Buzzacott v Police - [2021] SASC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
BUZZACOTT v POLICE
[2021] SASC 119
Judgment of the Honourable Justice David
22 October 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - GENERALLY
This is an appeal against convictions imposed by a Magistrate on 11 March 2021. On that date, the appellant was found guilty of 13 charges, comprising seven counts of aggravated assault against own child/spouse and six counts of contravening an intervention order.
The appellant seeks that the trial Magistrate's finding of guilt with respects to all counts be set aside. Alternatively, the appellant seeks that the matter be remitted for retrial. The appellant relies on the following grounds:
1.      The trial Magistrate erred in respect of the appellant's record of interview by:
a.      failing to properly or adequately direct herself as to the possible use of the evidence; or
b.      failing to provide reasons for rejecting the accused's denials.
2.      The trial Magistrate erred in rejecting the defence submissions that the extent of the injury was not consistent with the description of force and number of blows to the complainant's face.
3.      The trial Magistrate erred in rejecting in total the evidence of the appellant's mother and/or failed to properly or adequately consider those aspects of the evidence of that witness which she had not specifically rejected.
Held, per David JA, dismissing the appeal:
1.      The appellant has not demonstrated any error in the trial Magistrate's approach or reasoning.
Criminal Law Consolidation Act 1935 (SA) s 20(3); Evidence Act 1929 (SA) s 21; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2aa)(b); Magistrates Court Act 1991 (SA) s 42, referred to.
Frunks v Police [2016] SASC 120; Harwood v Police (1998) 71 SASR 300; Kotz v Police (1999) 205 LSJS 172; Mule v The Queen (2005) 79 ALJR 1573; Nguyen v The Queen (2020) 94 ALJR 686; Papps v Police (2000) 77 SASR 210; Pell v The Queen (2020) 268 CLR 123; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24; R v Keyte (2000) 78 SASR 68, considered.

BUZZACOTT v POLICE
[2021] SASC 119
Magistrates Appeal: Criminal

DAVID JA: This is an appeal against convictions imposed by a Magistrate on 11 March 2021 in the Port Augusta Magistrates Court. On that date, the appellant was found guilty of 13 charges, comprising seven counts of aggravated assault against own child/spouse and six counts of contravening an intervention order.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 20(3); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2aa)(b).
The appellant seeks that the trial Magistrate’s finding of guilt with respect to all counts be set aside and that the Court enter acquittals on all counts and dismiss the Information. Alternatively, the appellant seeks that the matter be remitted for retrial. The appellant relies on the following grounds:
1.The learned trial Magistrate erred in respect of the accused’s record of interview by:-
a.failing to properly or adequately direct herself as to the possible use of the evidence; or
b.failing to provide reasons for rejecting the accused’s denials.
2.The learned trial Magistrate erred in rejecting the defence submission that the extent of injury was not consistent with the description of force and number of blows to the complainant’s face;
3.The learned trial Magistrate erred in rejecting in total the evidence of the witness Geraldine Buzzacott and/or failed to properly or adequately consider those aspects of the evidence of that witness which she had not specifically rejected;
4.…
5.…
Grounds 4 and 5 were abandoned before the appeal hearing.
The charged offences
The appellant was charged with:
(1)six counts of aggravated assault against the complainant (‘CM’) contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (counts 1, 3, 5, 8, 10 and 12);
(2)one count of aggravated assault against his daughter (‘AB’) contrary to s 20(3) of the CLCA (count 7); and
(3)six counts of contravening a term of an intervention order contrary to s 31(2aa)(b) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (counts 2, 4, 6, 9, 11 and 13).
The aggravating circumstance alleged in respect of each of the charges of assault on CM was that the appellant committed the offence knowing that the victim was, at the time of the offence, a person with whom he was in a relationship.[2]
[2] Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g).
The aggravating circumstances alleged in respect of the charge of assault on AB were that the appellant committed the offence knowing that the victim was, at the time of the offence, under the age of 12 years,[3] and that the appellant committed the offence knowing that the victim was a child of whom he is the parent or guardian.[4]
[3] Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(e)(ii).
[4] Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g).
The charges arise from the appellant’s former relationship with his domestic partner, CM. They have two daughters, one born in 2019 and another born in 2020.
On 26 August 2019, the appellant was personally served with a police-issued Interim Intervention Order for the protection of his domestic partner, CM (the ‘IIO’). It was a condition of the IIO that the appellant was not to ‘assault, threaten, harass or intimidate’ CM.
