Chandler v Police - [2016] SASC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
CHANDLER v POLICE
[2016] SASC 42
Judgment of The Honourable Justice Doyle
31 March 2016
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT - CONVICTIONS - SETTING ASIDE AND REVOCATION
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
A Magistrate found the appellant guilty of assaulting his former domestic partner. The appellant appealed on the ground that the Magistrate erred in concluding that the evidence established the appellant’s guilt beyond reasonable doubt. The appellant also challenged the adequacy of the appellant’s reasons.
Held (per Doyle J), allowing the appeal:
1. The Magistrate’s reasons were inadequate.
2. The Magistrate erred in concluding that the evidence established the appellant’s guilt beyond reasonable doubt.
Criminal Law Consolidation Act 1935 (SA) s 20(3), s 85(2), s 85(3); Supreme Court Civil Supplementary Rules 2014 (SA) r 238(3), r 238(4), referred to.
Douglass v The Queen (2012) 86 ALJR 1086, discussed.
Liberato v The Queen (1985) 159 CLR 507; R v Lavery (2013) 116 SASR 242; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68; Taylor v Hayes (1990) 53 SASR 282; Fox v Percy (2003) 214 CLR 118, considered.

CHANDLER v POLICE
[2016] SASC 42
Magistrates Appeal.
DOYLE J:

The appellant, Ben Chandler, was found guilty of one count of assaulting his former domestic partner, Melissa Minerds, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
In this appeal against his conviction, the appellant contends that the Magistrate erred in rejecting his evidence and in finding the charge proved beyond reasonable doubt based upon the complainant’s evidence. He also challenges the adequacy of the Magistrate’s reasons.
Background
The appellant and complainant were in a relationship for approximately nine years. It came to an end in July 2014. They had two daughters, Aliyah (born 2008) and Madison (born 2013). Following the breakdown of the relationship the children lived with the complainant, but the appellant had regular access.
The events in question occurred at about 8.30 am on 2 December 2014 in the car park of Aliyah’s primary school in Morphett Vale. In accordance with their access arrangements the appellant had anticipated collecting both children from the complainant, taking Aliyah into school and then spending the morning with Madison. On that particular day it was the appellant’s birthday, and he said in his evidence that he had made plans for his morning with Madison. While the complainant accepted in her evidence that she knew it was the appellant’s birthday, she said that she did not know that the appellant had made any particular plans. For reasons which were not explored in the evidence, the complainant had left Madison with her (the complainant’s) mother.
The complainant and appellant parked their respective cars a few spaces apart. The complainant’s car was parked parallel to the appellant’s car so that the driver’s side of her car faced the passenger side of the appellant’s car. There was no car or other obstruction between the two cars.
As the appellant approached the complainant’s car, and he realised that the complainant had not brought Madison with her, he became angry and an argument ensued. The appellant accepts that during the course of that argument he grabbed the complainant’s phone and threw it on the ground, damaging it. He also accepts that he kicked the driver’s side rear door of her car and damaged it. He pleaded guilty to the second and third counts on the information, being charges of damaging property contrary to s 85(2) and s 85(3) of the Criminal Law Consolidation Act, relating to the damage to the complainant’s phone and car.
The complainant alleged that in addition to damaging the phone and car, the appellant pushed her, resulting in her falling to the ground. This allegation was the subject of count 1 on the information. The appellant pleaded not guilty to this count of aggravated assault, and denied making any physical contact with the complainant.
Having heard evidence from both the complainant and appellant, as well as another witness called by the prosecution (Lisa Fordham), the Magistrate found the allegation of aggravated assault proved beyond reasonable doubt.
The evidence
The complainant’s evidence was that as the appellant approached her he was swearing at her. She was holding her phone, but could not remember whether she was using her phone at the time. She was standing on the driver’s side of her car, trying to get Aliyah out of the car. She or Aliyah had opened Aliyah’s door, and Aliyah was slowly climbing out (or at least gathering her bag and undoing her seatbelt), when the appellant kicked the door shut. This left a dent in the rear driver’s side door.
