Devenport v Garnon - [2024] ACTSC 198

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Devenport v Garnon
Citation:	[2024] ACTSC 198
Hearing Date:	14 March 2024
Decision Date:	27 June 2024
Before:	Taylor J
Decision:	(1) The appeal is dismissed. (2) The conviction is confirmed.
Catchwords:	CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – Appeal against conviction – whether finding of guilt was unreasonable or could not have been supported having regard to the evidence – whether the Magistrate’s reasons were insufficient – whether the Liberato direction was misapplied – each ground not established – appeal dismissed – conviction confirmed
Legislation Cited:	Crimes Act 1900 (ACT), ss 26, 49 Evidence Act 2011 (ACT), ss 38, 39 Magistrates Court Act 1930 (ACT), ss 208-219
Cases Cited:	Acuthan v Coates (1986) 6 NSWLR 472; 24 A Crim R 304 Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 Bourke v Styche [2024] ACTSC 62 DL v The Queen [2018] HCA 26; 266 CLR 1 Director of Public Prosecutions (NSW) vIllawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 Garay v The Queen(No 3) [2023] ACTCA 2 Ji v Stone [2023] ACTSC 54 Lee v Lee [2019] HCA 28; 266 CLR 129 Liberato v The Queen [1985] HCA 66; 159 CLR 507 M v The Queen [1994] HCA 63; 181 CLR 487 O’Connell v McMennemin [2014] ACTSC 112 Poidevin v Coutts [2024] ACTSC 91 Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 Warren v Coombes (1979) 142 CLR 531; 53 ALJR 293 Wolter v Broomhall [2023] ACTSC 331; 106 MVR 54
Texts Cited:	Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (last updated Update 77, June 2024)
Parties:	Jamie Lee Devenport ( Appellant) Rafe Garnon ( Respondent)
Representation:	Counsel T Jackson ( Appellant) C Muthurajah ( Respondent)
Solicitors Bevan & Co Lawyers ( Appellant) Director of Public Prosecutions ( Respondent)
File Number:	SCA 53 of 2023
Decision Under Appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Lawton Date of Decision: 25 August 2023 Case Title: Garnon v Devenport Court File Number(s): CAN 1197 of 2022 CAN 2248 of 2022

TAYLOR J

Introduction

On 25 August 2023, the appellant was found guilty in the ACT Magistrates Court of the following charge:
(i)CC2022/2248 – common assault, contrary to s 26 of the Crimes Act 1900 (ACT) (the Crimes Act), carrying a maximum penalty of imprisonment for 2 years.
The offender was sentenced to a Good Behaviour Order for a period of 12 months. By way of an Amended Notice of Appeal, the appellant appeals against the conviction on the following grounds:
(a)The verdict is unreasonable or cannot be supported by evidence. The particulars of this ground are;
(i)his Honour erred in considering the evidence from Mr Scott Baker that was accepted in circumstances of Mr Baker’s evidence of having schizophrenia;
(ii)his Honour accepted evidence from Mr Baker that was inconsistent with other evidence given by Mr Baker, and did not resolve those inconsistencies;
(iii)his Honour erred in accepting any evidence from Mr Baker in the circumstances; and
(iv)in circumstances where Mr Baker’s evidence was so inconsistent that it should have been rejected, a Liberato direction would have resulted in an acquittal.
(b)That insufficient reasons were given as to why, in circumstances where the appellant’s evidence was credible, the offence was proved; and
(c)That the Liberato direction was misapplied.
For the reasons outlined below, the appeal is dismissed.

Proceedings in the Magistrates Court

The hearing took place on 10 August 2023. The appellant was legally represented and gave evidence.
In addition to adducing evidence from the complainant, Mr Kent, Mr Baker, Mr Hicks and Constable Rafe Garnon, the prosecution tendered photographs taken by police of the complainant, a photograph taken by Mr Baker of the complainant, questions and answers 5 and 11 of the transcript of a record of conversation between Mr Baker and police and a recording of the triple-zero call Mr Baker made.
During the hearing, the Magistrate determined that the evidence relied upon by the prosecution did not establish actual bodily harm, the offence the appellant initially faced. The Magistrate went on to find the appellant guilty of the statutory alternative, common assault: see s 49 of the Crimes Act. There is no complaint made about the approach taken to that aspect of the matter.
The Magistrate reserved his decision and delivered his reasons on 25 August 2023, finding the appellant guilty of common assault.

The prosecution case in summary

The alleged offending occurred in the early hours of 30 January 2022. The prosecution alleged that when the complainant was present at the residence of Mr Baker, the appellant arrived there with Mr Hicks and Mr Kent. The appellant was a close friend of Mr Baker’s and the housemate of Mr Baker’s former partner, Ms Anderson. The complainant had recently become an acquaintance of Mr Baker’s.
Mr Baker and Mr Hicks went outside to the courtyard of the residence to talk. The complainant, the appellant and Mr Kent remained inside the house. The appellant picked up a knife and, standing behind the complainant, held it to the complainant’s throat, telling her that she should not be at the residence. The complainant gathered her belongings and quickly left Mr Baker’s residence.
Mr Baker caught up to the complainant a few streets from his residence. She told him what happened with the appellant, and they both returned to the house. Mr Baker called the police.