On 25 December 2019, the appellant allegedly punched CM to the head five or six times (count 1) in contravention of the IIO (count 2). Later that same day, the appellant again allegedly punched CM to the head two to three times (count 3) in contravention of the IIO (count 4).
On 5 January 2020, the appellant allegedly threw a mobile telephone at CM’s head (count 5) in contravention of the IIO (count 6). The telephone did not connect with CM’s head but instead allegedly struck their child, AB (count 7). That same day, the appellant allegedly punched CM to the side of her stomach (count 8) in contravention of the IIO (count 9).
On 9 May 2020, the appellant allegedly punched CM to the face or stomach one to two times (count 10) in contravention of the IIO (count 11). On the same day, the appellant allegedly punched CM to the face (count 12) again in contravention of the IIO (count 13).
On 27 July 2020, the appellant was arrested in Port Augusta. The appellant participated in a police record of interview (the ‘ROI’), during which he made repeated and vehement denials of the allegations and made some comments about an Xbox controller. I discuss the ROI in more detail later.
The appellant pleaded not guilty to all charges and the matter proceeded to trial before a Magistrate sitting in the Port Augusta Magistrates Court on 13 and 14 January 2021.
The course of the trial
The prosecution called four witnesses at trial: CM, Ms Geraldine Buzzacott (the appellant’s mother), Brevet Sergeant Brenton Spratt, and Senior Constable Paul Adams. The prosecution also tendered by consent a statement of agreed facts and an affidavit of Brevet Sargent Benjamin Treloar affirmed on 16 October 2020, to which was attached a booklet of photographs of CM’s injuries taken on 7 January 2020. The prosecution tendered a copy of the appellant’s ROI, over the objection of counsel.
At trial, it was not disputed that at all relevant times the IIO was in force and that a condition of the IIO was that the appellant must not ‘assault, threaten, harass or intimidate’ CM. Nor was it disputed that at all relevant times CM was in a domestic relationship with the appellant and that the appellant is the father of AB.
The appellant did not give nor call evidence at trial.
Before I consider the appeal grounds it is necessary to provide an outline of the evidence heard at trial.
CM gave evidence that on 25 December 2019, the appellant had gone out drinking and returned home between 9pm and midnight. She was asleep and was woken by knocking at the door. Upon opening the door, the appellant walked into the house and punched her to the head five or six times, causing her to ‘blank out’ (count 1). Later that evening, CM was sitting on the lounge with the appellant. They were arguing. CM wanted to go to the hospital, but the appellant would not let her. In cross-examination, CM said that the appellant again punched her to the face twice (count 3).
CM said that she had a black eye the next day, which she had for over a week. She said that on 5 or 6 January 2020, a police officer, ‘Ben’, took photographs of ‘what was left of my black eye and the photos on the phone’. CM said that she had taken photographs of her injuries with her mobile telephone at a time between 1 and 4 January 2020.
As to 5 January 2020, CM said that she was at the home of the appellant’s mother, Ms Buzzacott. She said that she and the appellant were sitting on the lounge. CM said that the appellant asked her to find a charger for the Xbox gaming console. She could not find it. The appellant responded by throwing a phone, which missed her (count 5) and connected with their daughter, AB, who was aged six or seven months at the time (count 7). CM said that AB sustained a cut to her chin.
CM said that the appellant’s mother came into the room and whilst his mother was trying to ‘cover’ her, the appellant punched CM to the side of the stomach (count 8). She said that Ms Buzzacott was standing in front of her with her arms up but the appellant went around his mother and punched her. A few hours later, CM went to the hospital.
As to the alleged incidents on 9 May 2020, CM said that she was at the home of Ms Buzzacott. She said she went and laid down in a bedroom with her daughter, AB. The appellant had been drinking alcohol throughout the afternoon and early evening. The appellant came into the bedroom and punched CM once or twice to the stomach or face, but she wasn’t sure which part of her body he hit (count 10). CM said that she ran outside with her daughter to the garage (where the rest of the family was congregated) and the appellant followed her, but he then stopped upon seeing his family. CM said that she went back inside with her daughter to the bedroom. She said the appellant again came into the bedroom and punched her (count 12). The appellant’s family then locked him outside of the house.
It was suggested to CM in cross-examination that the appellant did not punch her on any of the charged occasions or throw a telephone at her or her daughter. As to the alleged incident on 5 January 2020, defence counsel at trial suggested to CM that there no Xbox gaming console in the house at that time. CM responded that there was. It was suggested to CM that she was ‘making all of this up’, which she denied.