The complainant said that she and the appellant had an argument. During that argument, the appellant pushed her, shoving her on the shoulders with two hands and causing her to fall back onto her bottom on the ground. The complainant had her phone in her hands, but dropped it when she fell. She was only on the ground for a short moment, but when she went to get up the appellant picked up the phone from the ground. He threw it onto the ground, smashing the phone into pieces.
The appellant then got Aliyah out of the car and took her with him, making a vulgar remark to the complainant as he walked off. The complainant picked up her phone, had a discussion with Ms Fordham and then left. The complainant said that while she fell onto a gravelly asphalt surface when she was pushed, she did not tear her clothing or break her skin.
The appellant’s evidence was that when he arrived Aliyah jumped out of the car to see him. He asked the complainant where Madison was. Other than saying that he could not have her today, the complainant then ignored the defendant and was playing on her phone. The appellant became angry. He snatched the phone from her hands and threw it hard onto the ground, breaking it. They argued about why Madison was not there. The driver’s side rear door of the car was open, and he kicked it shut. He denied pushing or otherwise making physical contact with the complainant, or that she dropped her phone. He said that his daughter was already out of the car when he threw the phone and then kicked the door shut. After the argument and then kicking the door, the appellant walked off with Aliyah.
The prosecution also called evidence from Ms Fordham, who was a mother of one of Aliyah’s school friends. Her evidence was that as she drove into the car park (and was about five metres away) she could see the complainant and appellant arguing near the former’s car. As she pulled up to park near the complainant’s car, the appellant grabbed the complainant’s phone out of her hand and threw it on the ground. As she got out of her car, the appellant was yelling at the complainant about Madison not being there. Aliyah was standing between the two of them. After he had finished yelling, the appellant took Aliyah into school. Ms Fordham went to comfort the complainant who was crying.
It is apparent from the above that there were discrepancies between the three witnesses both as to what occurred and the sequence in which it occurred. In summary, on the account of the complainant, Aliyah was in the car at all relevant times. The sequence of events was that the appellant first kicked the door, then pushed her and then smashed the phone. The appellant accessed the phone by picking it up from the ground. According to the appellant, however, Aliyah was already out of the car when he approached and was standing next to the complainant. He grabbed the phone first and then subsequently kicked the door. He accessed the phone by grabbing it from her hands rather than picking it up from the ground. He denied pushing the complainant. Ms Fordham said that Aliyah was standing between the complainant and the appellant and that she (Ms Fordham) saw the appellant grab the phone from the complainant’s hands and throw it onto the ground. She did not see any push or mention any kick.
The Magistrate’s reasons
The Magistrate began by reminding herself that the burden of proof was on the prosecution to prove the essential elements of the offence beyond reasonable doubt. The relevant offence was one of aggravated assault. The elements of the offence were an intentional application of force without lawful excuse against the complainant. The circumstance of aggravation was admitted, and the only issue in dispute was whether the appellant made physical contact with the complainant, as alleged by the complainant.
The Magistrate noted that the appellant had admitted counts 2 and 3, and hence the damage to the phone and the rear car door. However, the circumstances in which that damage occurred were in dispute.
The Magistrate recounted in some detail the complainant’s evidence. Her Honour then came to Ms Fordham’s evidence, stating that she presented as a credible witness and summarising her evidence. When addressing the appellant’s evidence, the Magistrate said that he gave evidence briefly and spoke very rapidly. Her Honour said that like so many nervous witnesses the appellant simply could not slow down his speech, and that she made “some allowances for that”. After setting out the effect of his evidence, the Magistrate noted that the appellant was cross-examined but “was not shaken” in that cross-examination.
