Cole-Crighton v Queensland Police Service

[2022] QDC 30

DISTRICT COURT OF QUEENSLAND

CITATION:

Cole-Crighton v Queensland Police Service  [2022] QDC 30

PARTIES:

COLE-CREIGHTON, Jemmah Lorraine

(Appellant)

v
QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO/S:

D26/21

DIVISION:

Appellate

PROCEEDING:

S 222 Appeal against Conviction

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

4 February 2022 ex tempore

DELIVERED AT:

Toowoomba

HEARING DATE:

4 February 2022

JUDGES:

Horneman-Wren SC DCJ

ORDER:

1.   Appeal allowed

2.   Set aside the convictions and penalty imposed on 23 August 2021

3.   A verdict of not guilty be entered in respect of the offence

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – INTERFERENCE WITH DISCRETION OR FINDING OF MAGISTRATE – where the appellant was found guilty after trial of assault – where identity or recognition of the attacker was in issue – where complainant’s evidence circumstantial and bystander’s evidence direct – whether the Magistrate’s reasoning in considering the complainant ‘credible and reliable’ was flawed – where the Magistrate failed to reconcile competing accounts of police witnesses – where appeal allowed.

COUNSEL:

Mr S Kissick for the Appellant
Ms E Fletcher for the Respondent

SOLICITORS:

Bouchier Khan for the Appellant
Director of Public Prosections for the Respondent

Introduction

1. On 23 August 2021 the appellant, after a short summary trial before a Magistrate, was convicted of one charge of common assault.  The alleged assault was that the Appellant pulled the hair from the complainant and hit her in the face with one or both hands.  Having been found guilty by the Magistrate, she was fined $750.  It was ordered that no conviction be recorded. 

2. She appeals against her conviction on grounds that the learned Magistrate failed to consider the risk associated with identification and recognition evidence, or otherwise gave insufficient reasons regarding identification or recognition. 

3. For the reasons which follow, which are not entirely reflective of the grounds raised, but which reflect the submissions advanced, the appeal should be allowed and a verdict of not guilty entered. 

   Nature of the appeal

4. The nature of an appeal under section 222 of the Justices Act 1886, being an appeal by way of rehearing, is that the appellate powers of the Court are to be exercised for the correction of error.[1] In Coal and Allied Operations Pty Ltd v The Australian Industrial Relations Commission Gleeson CJ and Gordon and Hayne JJ said:

   “Ordinarily if there has been no further evidence admitted and if there has been no relevant change in the law, a Court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision maker.  That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that unless there is something to indicate otherwise, the power is to be exercised for the correction of error.”[2]

   [1] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] 203 CLR 194 at 203 – 204, [14]; Allesch v Maunz (2000) 203 CLR 172 at 180, [23]; CDJ v VAJ (1998) 197 CLR 172 at 201 – 202.

   [2] Ibid.

5. In Fox v Percy Gleeson CJ and Gummow and Kirby JJ observed:

   “… the appellate Court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a Judge sitting alone, of that Judge’s reasons.  Appellate Courts are not excused from the task of weighing conflicting evidence and drawing their own inferences and conclusions, but they should always bear in mind that they have neither seen nor heard the witnesses and should make due allowance in this respect.”[3] 

   [3] [2003] 214 CLR 118 at 126 – 127, [25].

6. Their Honours went on to say:

   “If making proper allowance for the advantages of the trial Judge, they conclude that an error has been shown, they are authorised and obliged to discharge their appellate duties in accordance with the statute.”[4]

   [4] Ibid [27].

7. Further on, their Honours said:

   “But in every appeal, by way of rehearing, a judgment of the appellate Court is required both on the facts and the law.”[5] 

   [5] Ibid [29].

8. As to the conducting of a ‘real review’, in Robinson Helicopter Company Incorporated v McDermott  a Full Court of the High Court said:

   “The Court of Appeal conducting an appeal by way of rehearing is bound to conduct a real review of the evidence given at first instance and of the Judge’s reasons for judgment to determine whether that Judge has erred in fact or law.  If the Court of Appeal concludes that the Judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.  But the Court of Appeal should not interfere with the Judge’s findings of fact unless they are demonstrated to be wrong by incontrovertible facts or uncontested testimony or they are glaringly improbable or contrary to compelling inferences.”[6] 

   [6] [2016] 331 ALR 550 at [43].