The appellant’s mother, Ms Geraldine Buzzacott gave evidence. As to the alleged incident on 5 January 2020, she said that the appellant and CM had an argument caused by CM’s jealousy. In relation to the argument, she said:
A… like I said he sits home and not have a games or anything because we never had any games.
QWhat do you mean by that.
ALike, if she’s saying that he was playing on the PlayStation and that because Caleb was on – he wasn’t even on benefit, on Centrelink or anything. He started – he only applied for Centrelink when he was only 17, that’s when he first got his PlayStation 2.
Ms Buzzacott said that on 5 January 2020, as she entered the room CM ran behind her. She agreed that CM looked fearful and was crying and appeared upset. She said that the appellant walked into the room and when she was in front of CM he just turned around and backed off. She said: ‘[H]e just walked away, he was wild.’ Ms Buzzacott said that CM then rang people to come and collect her.
Ms Buzzacott was shown photographs (Exhibit P5) of the injury allegedly sustained by CM on 25 December 2019. She said that she did not see CM with that injury to her eye on 5 January 2020.
In cross-examination, Ms Buzzacott said that she did not have an Xbox in her house on 5 January 2020. She said she was sure about that because the appellant was so young and had only turned 17 and they ‘didn’t have them things’. Ms Buzzacott said that on that day she did not see the appellant punch CM. Nor did she hear anything fall onto the wooden floor or see any injury to AB, such as a cut to her chin.
It was an agreed fact that on 6 January 2020, police officers spoke with CM but she did not provide a formal statement to the police at that time. It was also an agreed fact that on 10 July 2020, CM provided a statement to the police in respect of the charged offences.
On 27 July 2020, police officers arrested the appellant. He was interviewed at the Port Augusta Police Station. His mother, Ms Buzzacott, was present during the interview. During the interview the appellant vehemently and repeatedly denied the allegations. He referred to CM as a liar. He denied having assaulted CM on any of the charged occasions. He was not asked about having contravened the IIO. In the context of the allegation that he had punched CM to the stomach, the appellant said that he never went for the stomach, he always went for the face. When it was suggested to the appellant that on 5 January 2020 he had a verbal fight with CM in relation to an Xbox controller or remote, the appellant responded: ‘What? Have I threw my Xbox controller at her? Every time I threw it at the fucken floor.’
At trial, defence counsel objected to the tender of the ROI on the following grounds:
(1)The appellant was not given his arrest rights immediately prior to the interview commencing;
(2)The police persisted in questioning the appellant after he had said ‘no comment’; and
(3)It was irrelevant.
The trial Magistrate ruled in favour of the admission of the ROI and declined to exclude the ROI as irrelevant or in the exercise of the court’s discretion. That ruling was not challenged on appeal.
The Magistrate’s reasons for verdicts
On 11 March 2021, the trial Magistrate found each offence proved and published reasons for the verdicts.
In the reasons for verdicts, the trial Magistrate summarised the evidence and then turned to consider the ‘evidentiary issues’. Those issues included the defence submission that CM’s account was implausible because had she been assaulted on 25 December 2019 as she described, she would have sustained far more serious injuries. The trial Magistrate rejected that submission.
The trial Magistrate found that the aggravating circumstances alleged in respect of each offence of assault (which were not in dispute) were proved.
The trial Magistrate referred to the evidence of CM as being the only evidence given in relation to the alleged assaults on 25 December 2019 (counts 1 to 4) and 9 May 2020 (counts 10 to 13). Her Honour noted that ‘[t]he ROI evidenced the defendant’s denials in relation to those allegations’. The trial Magistrate then turned to Ms Buzzacott’s evidence and rejected her evidence to the extent that it differed from that of CM. Her Honour said:
… However, Ms Buzzacott’s evidence contradicted [CM’s] version of the events of 5 January 2020 in relation to whether:
(a)the defendant threw anything at [CM];
(b)the defendant hit [CM];
(c)the defendant had an X-box;
(d)[CM] had any visible injuries, namely a black eye; and
(e)[AB] had an injury to her chin (either on that day or earlier).
The trial Magistrate concluded that the photographs taken on 7 January 2020 of an injury below CM’s eye suggested that Ms Buzzacott was mistaken when she said that she did not observe any injury to CM on 5 January 2020. Her Honour also noted that Ms Buzzacott was mistaken when she said that the appellant was 17 years old as at 5 January 2020. By reason of those mistakes, the trial Magistrate concluded that Ms Buzzacott’s evidence was unreliable, and her Honour rejected Ms Buzzacott’s evidence where it differed from the evidence of CM.