Given the nature of the challenge to the Magistrate’s reasons, it is appropriate to set out in its entirety the operative passage at the conclusion of her Honour’s reasons:
Much is made by defence of the fact that Ms Fordham did not testify that she witnessed the push and that therefore her version is consistent with that of the defence. In my view it’s not quite that simple. It is sometimes appropriate to accept that a witness is accurate and reliable with some of their evidence and less reliable with other aspects of their evidence, depending upon the circumstances. In determining whether or not I am satisfied beyond reasonable doubt in this case I am particularly mindful that Ms Fordham has not testified that she saw a push where one might have expected her to, if it happened. However, I think it’s plausible that given that she was driving and had four children with her, and the windows were up, if there had been a push it may have occurred quickly without her noticing it. Melissa Minerds in my view presented as a credible and honest witness, although I have some reservations about her reliability concerning some aspects of her evidence. The three things that she says happened were being pushed, the mobile phone being broken and the car being kicked. The defendant admits two of them but not the third one. He was certainly angry and so one would not have been too shocked that despite never assaulting this woman before, within the heat of the moment he might have lost control and made physical contact with her. I listened to the evidence very carefully from Melissa Minerds and in my view I can be satisfied that she was pushed, notwithstanding the denials of the defendant, notwithstanding that the second prosecution witness didn’t see it. I believe Ms Minerds on this topic. I can be satisfied that the defendant deliberately struck the complainant in the way she alleges. I am not completely satisfied beyond reasonable doubt that the events occurred strictly in the sequence outlined by Ms Minerds but I am completely confident beyond reasonable doubt that the defendant knowingly and deliberately pushed her in the manner alleged. I find that he did it without lawful excuse. I find the aggravating feature is proven and I therefore find him guilty notwithstanding his denial. I find that his behaviour was aggressive and it included him yelling at her.
The appeal
The appellant seeks an extension of time within which to file his appeal. This is not opposed, and I will make an order extending time.
The appellant’s notice of appeal identified four grounds: (i) the verdict is against the weight of the evidence; (ii) the learned Magistrate erred by accepting evidence of the complainant when it was contradicted by an independent witness; (iii) the learned Magistrate erred by rejecting beyond reasonable doubt the evidence of the defendant; and (iv) the learned Magistrate failed to adequately explain why she rejected the evidence of the defendant.
The appellant sought permission on the hearing of the appeal to add a fifth ground of appeal that the Magistrate erred in law in failing to give adequate reasons for rejecting the evidence of the appellant. As this permission was not opposed, I will also make an order granting permission.
As the appellant acknowledged, there is significant overlap between the grounds of appeal. Oral submissions were advanced under two broad limbs. The first involved a challenge to the adequacy of the Magistrate’s reasons for rejecting the evidence of the appellant. The second involved a challenge to the Magistrate’s conclusion that the evidence established the appellant’s guilt beyond reasonable doubt. I propose to address the grounds of appeal under these two limbs. Both limbs require consideration of the proper approach to proof beyond reasonable doubt in the context of differing versions of events from a complainant and defendant – but with the added complication in this case of an independent witness whose evidence was in some respects corroborative of the evidence of the defendant and inconsistent with the evidence of the complainant.
Legal principles
In challenging the approach and reasoning of the Magistrate, the appellant relies particularly on Liberato v The Queen,[1] R v Lavery[2] and Douglass v The Queen.[3]
[1]    Liberato v The Queen (1985) 159 CLR 507.
[2]    R v Lavery (2013) 116 SASR 242.
[3]    Douglass v The Queen (2012) 86 ALJR 1086.
Each of these authorities emphasises the need in a criminal case to remain focused upon the finding that each of the elements of the relevant offence has been established by the prosecution beyond reasonable doubt. It is not sufficient for this purpose that the trier of fact (be it the jury, or the judge in the case of a trial by judge alone) rejects the defendant’s version of events. Nor is it sufficient that the judge or jury prefers the evidence of a prosecution witness or is satisfied (even beyond reasonable doubt) merely as to the truthfulness of that witness. It is necessary to consider whether, having regard to the evidence as a whole (which will include consideration of both the truthfulness and reliability of the prosecution witnesses) the prosecution has established each element of the relevant offence beyond reasonable doubt. The last of these cases, in particular, emphasises the need also for the judge’s reasons (in the case of a trial by judge alone) to make it plain that this approach has been followed.