9. In Lee v Lee,[7] Bell, Gageler, Nettle and Edelman JJ further explained:

   “The Court of Appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the Judge’s reasons for judgment to determine whether the trial Judge has erred in fact or law.  Appellate restraint with respect to interference with the trial Judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial Judge as a result of seeing and hearing them give their evidence.  It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.  Thereafter, ‘in general, an appellate Court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which, having being disputed, are established by the findings of the trial Judge.”[8]

   [7] [2019] 372 ALR 383 at [55].

   [8] Ibid, citing citing Warren v Combes [1979] 145 CLR 531 at 551.

   The Magistrate’s Decision

10. Because the learned Magistrate’s reasons are so brief it is convenient to recite them in their entirety at the outset:

    “In relation to this matter, it is said that Ms Cole-Crighton assaulted Shakira Leigh Decaux on the 4th of July 2020.  The complainant gave, in my view, a detailed account of what happened on that evening, and she identified Jemmah as being the person who grabbed her by the hair with force.  Her hair fell out and she was hit on the side of head (sic).  So I believe that the evidence given by her was both reliable and plausible.  So I do not think it is the case at all that her evidence could be regarded as being tainted by loss of memory.  It is certainly the case, I accept, that the doctor said in his notes and in his statement that there was poor recollection of events, and that may very well have been the case when she gave her account to the doctor.  But the fact of the matter is her evidence that she gave was, as I say, credible and reliable. 

    Mr Rafael gave evidence of at least one of the girls who attacked Jemmah.  He said that they were at the party on the bed.  Two girls came to attack Jemmah lying on the bed and identified one of the attackers as brunette, Caucasian with glasses.  So he did not give any evidence as to what the other girl was doing or who the other girl was.  So there is nothing there, I would suggest, would be (sic) inconsistent with the version of the complainant.  The two officers gave evidence.  There is nothing there I need to make any comment about, save to say that in my view the charge is proved beyond a reasonable doubt by virtue of the – largely the evidence of the complainant and I find her guilty of the offence.”[9]

    [9] Queensland Police Service v Jemmah Lorraine Cole-Crighton (Decision) (Magistrates Court Toowoomba, MAG-175776/20(6), Magistrate Osborne, 23 August 2021) (‘Decision Transcript’) 2.

11. In my view and for reasons I shall develop, these brief reasons demonstrate that the Magistrate misunderstood the evidence of Mr Rafael Roundhill, wrongly called Mr Rafael in the reasons.  Having misunderstood that evidence, his Honour failed to consider its inconsistency with the evidence of the complainant, Ms Shakira Decaux.  Indeed, the Magistrate wrongly concluded that there was nothing in Mr Roundhill’s evidence inconsistent with the version of the complainant.  Having failed to identify the inconsistencies in their versions, the Magistrate failed to consider those inconsistencies in concluding that the complainant’s evidence was credible and reliable. 

12. Further, his Honour failed to consider properly (or if he did, he failed to explain) the reliability of the complainant’s account of events given more than a year after they occurred and the account she provided to a doctor the day following the incident.  Further still, the Magistrate’s reasoning for finding the complainant was credible and reliable was circular and flawed.

    The Complainant’s Evidence

13. The complainant’s evidence was that in July 2020 she and a friend, Faith Nivano, had a house party.  At about 10.30 pm she was going to bed as she had to work the following morning.  In evidence-in-chief she said:

    “I was on Faith’s bed with Raf, Cofey Duncan and Talum.  I’m not sure of his last name.  It’s pretty long.  And then I thought it was one of the boys, like, leaning on my hair.  But it was Jemmah like pulling my hair and just like yelling.  And I stood up, grabbed like my hair and it was just all falling out.  And then I saw Lucy like come in with Molly.  All these other younger girls and Clair Chambers.  And they all just were yelling.  And then me and Raf got into the bathroom, but there wasn’t a lock on the bathroom.  The bathroom was in Faith’s room so it was just, yeah.  And then Lucy came in and king hit me in the eye and then someone pulled her out of the room and then Faith’s mum was trying to pull like – get all the girls out of the house – out of her house.  And I’m pretty sure she got hit in the process as well.  But yeah – and then I – yeah.  They were all just yelling and saying all this stuff and then I was getting death threats from like Clair Chambers, but – yeah.”[10]

    [10] Queensland Police Service v Jemmah Lorraine Cole-Crighton (Hearing) (Magistrates Court Toowoomba, MAG-175776/20(6), Magistrate Osborne, 23 August 2021) 4 – 5 (‘Hearing Transcript’).