The evidence

Evidence of the complainant

The complainant gave evidence that at about 4:30AM on 30 January 2022 she was napping with Mr Baker in the lounge room of his residence. She had met Mr Baker a couple of days earlier at a club and described their relationship as “casual” with no sexual component. The complainant said the appellant, Mr Hicks, and Mr Kent arrived at the residence at around 6:00AM. The complainant said she had previously met Mr Hicks, but she did not know the appellant or Mr Kent. The complainant said that after Mr Baker’s friends entered the apartment, they all sat down and talked. Mr Baker was sitting to her left; Mr Kent was next to Mr Baker. She described the appellant as sitting on a separate couch while Mr Hicks was wandering around the room.
The complainant said that 30 to 40 minutes later, Mr Hicks and Mr Baker left the lounge room to talk in the courtyard. The complainant estimated that about 5 to 10 minutes later, the appellant then joined them in the courtyard, before returning inside after spending about five minutes in the courtyard.
The complainant said that the appellant then walked past her to a table near the kitchen area, and picked up a pair of scissors and a knife. The complainant saw the appellant grab the knife but did not see her pick up the scissors. She explained that she then heard the appellant sharpening the knife and scissors together, before putting the knife up against her Adam’s apple. The appellant was standing behind the complainant at this time.
The complainant said the appellant held the knife to her throat, and told her that Mr Baker’s girlfriend lived with him and that the complainant had to leave. The complainant said the appellant told her that Mr Baker’s girlfriend would come and find her, identifying the exact words used as, “You need to leave or she’ll come and find you”. The complainant then told the appellant that she would leave but needed to get her things. The complainant estimated that the knife was held to her throat for under five minutes.
The complainant described the appellant pulling the knife away from her but remaining standing behind her. The complainant said she gathered her keys and wallet, not looking at the appellant.
The complainant described the knife as having a silver blade with a black handle. She indicated that the length was about 25 centimetres.
The complainant said that, at the time of the incident, Mr Kent was still sitting on the lounge on the left, fiddling with the things that he had in his backpack. The complainant said she did not see whether Mr Kent looked over at her and the appellant, and he did not say anything. The complainant could not see Mr Baker or Mr Hicks.
The complainant recalled that, as she left Mr Baker’s residence, she walked out through the sliding door and the courtyard, passing Mr Baker and Mr Hicks. She said that Mr Baker asked her what happened, but that she did not say anything.
The complainant walked towards the city. She said that she received messages from Mr Baker while she was walking, but that she did not reply until she stopped walking. She later met up with Mr Baker just before the Braddon petrol station. The complainant said that it was here she informed Mr Baker that the appellant “put a knife to my neck and told me to leave and that his girlfriend – they live together”.
The complainant said that she and Mr Baker then returned to Mr Baker’s residence, the others having left. Once there, she said Mr Baker called the police to report the incident. The complainant said that Mr Baker also took photographs of her neck, and told her that her neck was red. The complainant said that upon closer inspection, the skin on her neck was pierced from the knife. The complainant recalled that this injury took about five days to heal.
The complainant said that police then attended Mr Baker’s residence, taking additional photographs of her neck.
In cross-examination, the complainant clarified the nature of her relationship with Mr Baker, agreeing that their relationship was a “sort of casual friendship”, and that they would kiss on occasion. When it was put to the complainant that she had referred to Mr Baker as her “boyfriend” in the conversation she had with police, and maintained this throughout the interview, the complainant said she did so because she “was nervous and still shocked of what was happening”. The complainant clarified that, at the time, she did not consider Mr Baker to be her boyfriend.
The complainant said that she was not aware that Mr Baker was in a relationship with his girlfriend, Ms Anderson, and denied knowing a person of that name.
The complainant said that she did not remember the time that the appellant and Mr Kent arrived at Mr Baker’s residence. She confirmed she was “in and out of sleeping” on the couch at this time.
The complainant said she “didn’t physically see [the appellant] pick up the knife” but did see her walk to the table. The complainant said that the scissors would not have been on the table with the knife but were on the floor, as Mr Baker had previously used them to cut paper and left them there.
When it was put to the complainant that the sound she described as the knife being sharpened on the scissors could have been just the pair of scissors opening and closing, the complainant responded, “No. It was a loud noise”.
The complainant said that when the appellant held the blade to her throat, she could not see the blade, but she could see the handle. The complainant initially agreed in cross-examination that the blade was pressed to her for a period of less than five minutes. When asked whether the knife might have been at her throat for four minutes, the complainant said, “I’m not too sure. I was just more – I wanted to get out of there”. She later said that the knife was there for three minutes.
The complainant said she could not feel a single point of pain, agreeing instead that she felt a horizontal, ‘lined’ pain. The complainant said that after she and Mr Baker returned to his house to call police, she “couldn’t see a knife anywhere”. She said the police did not look for a knife.
The complainant did not agree that the appellant had gone outside to speak with Mr Baker and Mr Hicks before returning inside to chop cannabis with scissors. She also rejected the suggestion that at this point Mr Baker and Mr Hicks came back inside before going back outside again, and that it was at this time the appellant said to her, “‘You shouldn’t be here because this is [Ms Anderson]’s house too’”.
The complainant confirmed that she texted Mr Baker, “I’m not having a knife held to my throat” as she left following the incident. She agreed that the appellant was also known by the nickname “Scoots”.
In re-examination, the complainant said that when the appellant walked to the table, the complainant “just saw her hands moving around” and that “[t]here was a bunch of stuff on the table and with the knife”, clarifying that she “didn’t see her grab the knife, no”.
When the complainant was asked whether the appellant used the exact words, “You should not be here as it’s [his girlfriend’s] house too”, the complainant said that the appellant said, “that it was [Mr Baker] and his girlfriend’s house”. The complainant agreed that the appellant did not say the name of his girlfriend.