In Liberato v The Queen, Brennan J (with whom Deane J agreed) said:[4]
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is common place for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence of the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is a “gross simplification”.
[4] Liberato v The Queen (1985) 159 CLR 507 at 515. While Brennan J was in dissent as to the outcome in that case, there is no reason to doubt his statement of principle. It has been applied by intermediate appellate courts subsequently, and by the High Court in Douglass v The Queen (2012) 85 ALJR 1086 at [13].
More recently, in R v Lavery¸ Peek J (with whom Nicholson J agreed) said:[5]
In any criminal case, the primary focus should always remain squarely on the prosecution evidence. The fundamental question for the jury is: “Has the prosecution proven the guilt of the accused of the particular charge beyond reasonable doubt?”
The summing up must clearly convey to the jury that their verdict should not be based upon the relative persuasiveness of the complainant and the accused but rather should be based upon a consideration of all of the evidence in the case; and that a verdict of guilty requires both the acceptance of the complainant’s evidence, and the rejection of the accused’s evidence, beyond reasonable doubt.
[5] R v Lavery (2013) 116 SASR 242 at [3]-[4].
Douglass v The Queen involved an appeal from a conviction for aggravated indecent assault following a trial by judge alone. The prosecution case was based entirely upon unsworn evidence of a child (CD) to the effect that she (when three years of age) was persuaded by the appellant (her grandfather) to hold his penis on an occasion when the two of them were alone in a shed. The appellant gave evidence describing his movements, and interactions with CD, on the day it was alleged the assault occurred. He denied that he had been inside a shed or that CD had touched his penis.
The trial judge did not in terms reject the appellant’s sworn evidence. His Honour was nevertheless satisfied beyond reasonable doubt that on the day in question the appellant had persuaded CD to touch his penis when he was urinating in a shed. The trial judge said that he was satisfied beyond reasonable doubt as to the “truthfulness” of CD’s evidence. The concluding paragraphs in his reasons were as follows:[6]
I warn myself of the caution I must take in determining whether to accept CD’s unsworn evidence and the weight to be given to it.
I bear in mind as well that the accused has given sworn evidence denying the allegations. Further, I do not find anything in his demeanour that assists the prosecution.
While bearing all these matters in mind, I am satisfied beyond reasonable doubt that the accused contrived to have CD touch his penis during or about the time he urinated in a shed. I am unsure of which shed. I find the incident occurred on or about 23 October …
[6] Douglass v The Queen (2012) 86 ALJR 1086 at [7].
The first issue considered by the High Court was the adequacy of the trial judge’s reasons given his failure to express or explain his rejection of the appellant’s evidence. The Court of Criminal Appeal, while accepting that there was a requirement that the trial judge provide reasons setting out the findings on the main grounds on which the verdict rests, had rejected this challenge to the trial judge’s reasons.
The Court of Criminal Appeal relied upon a statement by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd[7] to the effect that where the resolution of a case depends entirely on credibility, it may be enough that the trial judge has said that he believed one witness in preference to the other without going further and saying, for example, that the reason was based on demeanour. The Court characterised the appellant’s trial as a case of “word against word”, observing that it had been for the trial judge to assess the credibility and reliability of the evidence of CD and the appellant. The fact that there was no inherent weakness in the evidence given by the appellant, and that there was nothing in his demeanour that led the trial judge to reject his evidence, did not mean that the trial judge was not entitled to do so. The Court reasoned that having considered the evidence as a whole, and being satisfied of the truth and reliability of CD’s evidence, the trial judge necessarily rejected the denials by the appellant. The Court of Criminal Appeal thus dismissed the appeal.
[7] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280.

The High Court, however, allowed the appeal. It held that reliance upon McHugh JA’s statement in Soulemezis v Dudley (Holdings) Pty Ltd was misplaced, and that it was an error to view the appellant’s trial as reducing to a case of “word against word”. This characterisation failed to recognise that the resolution of a criminal case did not depend on whether the evidence of one witness was preferred to that of another. Rather it depended upon whether the evidence taken as a whole proved the elements of the offence beyond reasonable doubt.
