to be given. Counsel made the submission in support of the bias application that the appellant, as an untrained individual, should have had the opportunity to have someone to assist him to make objections during examination‑in‑chief.

17. The Magistrate refused the application.  He did not refer to that submission. At this stage, there was no real indication of the purpose for which Connor’s evidence about Ms Hounsell’s words had been admitted.

18. The prosecution, in closing address, emphasised Connor’s evidence that he was scared of the appellant.[113] The prosecutor did not identify what use the Magistrate should make of Connor’s evidence of his mother’s words. By contrast, defence counsel made the following submission in his closing address:[114]

    Many aspects of Connor Ross’s evidence contained rank hearsay respectfully. The defence respectfully reminds the Court of this, of course as a matter of law, no weight can be accorded evidence affected also by this prosecutor’s closed or leading questions in the context of her examination-in-chief.  That evidence too should be ignored.

    [113] T 229.16-17.

    [114] T 239.3-9.

19. The Magistrate’s reasons deal with this evidence only briefly. In his assessment of Connor as a witness, his Honour said:[115]

    He maintained that on 26/12/2018, his mother had wanted him to leave the house because she informed it [sic] was not safe for him to remain after he informed her the Defendant had told him to be the “grey man”.  He agreed he could be asked anytime to leave, but on that day, he was scared and he had nowhere to go to.

    [115] Police v Brook, Bradley John (Magistrates Court of South Australia, Magistrate Chin, 13 March 2020) at 7, [33].

20. The Magistrate found that Connor had tried his best to tell the truth and tried to recall everything that happened.  He did not specifically address Ms Hounsell’s denial of having said this to Connor. However, he recorded her evidence that she did not want Connor to go back to live with his dad or to leave the house for good, but simply for him to go and talk to his dad about the money and the fact that the police had come to her house.[116]

    [116] Ibid at 9, [36].

21. The Magistrate resolved all inconsistencies between the evidence of Connor and Ms Hounsell in Connor’s favour. There is an implicit acceptance of Connor’s account of what his mother had said to him over her own account.  That does not assist in identifying the purpose to which the Magistrate then put that evidence.

22. The Magistrate linked Connor’s account of what his mother had said to him with Connor’s evidence that he was scared and felt that he had nowhere to go.  In my view, it is tolerably clear that the Magistrate used that evidence in part at least as an explanation for Connor’s evidence as to his state of mind.  If it was to be used for that purpose, it would explain his evidence (which was also disputed) that he had locked himself in the caravan after the exchange.[117]

    [117] See Subramanium v Public Prosecutor [1956] 1 WLR 965 at 970; Walton v The Queen (1989) 166 CLR 283, 300-302 (Wilson, Dawson and Toohey JJ); Bull v the Queen (2000) 201 CLR 443 at 478, [118] (McHugh, Gummow and Hayne JJ).

23. Another potential use of this evidence was to prove the fact of what Ms Hounsell had communicated to Connor, specifically, whether she had communicated to him a withdrawal of his licence to be on her property.  Whether Ms Hounsell was advising him to get out for his own safety, or whether she was withdrawing a licence for Connor to be on the property at all (albeit temporarily) was very much in issue.  A statement that he should leave because he was not safe would be unlikely to amount to operative words constituting such a withdrawal. This evidence thus tended to negate the defence that the appellant was acting for a defensive purpose, namely, removal of a trespasser.  That is a non-hearsay purpose.

24. In addition to these non-hearsay purposes, the evidence also had potential hearsay purposes.  First, it may have been relevant to the reasonableness of any force used to remove Connor, in that it would tend to show that the appellant was acting unreasonably aggressively from the outset. Second, to draw such an inference from the words spoken would also be relevant to negating the defence of self-defence. Both these purposes would rely on the truth of the assertion that Connor was not safe.

25. The Magistrate did not expressly distinguish between the uses to which he put this evidence. However, given his other findings, there is no basis for concluding that he used the evidence for the hearsay purpose of assessing the reasonableness of the force used in removing a trespasser.

26. The Magistrate’s reference to this evidence tends to place his consideration of it in the context of whether Ms Hounsell had withdrawn Connor’s licence,[118] rather than on the question of whether the appellant was the aggressor. While I am troubled by the lack of clarity in the reasons as to the use to which it was put, given that the potential hearsay use was prejudicial to the appellant, the evidence was admissible for this purpose.  Whether permission was expressed to have been withdrawn was critical to the defence of removing a trespasser.

    [118] Police v Brook, Bradley John (Magistrates Court of South Australia, Magistrate Chin) at 77, [33].

27. The Magistrate was alive to the impermissible use. His reasons tend to point to him having deployed it for a permissible use.

28. I am not satisfied that the error in failing to allow Mr Aitken to appear as amicus caused a miscarriage of justice.  It was open to counsel to be specific in his address as to the uses to which that evidence could not be put. Counsel understandably cross-examined Connor on whether the words were spoken at all: what was said comprised an important integer of the defence.

29. The evidence was admissible.  The potentially impermissible uses of the words spoken were capable of being guarded against following counsel’s participation in the trial.  Ground 4 is not established.

    Ground 6

30. The complaint that the Magistrate erred in refusing to disqualify himself for apprehended bias reflects the application that was made by counsel at the resumption of trial on 20 November 2019.  Counsel was not suggesting that the Magistrate was biased, but that a reasonable apprehension of bias arose.

31. The basis for this was, primarily, the history that had unfolded on the previous occasion, commencing with the application for the trial to be vacated.  The application rehearsed the history of the application by Mr Aitken to appear as amicus, its refusal and the consequences for the examination-in-chief of Connor.

32. Counsel also submitted that in the course of that examination-in-chief, the Magistrate referred in Court, in front of the appellant, to Connor as the ‘victim’ rather than as the complainant or the witness.

33. I have perused the transcript of that examination-in-chief and have not found any reference by the Magistrate to Connor as the ‘victim’. There may have been an exchange or exchanges that have not been transcribed in which the Magistrate did so.[119] In any event, when refusing the application, the Magistrate said:[120]

    It was also my decision, at the close of the examination-in-chief of the victim – I have referred to him as the victim, I may have but for all intents and purposes, it would only be as the alleged victim if that was the case.

    [119] The Magistrate used the words ‘the victim’ when describing the offence on arraigning the appellant. This simply deployed the description of the offence on the information: T3.23-27.

    [120] T 49.10-13.

34. The other matter that was raised on appeal as supporting a submission of apprehended bias[121] concerned an application to have Connor’s father, Mr Ross, excluded from the Court while Ms Hounsell was giving evidence.