As to the evidence of CM, the trial Magistrate accepted her evidence beyond reasonable doubt.
After dealing with some further submissions from defence counsel as to the uncertainty of CM’s evidence on the question of which part of her body the appellant struck on 9 May 2020 (counts 10 to 12) and the applicability of the principles of transferred malice in respect of the assault on AB (count 7), the trial Magistrate found all offences proved.
Nature of the appeal
The right to appeal against a conviction imposed by the Magistrates Court is contained in s 42(1) of the Magistrates Court Act 1991(SA) (the ‘Act’). The powers available to this Court in the determination of such an appeal are contained in ss 42(4) and (5) of the Act. Pursuant to s 45(2) of the Act, the powers of this Court on hearing the appeal includes the power to ‘confirm, vary or quash the judgment subject to the appeal’.
The approach to be taken in such an appeal was neatly summarised by Doyle J in Frunks v Police:[5]
As this is an appeal by way of re-hearing, I am required to undertake an independent review of the evidence and the findings below, and form my own view as to the appropriate outcome. It is not necessarily enough to justify dismissing the appeal that there was evidence which meant it was open to the Magistrate to reach the decision he did. If, despite taking account of the Magistrate’s advantage in seeing and hearing the witnesses, I reach a different view on the evidence I must give effect to that by substituting my view for that reached by the Magistrate, or if it is appropriate by remitting the matter for a re-trial.
That said, the appeal is not a hearing de novo and so I should not substitute my own view, or otherwise interfere, unless satisfied that the Magistrate has made an error. Further, in conducting my own review of the evidence and findings below, while not shying away from the task of weighing conflicting evidence and drawing inferences where appropriate, I should nevertheless have regard to the findings of the Magistrate, and any advantage that he may have had in making these findings.
(footnotes omitted)
[5] [2016] SASC 120 at [11]-[12]; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 at [114]-[118].
Ground 1 – Errors with respect to the ROI
The appellant contends that the trial Magistrate made two errors in respect of the ROI: first, in failing to adequately direct herself as to the use to be made of the ROI; and second, in failing to provide reasons for rejecting the appellant’s denials in the ROI.
At trial, the prosecution sought to lead the appellant’s ROI as probative of the charged offences over the objection of counsel. The prosecution relied on the appellant’s statements therein: ‘I never go for the stomach, I always go for the face’, and as to the Xbox controller: ‘Every time I threw it at the fucken floor’. The prosecution submitted that the evidence was potentially relevant to show that the appellant had a propensity to punch others and to throw Xbox controllers. The prosecution also submitted that it was relevant for a non-propensity use to show that the appellant owned an Xbox gaming console on 5 January 2020.

Following the close of the prosecution case, the trial Magistrate ruled in favour of the admission of the ROI for a limited non-propensity use. As indicated earlier, Ms Buzzacott had given evidence that the appellant did not own an Xbox controller on 5 January 2020. In an ex-tempore ruling as to the admissibility of the ROI, her Honour said:
I’m of the view that the evidence has limited use but it may ultimately have some use, depending on how the balance of any evidence pans out and potentially on the evidence that’s already been received. Not for propensity and not in relation to the comment about ‘If I punch, I punch in –’ – I’m paraphrasing badly but ‘I punch in the face, not the stomach’, but in relation to the Xbox controller, given the oral evidence that the court’s received, it may have some relevance. The extent of that is probably limited but yes, I can’t see that it’s wholly irrelevant.
Once admitted, the ROI was also relevant for the appellant’s denials.
In her reasons for verdicts, the trial Magistrate repeated her ruling that the ROI ‘had limited relevance, but some relevance’, without going into any further detail as to the basis upon which the ROI was admitted.
The appellant contends that the trial Magistrate in her reasons for verdicts failed to adequately direct herself as to the use to be made of the ROI, and that it is unclear whether or not her Honour used the appellant’s ROI for a propensity purpose. That is, a propensity on the part of the appellant to throw the Xbox controller and to punch people in the face. The appellant submits that the trial Magistrate’s reasons are inadequate in that they do not properly explain the use made of the ROI by her Honour in reasoning to the appellant’s guilt.
A magistrate has a duty to give adequate reasons for decision in a contested matter and the failure to do so is an error of law.[6] This obligation extends to identifying the use to be made of evidence which is admissible for one purpose but not for another, particularly where the evidence is prejudicial to a defendant.[7] The provision of adequate reasons is necessary for the purposes of appropriate appellate review and so that justice is seen to be done.[8] The extent of those reasons will depend on the circumstances of the case and the issues in dispute.[9]
[6]     Harwood v Police (1998) 71 SASR 300 at 304-6 per Duggan J; R v Keyte (2000) 78 SASR 68 at [51] per Doyle CJ.