The High Court reasoned that to dismiss the appellant’s complaint as to the sufficiency of the reasons on the footing that the trial judge’s acceptance of CD’s evidence necessarily carried with it rejection of his evidence was to overlook that the trial judge’s acceptance of CD as truthful was not inconsistent with the existence of a reasonable doubt as to guilt. Even if the trial judge was not persuaded by the appellant’s evidence, he could not convict unless satisfied that it was not reasonably possibly true.[8] The Court said that the failure to record any finding respecting the appellant’s evidence left as one possibility that the trial judge simply preferred CD’s evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt.[9]
[8] Douglass v The Queen (2012) 86 ALJR 1086 at [13], citing Liberato v The Queen (1985) 159 CLR 507 at 515 per Brennan J.
[9] Douglass v The Queen (2012) 86 ALJR 1086 at [14].
The second issue considered by the High Court in Douglass v The Queen was the sufficiency of the evidence to support the verdict of guilty. The Court noted that while the trial judge made a finding beyond reasonable doubt as to the truthfulness of CD’s evidence, his Honour had not addressed the distinct question of the reliability of CD’s evidence in the sense of its capacity to establish the commission of the offence to the criminal standard.
After referring to the criminal standard of proof as a “designedly exacting standard”, the High Court held that in the circumstances of that trial the Court of Criminal Appeal erred in holding that it was open to the trial judge to be satisfied of the reliability of CD’s statements, and in reasoning from that, despite the appellant’s denials, to a conclusion that his guilt had been proved beyond reasonable doubt. The High Court allowed the appeal, quashed the conviction and sentence, and directed the entry of a verdict of acquittal.
Adequacy of the Magistrate’s reasons
The appellant challenges the adequacy of the Magistrate’s reasons for rejecting the evidence of the appellant as a reasonable possibility.
The Magistrate did not expressly state that she rejected the appellant’s evidence (beyond stating that she was satisfied that the complainant was pushed “notwithstanding the denials of the defendant”), let alone give any reasons for doing so. Her Honour noted that the defendant was a nervous witness who spoke rapidly, but then said she made “some allowance for that”. Her Honour did not otherwise comment negatively upon the defendant’s evidence or his demeanour in giving evidence. That said, it is apparent from her Honour’s reasons that she implicitly rejected the appellant’s evidence, and that she did so by reason of her preference for the complainant’s evidence.
As Douglass v The Queen makes plain, even in cases which turn exclusively on two competing versions of the relevant events, a preference for the complainant’s version of events is not sufficient. The defendant’s evidence must be rejected as a reasonable possibility. The issue is not whether the complainant’s version is to be preferred, but whether it (in conjunction with any other relevant evidence) establishes beyond reasonable doubt each of the elements of the offence.
If the only issue here was the failure by the Magistrate to express her implicit rejection of the appellant’s evidence as a reasonable possibility, then it may be that this would not have involved error in the circumstances of this case. There was an error in Douglass v The Queen because the trial judge’s reasons did not make it plain that his Honour had appreciated the need to be persuaded of all elements of the offence beyond reasonable doubt and not simply that the complainant’s evidence was to be preferred over that of the defendant, and was truthful.
Putting Ms Fordham’s evidence to one side, this case might be distinguishable given that the Magistrate not only expressly accepted the evidence of the complainant (thereby implicitly rejecting the appellant’s evidence) but also in the very next sentence stated that she was “completely confident beyond reasonable doubt that the defendant knowingly and deliberately pushed her in the manner alleged”. In other words, while it remained possible on the trial judge’s reasons in Douglass v The Queen that he had overlooked or distracted himself from the ultimate question, the Magistrate’s reasons in this case make it plain that she did not make any such error.