Evidence of Mr Kent

Mr Kent gave evidence at the hearing and told the Magistrate that he did not remember where he was at the time of the offending. When asked if he went to Mr Baker’s residence and whether the appellant was there, Mr Kent said that he did not recall as he “was pretty drug-influenced back then”. Mr Kent said he had no memory of a time when he attended Mr Baker’s residence and saw somebody holding a knife but said he may have seen somebody holding “like, a butter knife… to butter bread”.
The prosecution successfully made an application pursuant to s 38 of the Evidence Act 2011 (ACT) (the Evidence Act) because of the version of events Mr Kent had given to police on 2 February 2022.
The prosecution put to Mr Kent that he attended City Police Station and spoke to a police officer about an incident which occurred at Mr Baker’s home. Mr Kent denied any memory of this interaction with police. The prosecution put to Mr Kent the version he had given to police, as recorded in notes made by the informant of the conversation: “Kent told me that he was in the room when it happened and that he saw [the appellant] hold the knife to [the complainant]’s throat” and “she’s a crazy bitch”. Mr Kent denied having any memory of saying this and said, “I must have been off my head … because I was probably stoned off my head”.

Evidence of Mr Baker

Mr Baker said that he knew the appellant “very well”; she is his “best mate”. He said Mr Hicks is “one of [his] other good mates”. He said he did not know Mr Kent well, but he knew of him. Mr Baker said he met the complainant through Mr Hicks at a club in January 2022, and had been “sleeping with her” for five days when the incident occurred. He said he has not had contact with her since the incident occurred and that Ms Anderson was now his ex-girlfriend. Mr Baker said he lived with Ms Anderson at [redacted] Ijong St, Braddon, until she handed in her letter for the separation of the tenancy on 28 January 2022. They had broken up “about a month beforehand”.
Mr Baker told the Court he had applied for an Apprehended Violence Order against the appellant, the appellant’s mother and the appellant’s stepfather “because [he] was scared”. Mr Baker did not provide specific reasons for why he was scared, saying only “because” when questioned. When asked if anything had happened, Mr Baker replied, “No, nothing happened. I wasn’t there to see anything”. He clarified that “[i]t was more so to get away from [Ms Anderson]”, as “she was living with [the appellant], my best mate”.
Mr Baker recalled being in his living room in the early hours of the morning of 30 January 2022 with the complainant. He described being outside his residence with Mr Hicks and seeing the complainant run outside. Mr Baker said the complainant told him that the appellant “had a knife up to her throat” when he found her in Haig Park. When it was suggested to Mr Baker that he must have been “freaked out” when the complainant told him this, he replied “yes”, saying, “It worried me a little bit but like I was drinking that night beforehand. I was on drugs”. He went on to say, “I know for a fact that [the appellant] was also not sober”, clarifying, “[s]he was on drugs”.
When asked if the appellant had anything in her hands when she came out of the house after the complainant left the residence, Mr Baker said:
I couldn’t tell you, not right now. It’s been that long and I thought it wasn’t - I’m schizophrenic. I wasn’t very honest with my - myself as well at the time. I wasn’t really opening up to the fact that I was seeing things like I am now, like talking about it more so.
Mr Baker described the complainant’s demeanour as “weird” and “on edge” when she ran out of his residence, saying that he had never seen someone move so fast in his life. He said the complainant did not say anything to him.
After a successful application pursuant to s 38 of the Evidence Act to cross-examine Mr Baker, the prosecution tendered a record of conversation between Mr Baker and police on 30 January 2022 as well as a recording of a triple-zero call made by him on 30 January 2022. When asked if hearing the recording of the triple-zero call assisted his memory, Mr Baker said, “Not really. No”. Mr Baker said, “I might have been the one that spoke but I don’t believe I was the one that dialled”. He said that police attended in the “early morning, maybe. Yes”.
The following excerpt was read aloud to Mr Baker by the prosecutor from his interview with police on 30 January 2022:
They woke us up, sat here and talked for a little bit. Everything was fine. I went outside to talk about what happened earlier with [Mr] Hicks, and Scoots was out there too and he was pushing her around, around the wall, saying that she was going to flog my missus, [the complainant], saying that she was no good for me and that sort of stuff.
Mr Baker said he remembered the appellant saying to him that the complainant was not good for him but could not recall her saying that she was “going to flog [his] missus, [the complainant]”. Mr Baker did not agree that his memory would have been better an hour after the incident than it was as he gave evidence, explaining, “[c]onsidering [he] was on drugs and drinking that night beforehand”.
The prosecution then read to Mr Baker the following excerpt from his interview with police:
So, and then she walked inside and something happened. I’m not sure what. I was told by my partner that she had a knife put to her throat. There was one witness. It was [Mr] Kent. Then Scoots came out to me and, well, had scissors in her right hand that I knocked out of her hand and a knife in her left hand. I assume it to be the same knife she had to [the complainant]’s throat. She went – she was waving it around at me. I knocked it out of her hand again and she grabbed me around the shoulders and tried to push me out of my gate, out of my own house, and said, “Wake up to your fucking self”. And that was pretty much it. She – then I said, “Fucking move out of my fucking way. This is my house. Don’t you push me around in my own house,” and she’s like, “What the fuck are you going to do about it?” And then I seen (sic) [the complainant] run out of the house crying and I asked her what’s wrong and she’s, like, “I’m not having a knife held to my throat,” and then I was like “What the fuck, Scoots?” And then by the time I went back to look, make sure [Mr Hicks] was alright and [the complainant], Scoots and [Mr Hicks] had both left.
Mr Baker said he could not recall if the appellant had a knife in her left hand, saying he sees “multiple things on a daily basis”, but he did not recall seeing the knife.
In cross-examination, Mr Baker said that some of the events he could recall from 30 January 2022 were “very, very foggy” explaining that “some of it’s clear, some of it’s not”. He described the moment that the appellant came out of the sliding door as “foggy, very foggy”. Mr Baker agreed that he was more confident now that, when the appellant came out, there was not a knife, saying, “That’s correct. From the visuals I’ve now experienced”.