    [121] T 11.24-25.

35. The basis of the application was that Mr Ross had sent text messages to Ms Hounsell.  One of them, it appears, said, ‘Have you told Connor what you are doing to him on the twenty-first’.[122] There was another text message that said something about going to gaol.[123] The Magistrate did not receive those text messages.  The effect of the submission was that these messages were harassing and designed to intimidate Ms Hounsell as a witness.[124]  The prosecution position was that there was nothing untoward about the messages.[125]

    [122] T 178.25-26.

    [123] T 178.27.

    [124] T 180.5-7.

    [125] T 179.6-38.

36. It is not clear to me why the prosecution should have presented such a spirited opposition to the application where it concerned the giving of evidence by a third party.  The basis of the opposition appears to be that it was an open court and that the messages did not amount to harassment. Counsel had indicated that Ms Hounsell had made complaints to the police about her fears, but that the police had taken no action in response.[126]  The police prosecutor’s position was that the complaint was simply providing the information and asking for someone to speak to the complainant’s father, and that this did not amount to a complaint.[127]

    [126] T 180.8-13.

    [127] T 180.32-36.

37. His Honour ruled against the application in the following terms:[128]

    … The application before the court at the continuation of today's part-heard trial is that the court should exercise it’s [sic] authority to exclude a person from the public gallery.  The person sought to be excluded from the public gallery and in the courtroom for the duration of the trial is the father of the complainant. I acknowledge at this stage, the said person is present in the body of the courtroom.  He has not been communicated to about this application and after hearing submissions from counsel, Mr Aitken, and also from the police prosecutor, Sergeant Clarke, I do not deem it relevant nor appropriate that I should illicit any form of response from the person concerned.  This is an open court.  It is open to the public.  The defendant is present in the body of the court.  I notice that the defendant has two young children with him.  I assume and am informed also from my - that they are his daughters.  I am not doing anything about the defendant's daughters sitting with him at the front row of the public gallery behind his counsel.  They can do so.  Likewise, this is an open court.  I will not exclude anybody from this courtroom unless it comes to a stage where I have received a complaint from any party to the proceeding that said party is being intimidated, harassed or is in fear of his or her participation in the proceedings.  I will make no such ruling.  We will continue the trial.

    [128] T 181.5-29.

38. The nub of the ruling is in the last four lines.  His Honour was not prepared to entertain such an application unless it was to the effect that a party was being intimidated or harassed or in fear of their participation in the proceedings.

39. If, by referring to a ‘party’, the Magistrate was referring only to the defendant and the complainant, I do not understand why he would so limit his consideration. If by ‘party’ he was referring to any witness in the proceedings, then this ruling is problematic as this was precisely the application that had been made on behalf of Ms Hounsell.

1. At the hearing of the appeal, Ms Powell QC submitted that this refusal affected the fairness of the trial, in the sense that Ms Hounsell might have felt more at ease and more confident in her answers had Mr Ross not been present.  However, this did not form a separate ground of appeal and Ms Powell conceded that this was a matter that could not be measured.[129]  In those circumstances, I am not equipped to address this issue outside of the bias ground, other than to acknowledge the strength of Ms Powell QC’s submission that there was no reason not to grant the application.

   [129] T11.8-23.

2. Ebner v Official Trustee in Bankruptcy[130] establishes that a judge is disqualified in circumstances where ‘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’.[131]

   [130] (2000) 205 CLR 337.

   [131] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

3. This requires a two-stage test.  The first stage is to identify what it is said that might lead a judge to decide a case other than on its legal and factual merits. The second is the requirement of articulating the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[132]  The ground must be firmly established.[133]  A judicial officer has a duty to sit on a case unless it is firmly established that there are substantial grounds for concluding that there is a reasonable apprehension of bias.[134]

   [132] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

   [133] R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553 (Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer, Owen JJ); Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 549, [135] (Kirby J); Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371 (Dawson J).

   [134] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348, [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Mason J); Bell v Deputy Coroner of South Australia [2020] SASC 59 at [624] (Blue J).

4. The test is objective. The fictional observer is taken to have ‘a broad knowledge of the material objective facts as ascertained by the appellate court’.[135] The fictional observer is taken to be cognizant of the rules and conventions of modern judicial practice.[136]  Moreover, as the Supreme Court of the Australian Capital Territory observed in R v Doogan; Ex parte Lucas-Smith and Others, the test does not impute: [137]

   … to the hypothetical lay observer a propensity to draw the most sinister implications from every ruling or adopt the least favourable interpretation of every judicial comment.  It is more likely that a benign implication or interpretation would be adopted.

   [135] Webb v The Queen;Hay v The Queen (1994) 181 CLR 41 at 73 (Deane J); Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87 (Mason CJ and Brennan J).

   [136] Johnson v Johnson (2000) 201 CLR 488 at 493, [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), 508, [53] (Kirby J).

   [137] (2005) 193 FLR 239 at 257, [78] (Higgins CJ, Crispin and Bennett JJ).

5. I have expressed my conclusions, above, with respect to the Magistrate failing to accede to the application for Mr Aitken to appear as amicus during the examination-in-chief of Connor.  That failure was in error.  However, that does not mean that a fair-minded lay observer might reasonably apprehend that his Honour might not have brought an impartial mind to the resolution of a question that he had to decide.  The Magistrate had a view as to the appropriate course that the trial should take in circumstances where it had been listed for that day.  While I do not accept that the course that he took was justified, that course does not firmly establish any substantial ground for a reasonable apprehension of bias.

6. Similarly, while I see no good reason for not acceding to the application for Mr Ross to be excluded from the Court while Ms Hounsell gave evidence, this refusal does not, in my view, firmly establish a substantial ground for a reasonable apprehension of bias, whether considered alone or in conjunction with the other matters raised.

7. My conclusion is not altered by adding to the complaint the asserted reference by the Magistrate on one or more occasions to the complainant as the ‘victim’.  In accordance with the observations in R v Doogan; Ex parte Lucas‑Smith and Others,[138] such an apparently inadvertent reference, without more, is not capable of grounding a reasonable apprehension of bias without casting an unduly sinister implication upon the terminology.  Ground 6 is not established.

   [138] (2005) 193 FLR 239 at 257, [78] (Higgins CJ, Crispin and Bennett JJ); See further, Johnson v Johnson (2000) 201 CLR 488 at 493, [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

   Ground 5

8. At the close of the prosecution case, the appellant submitted that the information was affected by duplicity.[139]  The essence of the complaint was that there was an allegation that the appellant had put a hand to the throat of Connor and also an allegation that the appellant had punched Connor.