The reasoning of the High Court in Douglass v The Queen might also be distinguishable on the basis that because the complainant in that case was a very young child and because there were some internal inconsistencies in aspects of her evidence, reliability was always going to be a significant issue and quite distinct from the issue of her truthfulness. On the other hand, in a case such as the present where the complainant was an adult giving evidence about whether or not she was pushed, the distinction between the truthfulness of the complainant and the reliability of her evidence is less stark.
The appellant’s counsel did not accept that either of these bases were sufficient to distinguish Douglass v The Queen. His submission was to the effect that in any case which turns entirely upon two competing versions of events, the trial judge must expressly address the reasons for rejecting the defendant’s evidence, and any such defect in the reasoning was not overcome by the trial judge announcing his or her conclusion in terms which address the ultimate issue of proof of the elements of the offence to the criminal standard of beyond reasonable doubt.
Ultimately, I do not need to resolve this issue because this was not a simple case involving two competing versions of events. There was a third (independent) witness, Ms Fordham, who gave an account which differed from the complainant’s version in several respects, and corroborated the appellant’s version in several respects. In circumstances where her Honour expressly found Ms Fordham to have “presented as a credible witness” it was incumbent upon her Honour to address the significance of these features of Ms Fordham’s evidence to her Honour’s consideration of the evidence of the complainant and the appellant, as well as to the ultimate issue of proof of the elements of the offence beyond reasonable doubt.
The Magistrate did address the first of these matters, namely that Ms Fordham did not see the push described by the complainant. Her Honour noted that sometimes a witness is accurate and reliable with some of their evidence and less reliable with other aspects of their evidence. Her Honour said that while Ms Fordham did not see a push where one might have expected her to have done so if it had happened, it was “plausible” that given she was driving, had four children with her and her windows were up, there may have been a push that occurred quickly without her noticing it.
I have some reservations about this reasoning. Given the complainant’s evidence that the push resulted in her falling to the ground, Ms Fordham would need to have been distracted for a few seconds to have seen nothing of the push. Ms Fordham was not asked and did not say she was distracted at any point. While the matters referred to by the Magistrate (together with Ms Fordham’s evidence that at one point she drove around or behind the complainant’s car) may have explained her being unsighted, this gap in Ms Fordham’s evidence nevertheless does raise some doubt in my mind about the complainant’s evidence that she was pushed.
More significantly, however, the Magistrate failed to mention or address Ms Fordham’s evidence that she saw the appellant take the phone from the complainant’s hands. This was consistent with the appellant’s evidence that he grabbed the phone from her hands, but inconsistent with the complainant’s evidence that the appellant picked the phone up from the ground after she dropped it when pushed. The Magistrate did state that she was not satisfied the complainant was correct about the sequence of events, but was nevertheless confident that she was correct about the push. However, the issue of how the appellant came to have the phone is not a matter of sequence. Nor was it an omission or gap in the evidence of the complainant that might be explained by inattention on her part. Rather, it was a positive observation as to a matter central to the complainant’s version of events, and which was linked to her evidence in relation to the push. On the complainant’s evidence the phone was on the ground because of the push. In my view, Ms Fordham’s evidence on this issue needed to be addressed and explained in assessing the evidence of the complainant and appellant, and in determining the ultimate question. While it is possible that either the complainant was mistaken and had retrieved the phone before the appellant took it, or that Ms Fordham was mistaken as to how the appellant accessed the phone, this was a matter that needed to be addressed.
Further, there was a significant discrepancy between the complainant’s evidence and Ms Fordham’s evidence as to the location of Aliyah during the altercation. The complainant said Aliyah was in the car, this being important to the logic of her version of events which involved the appellant kicking the car door shut while Aliyah was still in the car. Ms Fordham’s evidence was that Aliyah was out of the car at the time the phone was smashed. Not only was this inconsistent with the complainant’s evidence, but it also corroborated the appellant’s evidence on this issue. It was consistent not only with the appellant’s evidence as to the location of Aliyah, but also with the logic of the appellant’s evidence that he only kicked the door at the end of the altercation as he was leaving with his daughter (and hence when she was out of the car). Again, this was a matter that needed to be addressed by her Honour.