Mr Baker said once everyone had arrived at his residence, he recalled sitting in the lounge room “having a good yarn” for “a little bit longer” than half-an-hour. After this, he went outside with Mr Hicks to have a conversation because they were “going through like a bit of a difference with [their] friendship”. He could not remember if he went back inside or not after this. When asked if he remembered the appellant coming out, Mr Baker said, “Yes. Somewhat”. Mr Baker said he has “multiple versions of it in [his] head”. He could not recall if the appellant then returned inside the house. In none of his recollections could Mr Baker “see [the appellant] with a knife in her hand”.
Mr Baker could not confirm if the table was located behind the couch, as his house has been “in so many different, like rearrangements”. Mr Baker explained that he rearranges his house “two times a week” due to him smoking “crack”.
Mr Baker said he did not cut paper, but he would have cut up his weed. When asked if there were scissors on the kitchen table, he responded, “I don’t even know if there were scissors in the room, man”. Mr Baker recalled seeing a black-handled knife in his kitchen drawer, “but it wasn’t in anyone’s hand”.
In re-examination, the prosecution sought leave under s 39 of the Evidence Act to show Mr Baker the photo he took of the complainant on the morning of the incident. Mr Baker recognised the photo of the complainant’s neck and said that he took the photograph. He could not remember if he took the photo before or after the triple-zero call.

Evidence of Mr Hicks

Mr Hicks gave evidence that he attended Mr Baker’s residence on 30 January 2022 with the appellant. He remembered talking in the courtyard outside Mr Baker’s residence but did not recall who was inside the house at this time. He did not recall anything about the complainant’s attendance that night, except the moment of her leaving.
During cross-examination, Mr Hicks said that he did not remember seeing a knife lying around.