   [139] See T 164.7-12.

9. In Walsh v Tattersall,[140] the High Court expressly approved of a statement of the proscription against duplicity as set out in Archbold: [141]

   The indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences … This rule though simple to state is sometimes difficult to apply … Duplicity in a count is a matter of form, not evidence.

   [140] (1996) 188 CLR 77.

   [141] Walsh v Tattersall (1996) 188 CLR 77 at 84 (Dawson and Toohey JJ), citing Archbold, Criminal Proceeding, Evidence and Practice, 44^th ed. (1995), Volume 1 at 75.

10. In Director of Public Prosecutions v Merriman, Lord Diplock had said:[142]

    The rule against duplicity … has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence.  Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment.

    [142] [1973] AC 584 at 607 (Lord Diplock).

11. The decision of Perry J in Weinel v Fedcheshen,[143] provides a good example of such a practical approach.  In that case, the defendant was charged with having dishonestly obtained payments and benefits under the Workers Rehabilitation and Compensation Act 1986 (SA) on 59 specified occasions by dishonest pretences. A single compendious charge was laid covering all 59 occasions. The alternative Counts 2 to 60 then each related to the separate 59 alleged occasions, one per count.

    [143] (1995) 65 SASR 156 (Perry J).

12. The defendant was convicted on the compendious count. Justice Perry reviewed the law of duplicity comprehensively when rejecting a submission that the terms in which the relevant section was couched precluded the laying of the compendious count.  His Honour said:[144]

    … The cases in which the relevant principles have been discussed invariably cover statutory provisions pursuant to which single counts relating to individual acts might equally well be drawn up. That does not preclude a compendious count where the circumstances warrant that course.

    In this case the prosecution was based from start to finish upon an alleged course of conduct on the part of the defendant.  The case was built up by reference to evidence of extended periods in which his activities were placed under close observation, together with other items of an ongoing nature such as the large number of advertisements placed by him in the newspapers advertising vehicles for sale, evidence of his attendance at auctions and so on.  Indeed, it is difficult to see how the prosecution could have been sustained other than by reference to the circumstantial case which resulted from the mass of evidence of that kind, coupled with the remarkable coincidence between a large number of days off and the timing of the advertisements, which I come to in due course.

    True it is that the so-called compendious count was itself not particularised so as to indicate the individual occasions upon which the prosecution sought to prove the course of conduct, but those individual instances were all particularised in the remaining 59 counts in the complaint.

    There was, therefore, no reason to suppose that in answering to the compendious count, the defendant did not know perfectly well what he was being charged with.  He was being charged with dishonestly obtaining over the period asserted in Count 1 the amounts therein referred to, that charge being said to be made out by reason of the course of conduct of which the individual acts particularised in the subsequent counts were indicative.

    [144] Weinel v Fedcheshen (1995) 65 SASR 156 at 170-171 (Perry J).

13. The discussion of the authorities by Kourakis J (as he then was) in Wellington v Police (Wellington)[145] provides an instructive framework for the application of the principles here.[146]

    [145] (2009) 105 SASR 215 (Kourakis J).

    [146] Wellington v Police (2009) 105 SASR 215 at 219-222, [11]-[20] (Kourakis J).

14. The facts were noticeably comparable to those of the present case. The evidence was that the appellant had punched her son twice, first in a school yard. Then, after pacing several times between her son and her car, she forced the child into the car and punched him a second time.  Justice Kourakis observed:[147]

    The question whether the evidence discloses one or two offences necessarily involves matters of fact and degree.  In Walsh v Tattersall, after surveying a number of authorities, Kirby J enumerated the following indicia of a single offence:  the connection of the events in point in time; the similarity of the acts; the physical proximity of the place where the events happen; and the intention of the accused throughout the conduct.  The application of those indicia to the facts of any particular case requires a practical judgment to be made.

    (Footnotes omitted)

    [147] Wellington v Police (2009) 105 SASR 215 at 219, [11] (Kourakis J).

15. Justice Kirby in Walsh v Tattersall had found that the count was bad for duplicity (contrary to the view of Dawson and Toohey JJ).  Justices Gaudron and Gummow decided the case on different grounds. Nevertheless, while the application of the principles of duplicity can be difficult, the broader statements of principle are not in dispute.

16. Notwithstanding the practical approach exhorted by the authorities, there are limits.  As Kourakis J expressed it in Wellington:[148]

    Nonetheless each count of assault can only charge a single offence.  There are necessarily limits to the conduct which can be described as a single application of force and which, for that reason, can be included within a single count.  Because the actus reus of assault is the application of force the relevant question is therefore whether the indicia identified by Kirby J in Walsh allow a conclusion that there has been a single application of force, even though many blows were struck.  If the question is so framed, the different conclusions reached on the particular facts and circumstances of different cases can be better understood, even if they cannot always be reconciled.

    [148] Wellington v Police (2009) 105 SASR 215 at 220, [13] (Kourakis J).

17. In the present case, the information simply stated that the appellant had assaulted the complainant.  It did not particularise the assault.  The question of duplicity is one of latent duplicity or, perhaps, uncertainty.[149] In Wellington, Kourakis J found that the information and the subsequent conviction were defective by reason of latent duplicity, in that the evidence disclosed two offences.

    [149] Wellington v Police (2009) 105 SASR 215 at 218, [5] (Kourakis J).

18. Justice Kourakis referred to Haskett v Police,[150] where Doyle CJ had considered evidence relevantly to the effect that in the course of a heightened road‑rage incident, the complainant had bent down to pick up a driver’s licence that the defendant had thrown on the ground.  When he did so, the defendant hit him several times on the head with a rock.  The complainant fell to the ground with a bleeding head.  The defendant then hit or kicked him while he was lying on the ground.

    [150] [2005] SASC 174.

19. The Magistrate did not find beyond reasonable doubt that the defendant had initially struck the complainant to the head with a rock before the complainant came to be on the ground.  The Magistrate did find, however, that the defendant kicked the complainant to the head once the complainant was on the ground.

20. The defendant submitted that the prosecutor had to elect whether to rely on the alleged blows to the head in the initial stage or the kicks to the head once the complainant was on the ground.  The Magistrate did not require this.[151]

    [151] Haskett v Police [2005] SASC 174 at [16] (Doyle CJ).