In summary, the Magistrate did advert to the consistency of Ms Fordham’s evidence with the defence case. Her Honour mentioned one inconsistency with the prosecution case (namely that she did not see the push), but did not mention the other two inconsistencies I have described. While the Magistrate’s view might have been that Ms Fordham or the complainant were simply mistaken about these matters, the Magistrate ought to have said so given the significance of these discrepancies to the matters in issue. Bearing in mind that the reasons need not be extensive, and conscious of the need not to over burden courts, it is nevertheless my view that the existence of these factual issues meant that her Honour fell into error in the circumstances of this case in not stating and explaining how she dealt with those inconsistencies, and whether and how she satisfied herself that despite these inconsistencies with the complainant’s version (and the tendency to corroborate the appellant’s version) she nevertheless satisfied herself that it was appropriate to reject the appellant’s version as a reasonable possibility, and to find beyond reasonable doubt that the appellant pushed the complainant.
As the Full Court of this Court explained in Papps v Police[10] and R v Keyte,[11] the adequacy of reasons will depend upon the circumstances of the case. The reasons need not be elaborate or extensive. However, as a general guide, it will usually be necessary to state the grounds which have led the Court to prefer one conclusion to another in respect of disputed questions of fact. This will often extend to explaining why the defence evidence and case on such questions has been rejected.
[10] Papps v Police (2000) 77 SASR 210 at [18]-[40].
[11] R v Keyte (2000) 78 SASR 68 at [41]-[54].
I am mindful that this is an appeal from ex tempore reasons given by the trial judge at the end of a short trial. I am also mindful of the need to ensure that trial judges are not over burdened, and that the relatively strict approach required by the High Court in Douglass v The Queen (as to the need to give reasons for rejecting a defendant’s evidence) may not be applicable in all cases where the only significant evidence is competing versions from the defendant and complainant. However, I consider that the issues which arose in this case by reason of Ms Fordham’s evidence meant that it was necessary for the Magistrate to address these matters, and their impact upon her Honour’s consideration of whether it was appropriate to reject the defendant’s evidence as a reasonable possibility and to find beyond reasonable doubt that the appellant pushed the complainant. It follows that the Magistrate’s reasons were inadequate because they did not address these matters.
Sufficiency of the evidence
Turning to the second limb of the appeal, the appellant challenges the sufficiency of the prosecution evidence to sustain the conviction.
This limb of the appeal is in a sense an extension of the first limb. The submission is essentially that when proper regard is had to the matters which the Magistrate did not address in her reasons, the conclusion is that the evidence simply did not enable the Court to be satisfied that it was appropriate to reject the appellant’s evidence as a reasonable possibility, or be satisfied beyond reasonable doubt that a push occurred.
In considering this limb of the appeal, it is significant that this is an appeal by way of rehearing. This requires that I 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 dismissal of the appeal that there was evidence which meant it was open for the Magistrate to reach the decision she did. If this Court, despite taking account of the Magistrate’s advantage in seeing and hearing the witnesses, reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the Magistrate, or if it is otherwise satisfied that it is proper to do so, remit the matter for a retrial.[12]
[12] Taylor v Hayes (1990) 53 SASR 282.
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 she may have had in making the findings. In particular, I should be mindful of the Magistrate’s advantage in assessing the credibility of a witness, and in so doing be guided by the principles set out in Fox v Percy.[13]
[13] Fox v Percy (2003) 214 CLR 118.
I am mindful of the advantage the Magistrate had in seeing and hearing the three witnesses give evidence. However, I am in the end not satisfied that the evidence was sufficient to establish beyond reasonable doubt that the appellant pushed the complainant.
There was no logical difficulty, or inherent unlikelihood, in the appellant’s version of events. The Magistrate did not suggest any reservations about his demeanour that went to his credit or reliability (as opposed to him speaking quickly on account of nerves). While the Magistrate was nevertheless entitled to prefer the evidence of the complainant over that of the appellant, this does not necessarily mean that the appellant’s version was negated as a reasonable possibility. In considering whether the appellant’s version should be rejected as a reasonable possibility, it was necessary to have regard to Ms Fordham’s evidence.