[7]     Harwood v Police (1998) 71 SASR 300 at 306 per Duggan J; Kotz v Police (1999) 205 LSJS 172 at 182 per Martin J.
[8]     Harwood v Police (1998) 71 SASR 300 at 306 per Duggan J.
[9]     R v Keyte (2000) 78 SASR 68 at [57] per Doyle CJ.
I do not accept the appellant’s submission that the trial Magistrate failed to properly direct herself as to the possible use of the appellant’s ROI. The trial Magistrate expressly stated in her ex-tempore ruling that the appellant’s ROI was not admitted for any propensity purpose; whether that be a propensity to punch people in the face or to throw an Xbox controller. The trial Magistrate made clear in her ruling that the ROI was only admitted for the appellant’s statements as to the Xbox controller to establish that the appellant owned an Xbox controller on 5 January 2020. In the reasons for verdicts, the trial Magistrate reiterated her ruling that the ROI has ‘limited relevance’. That statement related solely to the issue of admissibility and not to the ultimate use to be made of the ROI.
It is plain from the trial Magistrate’s reasons, that despite admitting the ROI as relevant to establishing that the appellant owned an Xbox gaming console, her Honour only used the ROI as evidence of the appellant’s denials, that is, in a manner most favourable to the appellant. It was permissible for the trial Magistrate to admit the ROI for one purpose, but ultimately use it as evidence for another, namely for the appellant’s denials.
In the reasons for verdicts, her Honour expressly refers to the appellant’s denials. In summarising the prosecution case, the trial Magistrate does not mention having had regard to, or having used, any part of the ROI in her reasoning, except for the appellant’s denials. There is nothing in the trial Magistrate’s reasons to support the submission that her Honour used the appellant’s statements in the ROI for a propensity purpose for which they were not admitted. It is clear from the reasons for verdict that her Honour took a conservative approach and only used the ROI for the appellant’s denials.
It might have been preferable for the trial Magistrate to have expressly stated in her reasons for verdicts that the ROI was only admitted as relevant to establishing that the appellant owned an Xbox controller (as was made clear in her earlier ruling) and that ultimately the ROI was not used for a propensity purpose or to reason towards guilt and only used for the appellant’s denials. That would have put the matter beyond all doubt. However, on considering the reasons for verdicts as a whole, I do not accept the submission that the trial Magistrate failed to adequately direct herself as to the possible use of the evidence. The trial Magistrate made plain how she had in fact used the ROI, namely for the appellant’s denials.
For the reasons outlined above, I am satisfied this was not a case where there was a danger of misuse of the ROI by the trial Magistrate; and this is not a case where a court of appeal is deprived of the ability to decide whether the trial Magistrate correctly applied the relevant rules of law. Nor is this a case where an appeal court is deprived of assessing the manner in which the conclusions of guilt were reached by reason of inadequate reasons. I am satisfied the reasons for verdict make clear that the ROI was only used by the trial Magistrate for the appellant’s denials.
As to the second part of this ground of appeal, the appellant contends that the trial Magistrate gave no reasons for rejecting the appellant’s denials in the ROI. The appellant submits that her Honour made no findings or assessments of the appellant’s denials, including as to his demeanour when first confronted with the allegations. The appellant complains that her Honour provided no reasons for rejecting the appellant’s denials.
In her reasons for verdicts, the trial Magistrate did not explicitly reject the appellant’s denials. However, the acceptance of CM’s account beyond reasonable doubt, as supported by photographs of a black eye taken days after the alleged offending and a finding that Ms Buzzacott was mistaken in those aspects of her evidence which contradicted CM’s account, implicitly involved a rejection of the appellant’s denials in his ROI.
In the circumstances of this case, the trial Magistrate was not required to provide any express or specific reasons for the implicit rejection of the appellant’s denials made in his ROI. The appellant’s denials in his ROI, whilst vehement and attended by statements that CM was ‘a liar’, were effectively bare denials; there was no alternative version of the allegations put forward which might have required elaboration as to why they were rejected. Further, the appellant did not give evidence at trial. The trial Magistrate was not bound to give the appellant’s statements in his ROI the same weight as sworn evidence.[10]
[10] Mule v The Queen (2005) 79 ALJR 1573; Nguyen v The Queen [2020] ALJR 686 at [23]-[24].