14. Later the complainant said that Jemmah came in first, followed by Lucy and all the other girls.  She went on to explain further:

    “So she came in.  I wasn’t really looking at the door, so I was lying across the bed, I guess, and the door was kind of to your right.  She came in and grabbed me by the hair. And that’s when I like kind of hopped up because I was going to get like up the boys because I thought it was like Raf.  And then I looked up and she was there, just going off and yelling and stuff.”[11]

    [11] Hearing Transcript 6.

15. When asked to explain how her assailant grabbed hold of her hair, she said:

    “So she would had to, at least, grab like here.  It was on the right side of my head – but – yep – it was enough force to pull out the hair.  So - - -”[12]      

    [12] Ibid.

16. When asked if her assailant did anything else, she said: “I’m pretty sure she hit me at least along my ear.”[13]

    [13] Ibid.

17. She said that after this incident she went to the bathroom.  She said that she was accompanied into the bathroom by Raf and that they were the only ones in the bathroom until Lucy entered. 

18. When shown video recordings, the complainant identified both the appellant and Lucy.  The latter being the person: “In the black pants and white shirt with the glasses.”[14] The complainant also identified another person – Clair Chambers. 

    [14] Ibid 10.

19. Of events on the day following the assault, she said:

    “So I got up.  I was getting ready for work and – so I work at Livaso.  It’s like a jewellery store.  I was – I just got ready.  I didn’t do my makeup because I had a black eye and it was really painful to, like, apply any makeup, I guess,  and I went to work and that’s when things got really weird.  Like, I was just forgetting a lot of stuff.  We have, like, procedures in the morning to do certain things and I was just forgetting to do them.  I was looking – I was, like, cleaning, like, a jewellery rack and I, like, forgot that I was at work and I didn’t realise, like, where there was a massive line, like, holding up until I realised I was working and then I got one of the other girls that work there to come in earlier, just to cover me.  And I went with Faith and her mum down – to the hospital to get checked.  Yep.”[15]

    [15] Ibid 12.

20. When cross-examined, the complainant said that she had two Cruisers to drink earlier in the night at about 5 pm.  She confirmed that Raf, who she had referred to earlier in the evidence, was Rafael Roundhill.  She agreed that he saw the whole event.[16]  She agreed that Clair Chambers, who she had earlier identified, had brown hair at the top with bleached blonde ends.  She agreed that the Appellant would be described as blonde. 

    [16] Ibid 13.

21. It was put to the complainant that it was Clair who had hit her, not the Appellant.  To that suggestion she said:

    “No.  So it was Lucy, followed by – Jemmah, followed by Lucy.  So the blonde came in first, followed by the brunette.  And then the other girls.”[17]

    [17] Ibid 16.

22. She repeated that Raf went into the bathroom with her.  When it was put to her that her recollection of events had remained the same throughout the period since the incident, she said: “It’s been a good year and a bit, so there are a couple things, but I do remember it pretty clearly.”[18]

    [18] Ibid 17.

23. When it was put to her that she had told the doctor at the hospital that she had a poor recollection of events, she said: “Not at the time – but I said I had like memory loss throughout the day when I was at work.”[19]

    [19] Ibid.

24. It was again put to her that she had told the doctor that she had a poor recollection of events and she said: “At the – when I was at work, from when I woke up.”[20]

    [20] Ibid.

25. The exchange then continued:

    “When you were at the hospital with your friend Faith?   ---Mmm.

    Such poor recollection of events, in fact, that Faith had to explain to the doctor what had happened; is that the case?---So there was points where Faith had to say what had happened because - - -

    You’re right.  Keep going? ---Yep.  So she did have to mention things because it’s not every day you get bashed by two – two people.”[21] 

    [21] Ibid 17 – 18.

26. When it was put to her again that she had a poor recollection of events, she said:

    “No.  So I do remember everything that happened that night.  I did not have a full, like, I couldn’t really remember what happened at work.  Like, to this day I still can’t remember because we obviously have different people who is our regional during work.  I can’t even remember that and when we have to.  So throughout the day I can – like, I had only like a bit of memory through there, but I remember everything that happened that night.”[22]

    [22] Ibid 18.