As mentioned, Ms Fordham’s evidence corroborated that of the appellant, and differed from that of complainant in three respects, namely, as to whether the appellant pushed the complainant, whether the appellant grabbed the phone from the complainant’s hands or picked it up from the ground, and whether Aliyah was inside the car or standing alongside her parents during the altercation. If the first of these was the only discrepancy, then it may well be that this would not have prevented a finding of guilt – essentially for the reasons given by the Magistrate and despite the reservations I have mentioned.
However, in my view, the second matter is particularly significant. Not only should it have been addressed by the Magistrate in her reasons, but it raises a doubt about the reliability of the complainant’s evidence. Unlike the first matter (which might simply have been a gap in the evidence rather than a necessary inconsistency), this issue involved an inconsistency in the accounts given by the complainant (on the one hand) and Ms Fordham and the appellant (on the other hand). Further, the inconsistency was linked to the complainant’s evidence as to the push, and necessarily raised doubt about the reliability of the complainant’s evidence as to the push.
The third issue – the location of Aliyah – is not as directly linked to the complainant’s critical evidence in relation to push. However, it retains some significance in an overall assessment of the prosecution case. The location of Aliyah during the altercation related to the different sequences of events given by the appellant and complainant. Ms Fordham’s evidence was that Aliyah was with her parents rather than in the car, which was not only consistent with the appellant’s evidence as to where Aliyah was, but was also consistent with the logic of the appellant’s evidence that he did not kick the door until he was leaving (and hence when Aliyah was already out of the car). Conversely, Ms Fordham’s evidence was inconsistent with the logic and sequence of the complainant’s evidence, namely, that the appellant kicked the door shut at the start of the altercation while Aliyah was still in the car such that she remained in the car throughout the altercation.
Bearing all of these matters in mind, and despite having due regard to the advantages enjoyed by the Magistrate, I am satisfied that the evidence at trial was not sufficient to permit a conclusion beyond reasonable doubt that the appellant pushed the complainant. It follows that the conviction and sentence in relation to count 1 must be set aside. Further, it is appropriate in the circumstances that I enter an acquittal in respect of count 1.
Costs
On the hearing of the appeal the appellant foreshadowed a submission, in the event that the appeal succeeded, seeking a departure from the general rule in relation to costs on an appeal such as the present one. The general rule under r 238(3) of the Supreme Court Civil Supplementary Rules 2014 (SA) is that costs follow the event and “in the ordinary case costs fixed at $500 plus the appeal filing fee will be awarded in favour of a successful applicant”. The appellant sought an uplift to an amount of $1,000 for his costs, essentially on the basis that it had been appropriate to retain counsel to conduct the argument and that his actual costs were well in excess of the amount provided for in the Rules.
I acknowledge that r 238(4) provides that the general rule that costs follow the event is subject to the discretion of the Court. While this does not expressly state that it is within the discretion of the Court to alter the amount at which costs are to be fixed, this is at least implicit in the relevant rule, and the reference in that rule to costs being fixed “in the ordinary case” at $500.

While accepting that I have the power to alter the sum at which costs are fixed in an appropriate case, in my view there is no reason here to depart from the figure of $500. There was nothing unusual in terms of the complexity of this appeal or the volume of material that was required to be considered. Nor was there anything else about this appeal which would warrant a departure from the figure of $500. I propose to award costs in that amount.
Conclusion
For the reasons set out above I make the following orders:
1.   Extend the time within which to file the appeal to 12 January 2016.
2.   Grant permission for the appellant to amend his grounds of appeal to include proposed ground 5.
3.   Allow the appeal.
4.   Set aside the conviction and sentence in respect of count 1 of the information dated 9 January 2015.
5.   Direct the entry of a verdict of acquittal in respect of that count.
6.   Respondent to pay the appellant’s costs of the appeal, fixed in the amount of $500 plus the appeal filing fee.