21. Chief Justice Doyle did not accept that the charge was defective for latent duplicity:[152]

    On the evidence all of the alleged blows were struck by Mr Haskett within the space of a few seconds, perhaps within no more than ten seconds. All of them were part of one course of conduct and constituted what any reasonable person would regard as a single incident.  It would be artificial to treat each separate blow and each kick as a separate assault.  It would be equally artificial to separate the blows from the kicks.  In deciding whether a charge based on several acts occurring in the course of a single incident does give rise to latent duplicity, judgments of degree must be made.  It is also relevant to consider whether the approach taken by the Prosecution is likely to be productive of unfairness or uncertainty at the trial.  After considering all of these matters, and the relevant principles, I am satisfied that the Prosecutor was entitled to proceed as the Prosecutor proposed.  This was, in substance, a single assault.

    [152] Haskett v Police [2005] SASC 174 at [18] (Doyle CJ).

22. By contrast, in Stratis v Police (Stratis),[153] Wicks J set aside a conviction on the basis of latent duplicity. The defendant had punched the victim to the chest and face in a nightclub, causing him to collapse.  A friend of the victim intervened and dragged him to the toilet, but while he was being carried away he was struck again on the right side of the face.  The Magistrate was not satisfied beyond reasonable doubt that the defendant had been the one who struck the victim on this second occasion.

    [153] [1998] SASC 6886.

23. In Wellington, Kourakis J observed that in Stratis, Wicks J had not identified any relevant prejudice by reason of that latent duplicity. Justice Kourakis emphasised that it is necessary to resolve both the question of duplicity and that of prejudice arising out of that duplicity.[154]

    [154] Wellington v Police (2009) 105 SASR 215 at 221, [17].

24. Justice Kourakis made a further observation which I regard as important in the context of the present case and which I respectfully adopt:[155]

    The connection I have made between the practical judgment that the court must make about the number of offences comprised in a single count and the construction, and application, of the actus reus of the offence itself can be illustrated by brief references to other offences.  I think, for example, that a narrower view must be taken of conduct that can properly be encompassed within a single count of causing harm than has been taken in the cases of simple assaults to which I have referred.  I think that that follows because of the additional element of actual harm.  It is more difficult to say, for example, that a broken nose caused by a fist is the same harm as a wound to the abdomen caused, even very shortly thereafter, by stabbing with a knife.

    (Footnote omitted)

    [155] Wellington v Police (2009) 105 SASR 215 at 221, [19].

25. In the present case, the information did not allege the causing of harm. The question is whether, in making a practical judgment, I should conclude that there has been, on the evidence, a single application of force, or whether they should be taken to be separate incidents.

26. Thus, in Wellington, Kourakis J decided that the evidence demonstrated that there had been two separate applications of force.  His Honour found that what took place in the car could not be described as the same application of force as had taken place in the school yard.[156]

    [156] Wellington v Police (2009) 105 SASR 215 at 222, [21].

27. I am not persuaded that the charge is bad for duplicity. The break in continuity of the application of force was raised by the defence, in that it had been occasioned by Ms Hounsell’s intervention and the appellant agreeing to leave the caravan. On Ms Hounsell’s account, after the appellant had turned away, Connor hit him on the back of the head and the punching episode had ensued.

28. The prosecution had also tendered the record of interview with the appellant from 26 December 2018. The passage from that record of interview that I have set out above recounts events slightly differently.  The appellant said that after Connor said, ‘why are you choking me?’, the appellant said, ‘alright we’ll do it this way, the old way’, and grabbed Connor by the ear to lead him out the door. On this account, it was then that Connor hit him in the back of the head. The appellant then grabbed him and they both fell out the door.

29. The prosecution had therefore adduced evidence capable of raising a defence of self-defence in respect of the second part of the incident. However, it was not the prosecution case that Connor had hit the appellant on the back of the head. It was for the prosecution to negate self-defence.  It did so by calling Connor. Connor’s evidence was that the appellant had grabbed Connor by the throat, pushed him against a microwave and turned him around, and that Connor then fell back towards the open door of the caravan.[157] The appellant had then punched him to the face after Connor had landed on his back.

    [157] T 22.33-37.

30. The prosecution effectively elected to allege a single application of force. The appellant was on notice of that case.

31. Had the appellant succeeded in establishing self-defence following being hit to the back of the head, that would not have answered the charge insofar as it relied on the grabbing of Connor’s throat. However, an allegation of a single, continuous application of force might otherwise only be accepted in part. That is to say, the trier of fact might not be satisfied beyond reasonable doubt that a particular step in that continuous application of force as alleged, occurred.  Alternatively, they might be satisfied that it did occur, but find that it was not unlawful. This might arise more commonly where it is appropriate to charge separate offences.  As the High Court observed in Zecevic v Director of Public Prosecutions (Vic):[158]

    … A person may not create a continuing situation of emergency and provoke a lawful attack on himself and yet claim upon reasonable grounds the right to defend himself against that attack.

    [158] (1987) 162 CLR 645 at 664 (Wilson, Dawson and Toohey JJ).

32. Still, that does not mean that it was impossible for the appellant to establish self-defence in respect of the punching, after he was hit on the back of the head, had the Magistrate made that finding of fact.

33. I acknowledge that this conclusion might create difficulties in sentencing where the trier of fact is a jury. To take the example of the present case, a verdict of guilty of assault may leave the sentencing judge in the dark as to whether the jury found the defendant guilty only of the first act in the continuous application of force or of both, or whether it had accepted the case of self-defence in respect of the second step. Consistently with the decision of the High Court in Cheung v The Queen[159] it would be for the sentencing judge to make findings of fact in order to assess the defendant’s degree of culpability, providing those facts were not inconsistent with the jury’s verdict.[160]

    [159] (2001) 209 CLR 1.

    [160] Cheung v The Queen (2001) 209 CLR 1 at 9, [5], 10-11, [7]-[10] (Gleeson CJ, Gummow and Hayne JJ).

1. If the offence is properly characterised on the evidence as a continuous application of force, then whether one identifiable part of that continuous application of force is made out is a question of the degree of culpability, rather than a separate element of the offence charged.[161] Here, the prosecution case was that there was a single application of force; the intervening act capable of raising a defence of self‑defence in respect of the second part of that continuous application of force simply did not occur. It was for the prosecution to negate that defence. Subject to the matters which I discuss below, it did so.

   [161] See, e.g. Cheung v The Queen (2001) 209 CLR 1 at 9, [5] (Gleeson CJ, Gummow and Hayne JJ).