27. The cross-examination concluded as follows:

    “I also put it to you that you couldn’t identify my client as the person who assaulted you, could you?‑‑‑Yes, because as soon as I got up off the bed I only saw Jemmah.

    I further put it to you that it’s equally plausible the person you identified as Clair could have assaulted you that night?‑‑‑No.  So Clair came in after – after Lucy had came in.  So that would pretty much be impossible just to see Clair before – like, if I had gotten up and there was only one other – like, one other female in the room and it was Clair there would had to have been Lucy and Jemmah as well in the room.  So it wasn’t Clair.

    Finally, I put to you that my client didn’t pull your hair or hit you in any way.  In fact, Lucy Halafia was the one who pulled your hair and was – has also pleaded guilty to the same accusation, possibly even Clair?‑‑‑So no.  That was Jemmah.  Lucy – Jemmah – Jemmah.  Yep.  Yep.  She was the only person I saw in that room once I had gotten up off the bed and she was the only other female in the room.”[23]

    [23] Ibid 18 – 19.

    Rafael Roundhill’s Evidence

28. Mr Roundhill confirmed in evidence-in-chief that he understood what he was being questioned about.  In his words: “It was about like how she got bashed.”[24]

    [24] Ibid 20.

29. He said that he: “…was at the bed and I just saw them like kind of fighting, shouting to each other.”[25]

    [25] Ibid.

30. And later: “So those two girls that came into Faith’s house and started attacking Shakira and pulled out her hair.  That’s what I could remember.”[26]

    [26] Ibid.

31. He described what he was doing as:

    “Well, I was talking to my mate and I had a few drinks while I was lying down on the bed with my mate and then I just saw what happened.”[27]

    [27] Ibid.

32. He was asked if he could remember who was lying on the bed and he said his name was Jeff Harvey. 

33. The Prosecutor asked whether there was anyone else in the room, to which he answered: “Not that I could remember.”[28]

    [28] Ibid 21.

34. The Prosecutor persisted, asking: “Was there anyone in the room when you were in the bed?”[29]

    [29] Ibid.

35. On this occasion he responded: “I don’t remember.”[30]

    [30] Ibid.

36. He said the fight or attack was: “Like two or three metres away from me.”[31]

    [31] Ibid.

37. When asked if he could remember who was involved, he said:

    “I don’t remember their names, but I could describe her appearance – she was brunette, Caucasian with glasses.  I can’t remember her height though.”[32]

    [32] Ibid.

38. He confirmed that the person being attacked was the complainant.  Asked if he could remember how many people went into the room, he answered:

    “In general, like, everyone that got involved in the fight or – well, there was two girls that I could remember and then everyone else just started trying to stop them – the fight.”[33]

    [33] Ibid.

39. Asked what happened after the fight, he said:

    “Well, after that fight the two girls got kicked out, but and then – yeah, Faith’s mum started crying and that’s what I could remember.”[34]

    [34] Ibid.

40. That concluded his evidence-in-chief. 

41. In cross-examination he said he consumed alcohol on that night.  When asked how many drinks he had, he said: “From what I could remember, I wasn’t really drunk.  I was just tipsy.”[35] He thought he had three or four drinks.  He confirmed that his memory was not impeded by having consumed those drinks and having been at that level of intoxication. 

    [35] Ibid 22.

42. Of the assault he said: “I saw it myself and I think someone has a video.”[36]

    [36] Ibid.

43. He confirmed that he saw the initial hair pulling and hitting of the complainant, and said:

    “Shakira herself got a proof on her – on a little baggie or something that has got pulled out when they were having a fight or something.”[37]

    [37] Ibid.

44. He was asked if the complainant then went to the bathroom, and he answered: “Not that I could remember.”[38]

    [38] Ibid.

45. He confirmed that he did not go to the bathroom with her.  He confirmed that he gave the same description – a brunette with glasses, to police in a statement made on 6 January 2021.  He agreed that this person was: “The main aggressor”[39] and was the person who initially pulled the complainant’s hair and hit her as well. 

    [39] Ibid 23.

46. Having given that evidence, the Magistrate intervened and asked: “So you say that the girl – the brunette with the glasses – sorry, what did she do?  Does she ‑ ‑ ‑“[40]

    [40] Ibid.

47. Mr Roundhill answered his Honour’s question: “Well, she started pulling Shakira’s hair and started hitting her.”[41]

    [41] Ibid.