Evidence of Constable Rafe Garnon

Constable Garnon told the Court that he was on shift with Constable Fay Ghebar on 30 January 2022. He said that at about 7:15AM ACT Police Operations sent a radio transmission “that the [appellant] had held a knife to [the complainant]’s throat” and that “someone had come to the house and held a knife to [the complainant]’s throat and told her to get out of the house”. Constable Garnon confirmed that they attended Mr Baker’s residence at 7:20AM and that the complainant and Mr Baker were present when they attended.
Constable Garnon said he spoke with them “initially, collectively”. Constable Garnon said he observed “a faint, thin red line” on the complainant’s neck that “was sort of slightly… to the right but pretty much in the centre” of “the front of the neck”. Constable Garnon gave evidence that he took photographs of this mark on the complainant’s neck, which were tendered by the prosecution (Exhibit 1). He confirmed that Constable Ghebar conducted a record of conversation with Mr Baker; portions of that interview were tendered by the prosecution (Exhibit 3).
Constable Garnon gave evidence that at about 8:00AM he located the appellant at her residence, arrested her and conveyed her to the ACT Watch House, where she participated in a record of interview.
Constable Garnon gave evidence that he spoke with Mr Kent at 2:00PM on 2 February 2022 at the City Police Station. He said he “asked Mr Kent if he’d witnessed the incident”, to which Mr Kent responded with words to the effect of, “yes, that bitch is crazy”. Constable Garnon described Mr Kent declining to participate in a formal interview: “he told me that he doesn’t … speak to police essentially”. Constable Garnon said Mr Kent told him that he saw the appellant hold the knife to the complainant’s throat and that he made notes of his conversation with Mr Kent.
In cross-examination, Constable Garnon said that Mr Baker told him that the appellant left with the knife.

Evidence of the appellant

The appellant gave evidence that on the morning of 30 January 2022 she was at Mr Baker’s house. She said that, before this she “was at home drinking” with Mr Hicks. Ms Anderson was living at her house during this period due to “relationship issues” with Mr Baker. The appellant said that after a few hours of drinking, she and Mr Hicks walked to Mr Baker’s house. She said that she knew Mr Baker was awake because they had been on the phone to him. Once there, they knocked on the windows and doors. Mr Kent jumped the courtyard fence, and Mr Baker opened the sliding door to let them into the house. The appellant said the complainant was already at Mr Baker’s residence when she arrived, and that she had not met the complainant before their attendance at Mr Baker’s house.
After entering the house, the appellant said that she sat on an office chair. Everyone was talking while Mr Baker and Mr Hicks “were bickering”. After “half an hour”, the appellant said Mr Baker and Mr Hicks “walked outside to have a verbal… [a]bout some altercation or something”. She said she walked outside “a minute or two after, told them to get over it, you know, youse (sic) are friends, come back inside”. She said that the three of them then returned inside the residence.
The appellant then said:
…[A]bout, yes, three, four, five minutes later, [Mr Baker] and [Mr Hicks] walked outside again and I mentioned to [the complainant] that since I was under the belief that [Mr Baker] was with [Ms Anderson], so I mentioned to [Ms Anderson] you shouldn’t be here, it’s [Ms Anderson’s] house too, and she - I think she seemed shocked.
Emphasis added.
I note here that where the transcript records ‘Ms Anderson’, as italicised above, it is apparent from reading the entirety of that portion of her evidence that the appellant was in fact referring to the complainant. The complainant and Mr Baker’s former partner have very similar sounding first names.
The appellant said she was seated “in the office chair” when she said this to the complainant, who was on the couch, which was positioned “[d]iagonally across from her”. She described her tone as being “[s]toned but not aggressive”. She thought the complainant appeared “shocked and bemused” and said the complainant “didn’t ask anything, didn’t care about anything else, just shocked, got her things and walked out”. The appellant described thinking that the complainant did not understand that Mr Baker “had a girlfriend at the time or that someone would speak up”.
After the complainant left, the appellant said she “walked out the sliding door into the courtyard”, where Mr Baker stopped her. He asked her, “what did you do?”. The appellant said she told Mr Baker she did, “nothing, I told her that it was [Ms Anderson]’s house too” and said that she said something to Mr Baker to the effect of “you’re being a dickhead”, as she was under the impression that he was cheating. She said that she and Mr Baker then “had a little push, shove, and then I walked out of the gate”. She recalled that Mr Hicks followed her, and that she then returned home.
The appellant said that because Mr Baker changes the furniture in his house “all the time”, she does not remember if there was a table behind the couch. She said that she did not have a knife in her hand at any point and did not have any physical contact with the complainant.
The appellant said that she assumed the complainant and Mr Baker “were sleeping together” because “[t]hey were like touchy/feely on the couch”, and that she was unhappy about this because she is “a friend of both [Mr Baker] and [Ms Anderson] and [she doesn’t] believe in cheating”. The appellant said she thought the two were “still seeing each other” at the time, even though they were living apart. The appellant said that Mr Baker “was trying to get [Ms Anderson] back but … then he was with another girl”. She described the separation as “just a moment of break” and that she was stuck in the middle of her two friends. The appellant said she considered the complainant to be an obstacle for Mr Baker.
The appellant said she “was cutting up marijuana” at Mr Baker’s residence. When asked who smoked, she said, “I think I may have had one. [Mr Baker] would of. [Mr Kent] did”.
The appellant denied that she wanted the complainant out of the picture, saying instead that she “wanted her to know that [Mr Baker] has got a girlfriend”. The appellant wanted to tell the complainant that Mr Baker had a girlfriend, “hoping to achieve giving her knowledge and the rest is her decision”.
The appellant denied saying to Mr Baker that she wanted to “flog” the complainant. The appellant said that, as she tried to leave Mr Baker’s residence, Mr Baker tried to stop her, saying something to the effect of, “What happened? What’s going on?”, to which she responded with words to the effect of, “You’re being a dickhead”. Mr Baker was pushing her, so she pushed him to leave the residence.