2. Moreover, it was possible for the Magistrate to have found, for example, that the actus reus of the offence was made out in respect of the grabbing of the throat, that Connor hit the appellant once the appellant had turned away and that a defence was established in respect of the subsequent punching episode.  Alternatively, his Honour might have found that the defence of removing a trespasser would have been made out in respect of the first part of the continuous application of force, had it ended there, but that the escalation to the punching episode moved that (continuous) application of force beyond the bounds of reasonableness.

3. The possibility of either such outcome did not render the charge duplicitous. Ground 5 is not established.

   Grounds 2.1 and 2.2

4. Grounds 2.1 and 2.2 complain:[162]

   2.     That the Magistrate erred in fact and law:

   2.1    In failing to consider the Appellant’s defence that he was acting for a defensive purpose, namely in removing a trespasser;

   2.2    Alternatively, in failing to provide any or any adequate reasons for finding this defence disproved.

   [162] I consider ground 2.3 together with ground 1 and ground 7 below.

5. Counsel at trial had addressed forcefully to the effect that the appellant was acting in a defensive manner by using such reasonable force as was necessary to remove Connor from the property after Connor had wrongfully refused to leave at the request of his mother:[163]

   What is abundantly clear from the evidence we say is that on 26 December 2018, following on from the police attendance at Ms Hounsell’s home in relation to the allegedly stolen money, is neither Connor Ross’s mum nor Mr Brook, her partner, wanted Connor Ross to remain on the property that day.  They have both had enough of his antics.  He was disruptive.  He was disruptive to that house.  Ms Hounsell made it abundantly clear to her son on a number of occasions that he must leave.  Connor said that in his evidence-in-chief.  What is also clear or made abundantly clear to her son was that proposition on multiple occasions.  What is also clear is that Ms Hounsell, a person both in possession of the land, and with an absolute right to possession of the land, had given her partner Brook lawful authority to tell her son, Connor Ross, to leave the property.  Your Honour knows from Connor Ross’s evidence he abjectly refused to do so.  He said that in his evidence.  Connor Ross’s licence to remain on the land had been lawfully terminated on a number of occasion [sic].  Ross had, as I said earlier, become a trespasser.  Mr Brook was entitled to use reasonable force to remove Connor Ross from the property.

   [163] T 242.28-243.13.

6. The defence would be established where the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable to remove from land or premises a person (Connor) who was committing a criminal trespass.[164]

   [164] Criminal Law Consolidation Act 1935 s 15A(1)(a)(ii).

7. The appellant complains that the judgment fails to refer to this defence and that it can be inferred that it was wrongfully not considered by the Magistrate.  Alternatively, if the Magistrate did consider the defence, he erred in failing to provide any or any adequate reasons for finding the defence disproved.

8. In DL v The Queen,[165] the majority summarised the need for adequate reasons:[166]

   The content and detail of reasons "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision".  In the absence of an express statutory provision, "a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied".  One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.

   (Footnotes omitted)

   [165] (2018) 92 ALJR 636.

   [166] DL v The Queen (2018) 92 ALJR 636 at 643, [32] (Kiefel CJ, Keane and Edelman JJ).

9. As the majority observed, reasons will not be inadequate merely because they do not address a peripheral or irrelevant dispute.  Neither are they required to provide ‘a minute explanation of every step in the reasoning process that leads to the judge’s conclusion’.[167] Rather, as the majority said:[168]

   … In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:

   Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.

   (Footnotes omitted)

   [167] DL v The Queen (2018) 92 ALJR 636 at 643, [33] (Kiefel CJ, Keane and Edelman JJ), quoting Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.

   [168] DL v The Queen (2018) 92 ALJR 636 at 643, [33] (Kiefel CJ, Keane and Edelman JJ), quoting AK v Western Australia (2008) 232 CLR 438 at 468, [85].

10. The respondent contends that it is misconceived to say that the Magistrate failed to refer to the defence, as the objective facts do not establish it in any event. The respondent pointed to the exchange in cross-examination where Ms Hounsell confirmed that saying she wanted Connor to leave was a reference for him to go to talk to his dad about the issue of the money and the fact of the police having come and knocked on her door, rather than wanting him to leave for good.[169]  Similarly, the appellant had said in his record of interview that his intention in going to see Connor in his caravan was ‘to get him out of the house to go … see your father’.[170]  Connor’s evidence was that the appellant had never told him that he wanted him out.[171]

    [169] T 211.26-31.

    [170] Record of Interview at [94]-[96].

    [171] T 84.1.

11. The respondent then relies on a statement by the Magistrate when summarising the evidence of Ms Hounsell:[172]

    She did not mean for him to leave for good, but for him to go talk to his dad about the money and the fact that police had come to her house.

    [172] Police v Brook, Bradley John (Magistrates Court of South Australia, Magistrate Chin, 13 March 2020) at 9, [36].

12. The respondent submits that these ‘findings’ meant that no further exploration of the defence was required.  The facts were incapable of supporting a conclusion that Connor’s licence to be on the property had been revoked.[173]

    [173] Respondent’s Written Submissions at 7, [20].

13. In the alternative, the respondent submits that even if the objective facts could found a conclusion that the licence had been revoked, a licensee does not become a trespasser until they receive notice that the licence is countermanded and a reasonable time has elapsed, such that they may withdraw and remove property they have brought in pursuance of the licence.[174]

    [174] Respondent’s Written Submissions at 7, [21] citing Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 at 630-631 (Dixon J).

14. There are difficulties with these answers.  First, the fact that the direction to leave (however it was framed) was expressed to be temporary does not mean that it was incapable of amounting to a withdrawal of the licence.  On the evidence of Ms Hounsell and the record of interview, the temporary nature of the direction was dependent on Connor fulfilling the condition that he go and see his father.

15. That evidence, if accepted, could permit a finding of a withdrawal of a licence to occupy, coupled with a statement as to the conditions upon which the property owner is prepared to renew the licence.  A person may be ejected from a racecourse or a hotel following the revocation of a licence to be on the premises.  The request to leave that precedes the removal need not be couched in terms that the person never come back.  Indeed, it may often be the case that on a subsequent occasion the licence is renewed without demur.  Here, on the defence case at least, the circumstances in which Connor would be welcome back were implicit.

16. As to the respondent’s submission that in any event, the defence could not be made out as Connor was deprived of reasonable time to withdraw before the appellant attempted to eject him forcibly, that may or may not be the case on the evidence.  The submission relies on a statement by Dixon J in Cowell v Rosehill Racecourse Co Ltd:[175]

    A licence which is not coupled with or granted in aid of an interest is revocable at law.  It operates as a bare permission to do what would otherwise be an invasion of the licensor’s rights.  If the permission is terminated, further continuance of the acts it authorized becomes wrongful.  A licensee does not become a trespasser until he has received notice that the licence is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the licence (Cornish v. Stubbs).  But, if he then refuse [sic] to leave the premises, he cannot complain of his forcible removal.