In support of this ground of appeal, the appellant relied on the authority of Papps v Police (‘Papps’).[11] Papps can be distinguished from the present case on its facts, and on the basis upon which the appeal was allowed. In Papps, following a trial, the defendant was convicted of various driving offences. The defendant gave sworn evidence denying the charges and providing an innocent account which was supported by the evidence of a passenger in the vehicle at the time of the alleged offending. The defendant thereby presented a positive defence case which had the capacity to undermine the credit of the police officers upon whose evidence the prosecution case relied. In Papps, the Magistrate, in his reasons, dismissed as irrelevant significant aspects of the defendant’s evidence and that of his witness which were directly relevant to the credibility of the police witnesses. The appeal was allowed on a dual basis; the failure to consider relevant evidence together with the failure to provide adequate reasons.
[11] (2000) 77 SASR 210.
Justice Gray (with whom Olsson and Wicks JJ agreed) said:[12]
The issue that then arises is whether the magistrate’s reasons in this matter were adequate. The resolution of the issue of credit was central and critical to a proper consideration of the charges. The magistrate dealt with the credit of the police witnesses, and his assessment of them, but he did not deal at all with the credit of the defendant or his witness or his assessment of them. He gave no reasons for his rejection of the defence case.
…
This Court is left to speculate as to why the defence evidence was rejected. The magistrate failed to reveal the reasoning on which the critical finding was based. The lack of reasons frustrates the performance by this Court of its appellate duties. The magistrate’s reasons were inadequate.
…
In summary, the magistrate erred in failing to consider all relevant evidence. This failure was compounded by his failure to give adequate reasons. As both errors went to the issue of credit there must be a new trial.
[12] (2000) 77 SASR 210 at [36]-[40].
In the present case, there was no alternative version of events presented by the appellant, either in his ROI or by sworn evidence, which had the potential to undermine the credibility or reliability of CM or other prosecution witnesses. As such there was not the same necessity for the trial Magistrate to provide reasons for rejecting the appellant’s bare denials made in his ROI.
As to the issue of the appellant’s demeanour during the ROI, a defendant’s demeanour can be a matter which may be relevant in assessing the weight to be afforded to a person’s statements made in a police interview. However, in this case, no submissions were put by either counsel to the trial Magistrate regarding the appellant’s demeanour, or, how it should be taken into account. In those circumstances, the trial Magistrate was not in error in providing no specific reasons that addressed the appellant’s demeanour in the ROI.
The appellant also submits that if the trial Magistrate rejected the appellant’s denials simply by reason of having accepted CM’s evidence, and no more, then her Honour has reasoned impermissibly. The appellant submits that even if the trial Magistrate accepted CM’s evidence as truthful, her Honour still needed to consider whether each offence was proved on the whole of the evidence, including the appellant’s denials in his ROI.
I am satisfied the trial Magistrate did not reason in that way.
In her reasons for verdicts, the trial Magistrate said:
It is often emphasised, most recently by the High Court in Pell v The Queen, that acceptance of a complainant as a credible witness is not, in itself, sufficient to prove an offence to the designedly exacting standard of proof beyond reasonable doubt. The complainant’s evidence of the offence charged must also be sufficiently reliable to satisfy the criminal onus. The prosecution may fail to prove the offence beyond reasonable doubt because there is other credible evidence, inconsistent with guilt, even though the jury accepts that the complainant is an honest witness.
…
Here, the only evidence given in relation to the assaults of 25 December 2019 and 9 May 2020 was that by [CM]. The ROI evidenced the defendant’s denials in relation to those allegations.
(footnote omitted)
The trial Magistrate noted that CM’s evidence as to counts 5 to 9 was contradicted by Ms Buzzacott’s evidence in several ways, but rejected Ms Buzzacott’s evidence as unreliable to the extent that it differed from that of CM.
The trial Magistrate then proceeded to make a finding as to CM’s evidence in the following terms:
I completely accept the evidence of [CM]. I thought her a truthful, honest and reliable witness. Her answers were appropriate, and she did not, in any way, embellish her evidence. I accept her as an accurate historian of events. I accept her account beyond reasonable doubt.
As can be seen from the trial Magistrate’s reasons for verdict, her Honour expressly warned herself that it was not sufficient to merely be satisfied that CM was an honest, credible witness ‘to prove an offence to the designedly exacting standard of proof beyond reasonable doubt’. Her Honour stated in her reasons that CM also needed to be ‘sufficiently reliable’. Her Honour made clear that the prosecution may fail to prove the offence beyond reasonable doubt if there is other credible evidence inconsistent with guilt, even where it is accepted that the complainant is an honest witness.