The Magistrate’s decision

The reasons of the learned Magistrate extend to almost eight pages of the transcript and were delivered after the decision was reserved at the conclusion of all the evidence. The reasons include the standard directions applicable in a criminal hearing.
At the outset, the Magistrate identified an issue with respect to the reliability of some of the witnesses observing, “I should say that critically, some of the witnesses I found not particularly reliable, but I will come to that in due course”. He found the complainant to be “an impressive forthright witness”, and accepted the complainant’s evidence as to what she described the appellant did.
The Magistrate found he could place no weight on the evidence that Mr Kent gave in court.
The Magistrate found that Mr Baker was very reluctant to give evidence against the appellant, being “his best mate” with whom he “still has a very good friendship”. The Magistrate acknowledged that Mr Baker was quick to assert that his memory was affected by mental health issues.
Ultimately, the Magistrate rejected Mr Baker’s account “in as much as it was inconsistent with what he originally said both in the triple-zero call and the subsequent record of conversation” with police, accepting “that evidence as opposed to any evidence to the contrary that [Mr Baker] gave in court”.
The Magistrate found that the evidence of Constable Garnon was significant in terms of the evidence he gave of his encounter with Mr Kent and his record of what Mr Kent said to him. While Mr Kent had no recollection of the incident, the Magistrate found the spontaneous utterances Mr Kent made in response to Constable Garnon’s general enquiry about the alleged assault, recorded by Constable Garnon, to be compelling.
The Magistrate went on to extract portions of the evidence given by the appellant before concluding:
I have to say had the evidence before me been only [the appellant’s] and [the complainant’s] I would’ve had to grapple with the usual issues such as are often described as the Liberato direction. But ultimately there is other evidence before me which leads me to reject the account of the incident as given by the defendant.
The Magistrate specifically identified the following evidence as that which provided a basis to reject the appellant’s evidence:
(a)the evidence given by Mr Baker as to the complaint “he heard” from the complainant, which he then gave an account of both during the triple-zero call he made and in his record of conversation with Constable Ghebar;
(b)Mr Baker’s account to Constable Ghebar of the appellant’s behaviour before and immediately after the incident; and
(c)the spontaneous utterances of Mr Kent, made in circumstances where “he would not utter such a thing for any other reason other than it was simply that what he had observed”.
The Magistrate concluded:
When I look at the totality of the evidence it seems to me I am satisfied beyond reasonable doubt that the defendant assaulted [the complainant] by holding a knife to her throat and saying words to the effect of, “you shouldn’t be here”.

Determination

The standard of review

The Supreme Court’s jurisdiction and conduct on appeal from the Magistrates Court is governed by Div 3.10.2 of the Magistrates Court Act 1930 (ACT) (the MCA). This appeal is brought pursuant to ss 207-208 of the MCA and is by way of re-hearing: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 (Alexander). Pursuant to s 214 of the MCA, the Court must “have regard to the evidence given in the proceeding out of which the appeal arose and has power to draw inferences of fact”. Alexander at [18] confirmed:
[A]n appellant may succeed in an appeal under s 214 of the MCA by demonstrating that the Magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed. Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the Magistrate’s decision.
In Ji v Stone [2023] ACTSC 54 (Ji) at [153] and later in Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 (Alfred) at [37] Baker J considered the difference in approach where an appellate court is, by way of rehearing, assessing whether material legal, factual or discretionary error has been established and where an appeal asserts that a verdict is unreasonable. The latter, her Honour observed, requires the Court to “ask itself whether it thinks that upon the whole of the evidence it was open to [the tribunal of fact] to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen [1994] HCA 63; 181 CLR 487 at 493.
Justice Baker repeats in Alfred, coming as it did after Alexander, that there may be little difference in the practical outcome between the approach to specific error and the approach to examining an unreasonable verdict, having observed in Ji at [154]:
[W]hether applying the test in M v The Queen or applying “rehearing” principles in the court’s determination of whether factual error is established, the Court will be required to perform its own assessment of the evidence, but in doing so, the Court must also take into account any advantage that the tribunal of fact had in the proceedings below.
If error is established the Court is obliged to make its own findings and to formulate its own reasoning based on those findings: Alfred at [39] citing Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 at 558 [43].
In Alfred at [40], Baker J helpfully summarised observations from Alexander that I bear in mind:
(i)The onus is on the appellant to demonstrate that there is error in the Magistrate’s decision: Alexander v Bakes at [22], citing Allesch v Maunz [2000] HCA 40; 203 CLR 172 at 180; [23] and Lukatela v Birch [2008] ACTSC 99; 223 FLR 1 at [19].
(ii)It is incumbent on the appellant to identify the alleged error in the Magistrate’s decision in their grounds of appeal: Alexander v Bakes at [22], citing Carroll v The Queen [2009] HCA 13; 254 CLR 259 at [8]; R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [127].
(iii)The appellate court must observe the ‘natural limitations’ of proceeding on the record, noting the disadvantages of an appellate court in comparison to the trial judge, both in evaluating witness credibility, and in being deprived of the “feeling” of a case: Alexander v Bakes at [20], citing Fox v Percy at 125 [23]. See also Garay v The Queen (No 3) [2023] ACTCA 2 at [31].
(iv)Where an appellant identifies the ground of appeal as being that the verdict is unreasonable, the Court will proceed on the basis that the appellant challenges the Magistrate’s ultimate factual finding: at [23]. Where an appellant wishes to challenge an intermediate finding, such a challenge should be pleaded as a specific ground of appeal: Alexander v Bakes at [23].
The advantage of a Magistrate in the environment of a hearing, in particular where assessments as to the credibility of witnesses are required, was captured by McCallum CJ (with whom Collier J agreed) in Garay v The Queen(No 3) [2023] ACTCA 2 (Garay) at [31] when her Honour described the difference between a Court exercising appellate jurisdiction and a tribunal of fact as the “difference between reading a play and seeing it performed”.
Pursuant to s 218(1)(a) of the MCA, the Court may “confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from”.