    (Footnote omitted)

    [175] (1937) 56 CLR 605 at 630-631 (Dixon J).

17. What amounts to a reasonable time will depend on the circumstances.  In the case of a patron on a racecourse, a reasonable time would presumably be that which is sufficient to comply with the request and walk to the gate.  In the present case, had the direction been to leave and not come back, a reasonable time might have required that Connor have an opportunity to pack up his belongings and make arrangements with his father.

18. However, if the revocation of the licence was only temporary in the sense that I have described it above, a reasonable time might not be so long.  On that view, what was required of Connor would depend on the findings of fact as to when the licence was terminated.  On Connor’s own evidence, it was as much as an hour between when he first spoke to his mother on the phone and when the appellant banged on the caravan door. While the timing is less clear on Ms Hounsell’s evidence, her account is that Connor refused, point-blank, to go, notwithstanding her emphatic direction that he leave to talk to his dad.[176]

    [176] T 190.5-36.

19. Were that evidence to be accepted, the temporary and conditional nature of withdrawal of the licence might suggest that in all of the circumstances of Connor’s behaviour and the domestic arrangements, it was not necessary that Connor be given any further time.  I do not express a view on that possibility.

20. In circumstances where the Magistrate rejected Ms Hounsell’s evidence wherever it departed from Connor’s, it might then be argued that the failure to deal with this defence does not matter, as the Magistrate must have impliedly rejected the evidence that was capable of establishing withdrawal of the licence.  However, in circumstances where this defence was such a central part of the appellant’s case, in my view, it was incumbent on the Magistrate to explain his findings of fact, albeit by reference to those findings of credibility, if need be.  He did not do so.

21. In any event, for the reasons which I come to below, the Magistrate’s findings of credibility were flawed. It follows that they are not capable of rescuing the failure to address the defence.

22. The Magistrate’s reasons failed to deal adequately with the defence raised.  In the circumstances of this case, the wholesale rejection of Ms Hounsell’s evidence does not permit a conclusion that he did consider the defence or that there was no utility in doing so.

23. I find that the Magistrate failed to consider the defence that the appellant was acting for a defensive purpose, namely, removal of a trespasser.  Ground 2.1 is established.  Ground 2.2, being an alternative to Ground 2.1, does not arise.

    Grounds 1, 2.3 and 7

24. Grounds 1, 2.3 and 7 complain as follows:

    1.That the Magistrate erred in fact and law in finding that the Appellant was not acting for a defensive purpose, namely, self defence.

    2.     That the Magistrate erred in fact and law:

    …

    2.3    Alternatively, in finding that the Appellant was not acting for a defensive purpose, namely, in removing a trespasser.

    …

    7.That the verdict is unsafe and unsatisfactory and against the weight of the evidence.

25. The appellant addressed these grounds together.

26. This being an appeal under s 42 of the Magistrates Court Act 1991 (SA), the Court is required to reach its own view of the case by reviewing the evidence independently. It is required to give due weight to the advantage of the Magistrate in seeing and hearing the witnesses. Being an appeal by way of re‑hearing, if it reaches a different view on the evidence it is required to give effect to that by substituting its view.[177]

    [177] Taylor v Hayes (1990) 53 SASR 282 at 291 (Perry J).

27. I have set out above in some detail the key elements of the evidence of the complainant and Ms Hounsell. Ms Hounsell gave evidence about Connor’s attention deficit disorder and ODD, and his highly problematic behavioural history. For the purposes of this ground, the appellant referred to both defences raised, but focussed on the use of reasonable force to remove a trespasser.

28. This is understandable, in that in order to secure an acquittal, it would be necessary for this defence to be established. The first, admitted action of grabbing Connor by the throat or upper chest area could not be said to be in self‑defence of the person: on the evidence of Ms Hounsell (and as per the appellant’s record of interview) Connor only struck the appellant from behind after that grabbing.

29. Both self-defence and the defence of use of reasonable force to remove a trespasser were potentially in issue in respect of the punching aspect, depending on the fact finder’s conclusions as to whether Connor struck the appellant from behind, whether Connor was then throwing punches and, depending on those conclusions, the reasonableness of the force (including by way of the number of punches) that the appellant deployed.[178]

    [178] See e.g. Illert v Northern Adelaide Local Health Network Inc (Modbury Hospital) [2016] SASC 186 at [72] (Hinton J).

30. For the purposes of this ground, the appellant emphasises the following matters:[179]

    [179] Appellant’s Written Submissions at 19-20, [82].

    82.     The particular matters the Appellant draws to this Court’s attention are:

    82.1. The matters that support the Appellant’s version of events:

    82.1.1.The Appellant’s account of events in his Record of Interview were consistent, contained significant admissions and was without embellishment;

    82.1.2.The evidence of the mother which was broadly consistent with the account given by the Appellant in his Record of Interview (but not consistent to such a degree as would give rise to any suspicion of fabrication or collusion);

    82.1.3.With respect to the defence based on trespass, even taken at face value, the Complainant’s evidence generally supports that he had been asked to leave the property by his mother, the homeowner, that she was upset by his not leaving the property and that he refused to leave the property.  As such, the Complainant had become a criminal trespasser on the property.

    82.1.4.With respect to the defence based on trespass, the Complainant’s evidence even at face value also generally confirms that the intent of the Appellant was to remove him from the property after the mother asked the Complainant to leave and when asked by the Appellant why he was not going, he confirmed that he was not going.

    82.1.5.The matters that undermine the credibility or reliability of the Complainant as set out at [36]-[49] above.

    (Footnotes omitted)

31. With respect to the matters that undermined the credibility or reliability of Connor, the appellant emphasised inconsistencies and contradictions in Connor’s evidence, which the Magistrate had found, in a global fashion, to have been explained. He also emphasised Connor’s propensity for violence, fighting, defiance and truancy.  He submitted that the Magistrate had not referred to the photographs being inconsistent with Connor’s account of having been punched 10 to 15 times in the face.

32. He submitted that this was a case that required a direction as contemplated in Longman v The Queen,[180] to the effect that it was necessary that the Magistrate warn himself as to the possible danger of basing a conviction on the unconfirmed testimony of Connor in the circumstances of his demonstrated character traits and history, which were capable of affecting his capacity to give reliable evidence.[181]

    [180] (1989) 168 CLR 79.