I consider the trial Magistrate’s reasons for implicitly rejecting the appellant’s denials in his ROI were not inadequate.
I would dismiss this ground of appeal.
Ground 2 – Error in rejecting the submission that CM’s injuries were inconsistent with her account
In her reasons for verdicts, the trial Magistrate rejected the defence submission that CM’s injuries allegedly sustained during the assaults on 25 December 2019 were inconsistent with her account. At trial, defence counsel submitted that CM’s evidence that she was hit ‘hard’ to the face by blows which were ‘forceful’ and ‘hurt’ were inconsistent with the nature and severity of the injuries she sustained. Defence counsel submitted that this inconsistency or implausibility in CM’s account should have caused the trial Magistrate to entertain a reasonable doubt on all counts.
In her reasons for verdicts, the trial Magistrate rejected defence counsel’s submissions as to the implausibility of CM’s account. Her Honour found that the injury received by CM to her eye, as shown in the photographs (Exhibit P5), was material support for CM’s account. The trial Magistrate noted that defence counsel did not put to CM that if she had been assaulted in the manner she alleged, she necessarily would have sustained greater injuries. Further, her Honour noted that defence counsel did not suggest what additional injuries CM should have received.
The appellant submits that the trial Magistrate was in error in rejecting defence counsel’s submissions on this topic, and that as a matter of common sense (without the need for any expert evidence to be called on the topic), CM’s account of the alleged assaults was inconsistent with the injury she sustained and should have raised a reasonable doubt on the part of the trial Magistrate on all counts.
I do not accept that submission.
CM’s evidence as to counts 1 to 4, which I have briefly summarised earlier, was that the appellant punched her five to six times to the face causing her to ‘blank out’. She said that she had a sore eye, which resulted in a black eye on the following day. CM said that she took photographs of the bruising to her eye and to her arm sometime between 1 and 4 January 2020 (that is up to 10 days later). CM said that a police officer, ‘Ben’, took photographs of ‘what was left of [her] black eye’ on 5 or 6 January 2020.
Brevet Sergeant Benjamin Treloar said that he conducted a forensic examination of CM on 7 January 2020 and that he took photographs of her injuries, which included a small bruise below CM’s right eye (Exhibit P5). He also took photographs of the pictures earlier taken by CM of her injuries on her mobile telephone (Exhibit P5).
Therefore, the photographs of the bruising to CM’s eye were taken by CM up to 10 days after the assault and by police up to 13 days after the assault (as shown in Exhibit P5). CM said that the photographs depicted what was left of the bruising which implies that there had earlier been more extensive bruising to her eye. That the bruising had faded and become less visible over a period of up to 13 days accords with ordinary experience and common sense.
As the trial Magistrate noted, CM was not cross-examined with respect to the appellant’s submission that her evidence as to the assault was inconsistent with the injuries she sustained. Had CM been given that opportunity, she may have been able to provide additional information regarding the extent of the injuries she sustained and the appearance of her injuries before the photographs were taken, particularly to her eye. In recognising that fact, the trial Magistrate was not reversing the onus of proof, nor speculating as to what CM might have said if questioned on the topic. The trial Magistrate was simply recognising that CM had not been provided with the opportunity to answer defence counsel’s criticism of her evidence on this point. Accordingly, there was less weight to be afforded to that submission.
The evidence of the severity of the assault arises from CM’s subjective description of having been hit ‘hard’ and the blows being ‘forceful’ and having ‘hurt’. There was no objective assessment of the assault from which it could be concluded that the nature of the assault could not have produced only a black eye.
I agree with the respondent’s submission that the assault as described by CM and the injuries attributed to it are not so far apart as to challenge CM’s account or the prosecution case. It is always a matter of degree. In the present case, there was nothing in CM’s description of the assault, or in the nature or extent of the injuries as described by CM or photographed by her and the police, which should have caused the trial Magistrate to reject any part of CM’s account. Rather, the photographs of CM’s injuries supported her account.
The appellant also submitted that the trial Magistrate in her reasons for verdicts found that the appellant struck CM twice to the head for count 1 and twice to the head for count 3. That is, the appellant struck CM a total of four times to the head. Yet CM said in her evidence that the appellant struck her a total of five to six times as he walked in the door, and two to three times when they were seated on the couch. The appellant submits that the trial Magistrate therefore did not have proper regard to the number of blows CM said she sustained before rejecting the defence submission that the injuries were inconsistent with her account. I do not accept the appellant’s submission in that regard. There was no other evidence to contradict CM as to the number of times she was struck to the head. In any event, I am satisfied that the trial Magistrate was not in error in rejecting the defence submission that CM’s injuries were inconsistent with her account, irrespective of whether she was struck four times or between seven and nine times to the face. Again, it is a matter of degree.