48. The Magistrate added: “Right.  Okay.”[42]

    [42] Ibid.

49. To which Mr Roundhill responded: “Yep.”[43]

    [43] Ibid.

50. His Honour said: “Thanks.”[44]

    [44] Ibid.

51. There was no further cross-examination and no re-examination of Mr Roundhill.

52. In his address and in response to a submission by the Prosecution that the cross-examination of Mr Roundhill was about a second attack, the Appellant’s solicitor reminded the Magistrate that Mr Roundhill’s evidence had been about the entire attack, including the initial hair pulling and that it was all by a brunette with glasses. 

Patent inconsistency – unrecognised and unaddressed

1. Having set out those summaries of the evidence of each of the complainant and Mr Roundhill, the following observations can be made about his Honour’s reasons.  The statement in the first sentence of the second paragraph that: “Mr Rafael gave evidence of at least one of the girls who attacked Jemmah”[45] is incorrect.  The Magistrate must have been using “attacked” in the sense of a physical attack, as that was the allegation of assault he was trying.  So understood,  Mr Roundhill did not give evidence of at least one of the girls who attacked Jemmah.  Mr Roundhill gave evidence of one girl having attacked Jemmah. 

   [45] Decision Transcript 2.

2. The statement in the next sentence that: “He said that they were at a party on the bed”[46] which implies that Jemmah was one of those lying on the bed, is incorrect.  Mr Roundhill gave no evidence of Jemmah being on the bed.  He gave evidence that he and Mr Harvey were on the bed.  Indeed, he gave evidence that the attack occurred two to three metres from where he was.  That is where Jemmah was placed on his evidence. 

   [46] Ibid.

3. That this sentence does imply, wrongly, that Mr Roundhill’s evidence was that Jemmah was one of the persons on the bed, is apparent from the third sentence in which the Magistrate states, again incorrectly:

   “Two girls came to attack Jemmah lying on the bed and identified one of the attackers as brunette, Caucasian with glasses.”[47]

   [47] Ibid.

4. Mr Roundhill gave no evidence of anyone coming to attack Jemmah: “Lying on the bed.”[48]

   [48] Ibid.

5. The statement in the fourth sentence: “So he did not give evidence as to what the other girl was doing”[49] misconstrues Mr Roundhill’s evidence concerning the attack.  It is not that he did not give any evidence as to what the other girl was doing;  it is that he gave evidence that the brunette with glasses was the person who did the things alleged to have been done by the appellant.  Mr Roundhill had clearly given that evidence.  His Honour had him confirm it.  His Honour said, “Right” when the confirmation was given.  That is where his evidence stood and he was not re-examined. 

   [49] Ibid.

6. Those errors expose that the Magistrate’s conclusion that: “So there is nothing there, I would suggest, would be inconsistent with the version of the complainant”[50] is also erroneous.  To the contrary, the evidence of Mr Roundhill was entirely and patently inconsistent with the version of the complainant.

   [50] Ibid.

7. To those inconsistencies relevant to the errors already identified, can be added that the complainant’s version had her going into the bathroom accompanied by Mr Roundhill.  Mr Roundhill could not remember if the complainant went to the bathroom, but he remembered that he did not. 

8. Because of the errors of fact concerning Mr Roundhill’s evidence and his Honour’s erroneous conclusion as to consistency drawn from them, the Magistrate did not address the patent inconsistencies.  It is not, as was submitted for the respondent, that the Magistrate preferred the complainant’s evidence to that of Mr Roundhill where such inconsistencies existed.  His Honour failed to appreciate their existence at all and expressly found so. 

9. In order for the appellant to have been convicted on the complainant’s evidence, Mr Roundhill’s evidence needed to be discounted.  Reasons for preferring the complainant’s version needed to be identified and explained.  None of this occurred. 

10. On its face, there is no apparent reason to discount Mr Roundhill’s account.  There is nothing at all in the Magistrate’s reasons which suggest that he had reservations about Mr Roundhill’s reliability or credibility, having seen and heard him giving evidence.  Mr Roundhill said that his recollection was not affected by alcohol.  When he was asked about aspects of events which he could not remember, he readily said so. 