    [181] Longman v The Queen (1989) 168 CLR 79 at 86 (Brennan, Dawson and Toohey JJ); See also Bromley v The Queen (1986) 161 CLR 315; R v Sinclair and Dinh (1997) 191 LSJS 53.

33. While these matters are important in informing Ground 8, which I consider below, I am not persuaded that Ground 7 is made out.

34. I have perused the evidence carefully and accept that there are reasons, of the kind described above, to be cautious about Connor’s evidence. In addition, Ms Hounsell’s evidence was broadly consistent with the record of interview, albeit with some departures, as I discuss below.

35. However, the appellant had admitted that he was the first to apply force by grabbing Connor by the throat or upper chest area.  There are disputes about whether he used one hand or two hands and about whether he then attempted to eject Connor from the caravan (at least, on the version of events proffered in the appellant’s record of interview). There would be a question as to the reasonableness of the force used by the appellant if he had been removing Connor as a trespasser.  The assessments of credibility are integral to this, as they are to the precise events and their chronology.

36. With respect to the second aspect of the application of force, being the punching aspect, any assessment of that episode must first require determination as to whether Connor struck the appellant from behind.  Notwithstanding my close reading of both the evidence of Connor and Ms Hounsell, and of the record of interview, I am not persuaded that it is possible for me to make findings as to first, whether that incident occurred and second, the precise events of the punching that thereby unfolded, absent the advantage of seeing and hearing the evidence.

37. The findings of fact required in respect of the incident turn heavily on the assessments of credibility of each of Connor and Ms Hounsell. Each gave evidence of the events against the background of a fraught domestic context.  Emotions intruded into the oral evidence.  While these matters are not necessarily a bar to making findings of fact on an appeal by way of rehearing, in the circumstances of this case, I am not confident that I can make the necessary assessments.

1. I am not persuaded that these grounds are established.

   Ground 8

2. Ground 8 complains:

   8.That the Magistrate erred in failing to direct himself, and in not applying, the correct approach to witness evidence and in particular:

   8.1    that it was his duty to keep an open mind about the truthfulness and accuracy of the complainant and to assess that evidence in the light of all of the evidence;

3. In assessing Connor’s reliability, the Magistrate said:[182]

   I find in Connor a witness of truth.  He gave evidence in an uncomplicated manner.  There were times when he became emotional and teary, but nevertheless he managed to maintain a composure of candour.  I was particularly impressed by his forthrightness in admitting, or conceding where appropriate that he had been mistaken as to fact, or had contradicted his earlier statements.

   I specifically direct my mind to the inconsistencies and contradictions revealed in his cross‑examination by counsel, and I am satisfied and accept his explanations about said inconsistencies and contradictions.

   [182] Police v Brook, Bradley John (Magistrates Court of South Australia, Magistrate Chin, 13 March 2020) at 9, [37].

4. The Magistrate found that Connor had not exaggerated or embellished any aspect of his evidence ‘as regards the core features of the prosecution case’.[183]  He then said:[184]

   In coming to these my aforesaid views, I specifically say that I have not even factored in for my consideration that here is a witness recalling what would certainly have been a traumatic incident that had happened to a15 [sic] year old person, diagnosed as suffering from with [sic] ODD and AHD [sic - ADD].  I am persuaded that the addition of such traits into my considerations would only go towards enhancing my views of his credibility.

   [183] Police v Brook, Bradley John (Magistrates Court of South Australia, Magistrate Chin, 13 March 2020) at 9, [37].

   [184] Police v Brook, Bradley John (Magistrates Court of South Australia, Magistrate Chin, 13 March 2020) at 10, [38].

5. There is force in the submission that the Magistrate did not appear to give any real consideration to matters that were capable of undermining Connor’s credibility.  I have summarised those matters, above.

6. In JGS v The Queen, this Court observed:[185]

   Reasons must be sufficiently comprehensive to reveal to parties and an appeal court the basis upon which the trial judge arrived at his or her decision.[186] The function of the appellate court is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of the judicial power.[187]

   (Footnotes in original)

   [185] [2020] SASCFC 48 at [204] (Lovell J, Peek and Bampton JJ agreeing).

   [186] R v Y, K [2015] SASCFC 94 at 11 [39] per Sulan J (Kourakis CJ and Parker J agreeing).

   [187] Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at 22 [48] per Basten JA (Beazley JA agreeing).

7. This is not limited to fact-finding.  In AK v Western Australia,[188] the High Court said:

   … Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.

   (Footnote omitted)

   [188] (2008) 232 CLR 438 at 468, [85] (Mahoney JA).

8. When it comes to assessments of credibility, what is required of reasons may not be great.  In Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said:[189]

   The weight which a judge will give to the evidence of a witness will often be not capable of rationalisation beyond the statement:  having heard him, I am not satisfied that I should accept what he says.

   [189] (1987) 10 NSWLR 247 at 273-274.

9. In the same case, McHugh JA said:[190]

   … Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary “for him to go further and say, for example, that the reason was based on demeanour” ...  The position will usually be different if other evidence and probabilities are involved.  A superior court, considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding ...

   If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons ... But it is necessary that the essential ground or grounds upon which the decision rests should be articulated ...

   (Emphasis in original)

   [190] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 (McHugh JA).

10. Defence counsel at trial had addressed in detail matters that were capable of affecting both Connor’s credibility as an honest witness and also his reliability, specifically, the numerous inconsistencies in his evidence, his behavioural traits and his history.[191]  He had also submitted that the photographs did not reflect the kind of beating that Connor said the appellant had dealt him.[192]

    [191] T 240.27-242.28.

    [192] T 240.14-17.

11. The Magistrate’s only treatment of the depictions in the photographs was to say that he found ‘as factually established the injuries of Connor in the photographs as described by the handwritten remarks of [officer] Reinbrecht’.[193] Those descriptions were cursory, for example, ‘Swollen top lip’[194] and ‘Scratch mark – right side of neck’.[195] He did not address the claimed discrepancy between the photographed injuries and Connor’s evidence as to the beating.

    [193] Police v Brook, Bradley John (Magistrates Court of South Australia, Magistrate Chin, 13 March 2020) at 10, [39].

    [194] Exhibit P1, BB2.4.

    [195] Exhibit P1, BB2.5.

12. The Magistrate’s assessment of Connor’s credibility was heavily reliant on Connor’s demeanour.  The Magistrate did not address the matters identified by defence counsel as going to Connor’s reliability, other than by referring to the fact of certain inconsistencies in the evidence, which he did in the most cursory way. These matters were squarely in issue.