The grounds of the appeal

It is convenient to deal first with the specific errors upon which the appellant relies.

Ground (b): that insufficient reasons were given as to why, in circumstances where the appellant’s evidence was credible, the offence was proved

As part of the task of analysing the Magistrate’s reasons, counsel for the appellant sought to make something of the period between the hearing of the matter and the delivery of the decision, submitting “the usual deference given to Magistrates in a busy list in terms of ex tempore judgments and slips that may occur, does not apply here”. Counsel further submitted that there was “an economy of his Honour’s reasons”, as the Magistrate did not “deal with the evidence of the appellant” and made “no findings of credit” besides the finding that the appellant gave evidence in a “frank and forthright manner”.
Whether delivered immediately at the end of a hearing or with some time for further consideration, the reasons of the Magistrate must be read fairly, as a whole and not painstakingly picked over with an eye overly sensitive to error. Whether ex tempore reasons or reasons after further reflection, the pressures of the Magistrates Court remain: Poidevin v Coutts [2024] ACTSC 91 at [100].
It would be counter to common experience of the Magistrates Court to approach the analysis on the basis that the Magistrate used the entire period between the conclusion of the hearing and the delivery of reasons to carefully perfect each line of his decision. The nature of the workload leaves little time for perfection and it has long been recognised that the pressures that attend to the operation of a Magistrates Court must be given due consideration by appellate courts: see Acuthan v Coates (1986) 6 NSWLR 472; 24 A Crim R 304 at 479 and Director of Public Prosecutions (NSW) vIllawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at 407 [15]. That said, the demands of the workload of a Magistrate do not relieve them of the requirement to expose their reasoning and demonstrate resolution of the matters that underpin the findings made: Bourke v Styche [2024] ACTSC 62 at [114].
In DL v The Queen [2018] HCA 26; 266 CLR 1 at 12 [32] the High Court held that what constitutes “adequate” reasons is informed by the nature of the jurisdiction which the Court is exercising and the matter that is the subject of the decision. There is no need for elaborate or lengthy reasons, though they must enable the losing party to understand why they lost: see Wolter v Broomhall [2023] ACTSC 331; 106 MVR 54 at 72 [64]. In O’Connell v McMennemin [2014] ACTSC 112 at [70]-[80] Refshauge J found that the obligation of a Magistrate, as part of the exercise of their judicial function, is to adequately state the findings of fact and reasons for decision so as to enable a proper understanding of the basis upon which the findings of guilt were made.
The hearing was not a complicated one. It was, in the end, a factual dispute about a short interaction between the complainant and the appellant. There were no significant legal issues for determination. Identity was not in issue. That the alleged conduct could constitute an assault was not in dispute. Accordingly, the task for the Magistrate was straight forward. The determination of the matter required the Magistrate, having observed all the witnesses, to consider the evidence and form a view as to whether the prosecution had discharged their burden.
The reasons of the Magistrate revealed engagement with that task, in my view consistent with the straightforward circumstances of the case.