11. In my opinion there are several reasons why Mr Roundhill’s version of events might be preferred to the complainant’s.  First, the complainant’s version as to it being the appellant pulling out her hair is circumstantial.  She initially thought that the sensation she felt was from one of the boys, with whom she says she was lying on the bed, (contrary to the evidence of Mr Roundhill) leaning on her hair. After this occurred, she looked up and saw the appellant.  When asked how the appellant grabbed her hair, her response was clearly a reconstruction: “So she would had to, at least, grab like here.”[51]

    [51] Hearing Transcript 6.

12. The complainant had to reconstruct it because she did not see what occurred, and in fact thought at the time it was occurring, it was caused by an entirely different mechanism. 

13. On the other hand, Mr Roundhill’s version was that of an eye-witness.  He says he saw the events from start to finish.  The complainant, herself, agreed that he did. 

14. Secondly, when asked if the appellant did anything else, the complainant was equivocal: “I’m pretty sure she hit me at least along my ear.”[52]

    [52] Ibid.

15. On the other hand, Mr Roundhill was clear and consistent that it was the brunette with glasses who both pulled out the complainant’s hair and hit her. 

16. Thirdly, Dr Ea, in his notes from his consultation with the complainant the following day, clearly records: “Poor recollection of events.”[53] And: “Friend states that she had her hair pulled out.”[54]

    [53] Ibid 35.

    [54] Ibid.

17. The complainant’s evidence that she was referring to things at work that day that she could not recollect, does not sit well with other evidence.  If it was events at work that she could not recall then, rather than the attack, it makes little sense that it would be her friend who would provide the detail of the attack to the doctor.

18. Also, that explanation does not sit well with the complainant’s concession that there were points where her friend had to say what happened: “Because it’s not every day you get bashed by two people.”[55]

    [55] Ibid 18.

19. The complainant’s identification of the circumstance of being bashed by two people not being an everyday event as being the reason why the friend would need to provide some details, is entirely likely and understandable.  But it points to unreliability rather than reliability, particularly where there is direct contradictory evidence of an eye-witness not effected by the stressors of the events, at least not to the same extent as the complainant. 

20. The closest the Magistrate came to grappling with issues concerning the reliability of the complainant’s evidence was in his consideration of possible loss of memory and the doctor’s note about poor recollection.  The Magistrate accepted that she may well have had a poor recollection of events the day following their occurrence, but put that to one side, because her evidence was, so he considered, credible and reliable.  This reasoning is circular and flawed.  Having earlier observed that she gave a detailed account which caused him to believe that her evidence was reliable and plausible, he used that belief to put to one side evidence which he recognised suggested unreliability. 

21. That her account was detailed is not to the point.  The issue to be considered was whether those details were reliable. Relevant to that consideration was how it would be that she was able to give such a detailed account when 13 months earlier and within a day of the events, the Magistrate accepted that she may very well have had a poor recollection of them.  There was certainly no evidence before him which would have explained why there could have been such an improvement in her memory. 

22. The complainant may genuinely have believed the detailed account she gave in Court, such that she gave that version confidently and could not be shaken from it but that does not make it reliable when judged against other reliable independent evidence which contraindicates its reliability. 

23. The respondent, both at the trial and on the appeal, has submitted that what Mr Roundhill was describing in his evidence was not the attack alleged to have been by the appellant, but the subsequent attack by Lucy, who is also a brunette who wore glasses.  That submission cannot be accepted.  The evidence of the complainant and Mr Roundhill simply cannot be reconciled in that way.  The only assault of her by Lucy, of which the complainant gave evidence, occurred in the ensuite bathroom, not the bedroom itself.  It consisted of a king hit to the eye.  What Mr Roundhill described was an assault which occurred not in the bathroom, but in the bedroom, and which involved a clump of hair being pulled from the head of the complainant and her being hit.  Those are the acts said to constitute the assault with which the appellant was charged. 

24. Furthermore, that was not the basis upon which the Magistrate reconciled the evidence.  He reconciled it on the basis that Mr Roundhill had described only what one girl was doing, but had given no evidence as to what the other was doing.  His reconciliation of the evidence in that way was, for reasons already explained, erroneous. 

    Demonstrated errors

25. Having conducted a full review of the evidence before the Magistrate, it is clear that he fell into factual error and engaged in erroneous reasoning. 

26. On my assessment of the whole of the evidence, particularly that of Mr Roundhill called by the Prosecution, the case against the appellant was not proved beyond reasonable doubt.  She should have been found not guilty. 

    Disposition

27. I order that her conviction be set aside.  I order the fine be set aside.  I order that a verdict of not guilty be entered.