13. Defence counsel at trial couched the issue as requiring a warning as contemplated in Bromley v The Queen.[196]  On appeal, one aspect of the complaint was that a direction should have been given in accordance with Longman v The Queen.[197]  The challenges made by the appellant do not easily fall within the scope of contemplation of either of those cases, but they speak to a broader principle, which Cox J described in R v Sinclair and Dinh:[198]

    The general principle applicable here, in my view, is that implicit in Longman and Bromley – that where there is some particular reason, such as bad character or hostility or self‑interest, to question seriously the bona fides of a Crown witness, the trial judge should give the jury such warning as is appropriate of the possible danger of basing a conviction on the unconfirmed testimony of that witness.  He might also have to give the warning where the confirmation comes from a similar questionable source.  The kind and degree of the warning will depend on the circumstances of the case including the degree to which the need for it will or will not be obvious to the jury.  There is no prescribed formula for the warning and it will often be sufficient to give it in brief and unelaborated terms…

    [196] (1986) 161 CLR 315; T 241.24-33.

    [197] (1989) 168 CLR 79 at 86 (Brennan, Dawson and Toohey JJ).

    [198] (1997) 191 LSJS 53 at 60 (Cox J).

14. This having been a trial before a Magistrate, the Magistrate was required at least to address the matters that counsel had raised as having the potential to compromise the reliability of Connor’s evidence.

15. Rather, the Magistrate’s statement quoted above contains an extraordinary statement to the effect that the ODD and ADD diagnoses could only go towards enhancing his favourable impression of Connor’s credibility.[199] There was nothing before the Magistrate that could possibly have justified such a statement.

    [199] Police v Brook, Bradley John (Magistrates Court of South Australia, Magistrate Chin, 13 March 2020) at 10, [38].

16. However, the Magistrate also expressly said that he was not factoring in considerations of Connor’s ODD and ADD.[200]  The respondent submits that it follows that these matters did not impact on his findings. So much may be accepted.  However, the defence had put Connor’s behaviour in issue, arguing that it tended to undermine his credibility and reliability. This statement tends to confirm that the Magistrate had no regard to these contentions.

    [200] Police v Brook, Bradley John (Magistrates Court of South Australia, Magistrate Chin, 13 March 2020) at 10, [38].

17. In my view, the Magistrate erred by failing to consider matters raised by the appellant that were relevant to assessing, at the very least, the reliability of Connor.

18. There is a further difficulty.  When the Magistrate assessed the evidence of Ms Hounsell, he made the following findings:[201]

    From my considered observations of Hounsell and the evidence she gave, I am not able to find by her demeanour any iota of confidence as would accord me the opportunity find [sic] her a witness of credibility.  Her version of what happened in the caravan is not only diametrically opposed to the version of Connor, but is also at odds with the core features of the version proffered by the Defendant in his ROI.

    I find that her evidence of what happened between the Defendant and Connor at the caravan a manufactured version, tailored to answer the prosecution case.  To put it simply, she embarked on a blatant attempt to muddy the waters.

    [201] Police v Brook, Bradley John (Magistrates Court of South Australia, Magistrate Chin, 13 March 2020) at 10, [40]-[41].

19. These paragraphs are highly problematic. The Magistrate’s rejection of Ms Hounsell’s evidence appears to be based on three factors: (a) her demeanour; (b) the fact that her evidence was ‘diametrically opposed to the version of Connor’; and (c) that her account was at odds with the ‘core features’ given by the defendant in his record of interview.

20. I am not confident that in expressing himself in this way, the Magistrate did not base his rejection of Ms Hounsell’s credibility on his acceptance of Connor’s credibility.  It is well established that it is an error to approach a criminal trial as being a case of ‘word against word’.  To do so is to fail to undertake what is required of the resolution of a criminal trial, which is to determine whether the prosecution had proved the elements of the offence beyond reasonable doubt.  To prefer one version over another merely by way of comparison does not achieve this.[202]

    [202] Douglass v The Queen (2012) 86 ALJR 1086 at 1089, [12] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Murray v The Queen (2002) 211 CLR 193 at 213, [57] (Gummow and Hayne JJ).

21. To this it might be responded that the Magistrate also relied on Ms Hounsell’s evidence being at odds with the core features of the version proffered by the defendant in his record of interview.  On one view, this repeats the error.  More fundamentally, however, the statement is wrong.

22. No-one suggested that Ms Hounsell was present for the first part of the exchange between the appellant and Connor.  Once she was present, her evidence was that she went into the caravan.  Connor’s evidence was that she was not in the caravan.  Ms Hounsell’s evidence was consistent with the record of interview of the appellant.[203]

    [203] Record of Interview at [120].

23. The only notable inconsistency between the record of interview and Ms Hounsell’s evidence was that Ms Hounsell had no recollection of the appellant saying, ‘Alright we’ll do it this way, the old way’ and grabbing Connor by the ear.[204]

    [204] T 226.19-227.9.

24. Ms Hounsell’s evidence could not be said to be ‘at odds with the core features of the version proffered by the Defendant in his ROI’.[205] That was a serious mischaracterisation of her evidence.[206]

    [205] Police v Brook, Bradley John (Magistrates Court of South Australia, Magistrate Chin, 13 March 2020) at 10, [40].

    [206] See JGS v The Queen [2020] SASCFC 48 at [288]-[289] (Lovell J, Peek and Bampton JJ agreeing).

25. However, it was on this composite basis that the Magistrate found Ms Hounsell’s version of what had occurred to be ‘a manufactured version, tailored to answer the prosecution case’ and that Ms Hounsell had ‘embarked on a blatant attempt to muddy the waters’.

26. That conclusion depended on a characterisation of her evidence that was factually wrong.[207]  Ground 8 is established.

    [207] See Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (Brennan, Gaudron and McHugh JJ); Fox v Percy (2003) 214 CLR 118 at 128, [28]-[29] (Gleeson CJ, Gummow and Kirby JJ).

    Conclusion

27. The respondent submitted that the evidence of Connor and the admissions in the record of interview made the prosecution case overwhelming.[208]  However, the strength of the prosecution case was necessarily dependent upon a proper consideration of the defences raised and a correct approach to assessment of the witnesses.  The errors in these regards gave rise to a substantial miscarriage of justice.

    [208] T 20.7.

28. I allow the appeal on Ground 2.1 and Ground 8.  I quash the conviction and remit the matter for retrial before a different Magistrate.