In submitting that the trial Magistrate ought to have entertained a reasonable doubt regarding the appellant’s guilt, the appellant relied upon the principles set out in Pell v The Queen (‘Pell’).[13] However, in this case, unlike in Pell, there is no independent body of evidence which is unchallenged or incontrovertible which necessarily calls into question CM’s evidence and the prosecution case.
[13] (2020) 268 CLR 123.
The appellant has not established that the trial Magistrate was in error in rejecting the submission that CM’s account was implausible by reason of the purported inconsistency between the assault as described by CM and the injury she received. Nor has it been established that the purported implausibility of CM’s account of itself, or in combination with the appellant’s denials and Ms Buzzacott’s evidence, meant that it was not reasonably open for her Honour to convict the appellant of any charge.
I would dismiss this ground of appeal.
Ground 3 – Rejection of Ms Buzzacott’s evidence
The appellant contends that the trial Magistrate erred in rejecting Ms Buzzacott’s evidence to the extent that it differed from the evidence of CM. Ms Buzzacott’s evidence was of significance because she was present at her home on 5 January 2020 and standing between the appellant and CM when the appellant allegedly assaulted CM (count 8). Ms Buzzacott gave evidence that she did not see the appellant strike CM to the stomach.

Ms Buzzacott also gave evidence that she did not earlier hear an anything drop on the wooden floor (count 5) and she did not see a cut to AB’s chin (count 7).
The trial Magistrate found that Ms Buzzacott’s evidence was unreliable because of two aspects of her testimony, namely: her failure to observe an injury to CM’s eye on 5 January 2020; and her incorrect statement that the appellant (her son) was aged 17 as at 5 January 2020. The appellant submits that neither matter was a sufficient basis for the trial Magistrate to reject Ms Buzzacott’s evidence.
I am satisfied that the trial Magistrate was not in error in finding that Ms Buzzacott’s evidence was unreliable.
As to Ms Buzzacott’s assertion that she did not see CM with a black eye, there was undisputed evidence that CM had an injury to her eye on 5 January 2020, as depicted in the photographs in Exhibit P5. The photographs included pictures taken by CM using her mobile telephone on a date between 1 January 2020 and 4 January 2020, that is before 5 January 2020. It is plain from the photographs that the injury was obvious, positioned on the front of CM’s face under her left eye. Further, CM was at Ms Buzzacott’s home that day for several hours; her visit was not fleeting. In those circumstances, there was no error in the trial Magistrate finding that Ms Buzzacott’s failure to observe the injury to CM’s eye undermined the reliability of her evidence. Indeed, that was a generous finding, given that she was the appellant’s mother and had expressed her support of the appellant at trial in declining to make an application pursuant to s 21 of the Evidence Act 1929 (SA) ‘because [her] son’s innocent’.
As to Ms Buzzacott’s mistake as to the appellant’s age at the time of the assault, her evidence was inextricably linked to the question of whether the appellant owned an Xbox gaming console on 5 January 2020, which was in turn relevant to the events which allegedly occurred at her home on that day (counts 7 and 8).
Ms Buzzacott gave evidence that she didn’t have an Xbox controller in her house on 5 January 2020 ‘[b]ecause Caleb was so young, he only turned 17, you know, we didn’t have them things. He only had a phone’. That is, Ms Buzzacott linked the appellant’s age with her recollection that he did not have an Xbox controller. As noted earlier, the appellant said in his ROI when it was alleged that on 5 January 2020, he had a fight with CM in relation to an Xbox controller, ‘What? Have I threw my Xbox controller at her? Every time I threw it at the fucken floor’. The appellant accepted that he had an Xbox controller at that time.
In those circumstances, the trial Magistrate was not in error in finding that Ms Buzzacott’s mistake as to the appellant’s age undermined the reliability of her evidence. Her Honour was not in error in rejecting the parts of Ms Buzzacott’s evidence which differed to CM’s account. I would dismiss this ground of appeal.
Conclusion
The appellant has not demonstrated any error in the Magistrate’s approach or reasoning. For the reasons given, I am not satisfied that any of the grounds of appeal have been made out. I therefore dismiss the appeal.