After canvassing the evidence and identifying the extent of the factual dispute, the Magistrate makes plain with the following explanation why the appellant was found guilty in circumstances where the Magistrate considered that she gave “frank and forthright” evidence:
But ultimately there is other evidence before me evidence before me which leads me to reject the account of the incident as given by the defendant. They are the account given by Mr Baker as to the complaint he heard from [the complainant] and as he relayed it to both the officer – the person on the 000 call and secondly, in the account to Constable Ghebar and further, his account as he gave to Constable Ghebar as to the behaviour of the defendant immediately before and immediately after the incident.
Further, I also have the spontaneous utterances of Mr Kent in circumstances where it strikes me that he would not utter such a thing for any other reason other than it was simply that what he had observed. When I look at the totality of the evidence it seems to me I am satisfied beyond reasonable doubt that the defendant assaulted [the complainant] by holding a knife to her throat and saying words to the effect of, “you shouldn’t be here”.
In circumstances where the Magistrate traversed the evidence, identified the areas that required resolution and made findings as to the evidence he relied upon, the explanation extracted above sufficiently communicated the basis upon which the finding of guilt was made. While the Magistrate considered that the appellant gave “frank and forthright” evidence, it is clear that in light of the body of evidence in support of the account of the complainant, he determined that the evidence of the appellant could not be accepted.
I do not consider that in circumstances of the case the Magistrate’s reasons were inadequate. This ground has not been established.

Ground (c): that the Liberato direction was misapplied

The appellant submits that error has been established by the failure of the Magistrate to explicitly reject the appellant’s evidence. This submission can be readily dealt with by reference to that portion of the reasons extracted above at [92], which demonstrates that the Magistrate did explicitly reject the evidence of the appellant.
In oral submissions, the appellant advanced an argument that the use of the term “it seems to me” indicated that the Magistrate was not certain of the outcome and was engaged in a deliberation process of choosing between the evidence of the complainant and the evidence of the appellant. I reject that submission. The finding of the Magistrate was ultimately expressed in unequivocal terms demonstrating that he was satisfied beyond reasonable doubt as to the appellant’s guilt. The use of the phrase “it seems to me” was of no moment. It did not reveal that the outcome was the result of an erroneous reasoning process or of anything other than an application of the high criminal standard to which he specifically referred.

Was the Liberato direction otherwise misapplied?

The reference the Magistrate made to the “Liberato direction” (accepted to be a reference to Liberato v The Queen [1985] HCA 66; 159 CLR 507 (Liberato)) was, respectfully, somewhat cursory when he said:
I have to say had the evidence before been only [the appellant]’s and [the complainant] I would’ve had to grapple with the usual issues such as are often described as the Liberato direction.
The expression of the direction as extracted above is not an especially polished example of how the task of giving effect to it, when necessary, ought to be approached. The reference to Liberato should not be read in isolation. To do so would not be a fair reading, as is required of a Magistrate’s reasons: Garay at [138]. The same passage in Garay, in my view, stands as an endorsement of an approach that values the substance of the reasoning over the form of it, the substance being “necessarily informed by the issues in the case”.
At the outset of his reasons, the Magistrate reminded himself of the directions applicable to a criminal hearing, including that the appellant bore no onus and that the standard of proof was beyond reasonable doubt. No complaint is made about the sufficiency of those directions. The Magistrate’s reference to Liberato cannot be divorced from those other directions or from the expression of his reasons that come after it. The complaint is that the direction was misapplied, not that it was poorly expressed.
It is not the role of an appellate court to speculate or divine what a Magistrate may have meant. In this case though, speculation is not required when the reasons are read in their entirety. A fair reading of the reasons beginning, “I have to say” up until the finding of guilt demonstrate that the Magistrate was aware of the requirement to deal with the evidence of the appellant and the need to form a view as to whether her evidence could be accepted. As the appellant conceded, the Magistrate correctly indicated that if the only evidence in the prosecution case was that of the complainant, the appellant would be acquitted. This reference demonstrated his awareness that his task did not simply involve an assessment of the evidence he “preferred”, but rather a consideration of whether the evidence he accepted met the criminal standard of proof.
It can be accepted that the reference to Liberato was not in the terms that would be required if the direction were being given to a jury. It can also be accepted that the experienced Magistrate was familiar with the principle, having specifically referred to it and it being applicable in every instance an accused person gives evidence in their trial or relies on a version in an interview with investigating police.
The Judicial Commission of New South Wales records the terms of a Liberato direction to be given in this way:
First, if you believe the accused’s evidence you must acquit.
Second, if you find difficulty in accepting the accused’s evidence but think if might be true, then you must acquit.
Third, if you do not believe the accused’s evidence then you should put it to one side. Nevertheless the question will remain: has the Crown, upon the basis of evidence that you do accept, proved the accused’s guilt beyond reasonable doubt?
A reading of the reasons of the Magistrate as a whole reveal that he correctly applied the substance of that direction. The reasons of the Magistrate immediately after the reference to Liberato are critical. They expose that the Magistrate determined that he could not accept the appellant’s version and that based on the evidence he did accept, he was satisfied of guilt to the requisite standard. This is an acceptable application of the task in which the Liberato direction obliges a tribunal of fact to engage.
It cannot be that the Magistrate was obliged to consider the appellant’s evidence in isolation such that once he determined her to be a “frank and forthright” witness he was necessarily unable to reject her account. Such an approach would render “frank and forthright” evidence that was nonetheless objectively inaccurate or undoubtedly fabricated, incapable of rejection. That the rejection of the appellant’s evidence occurred by reference to the evidence in the prosecution case that the Magistrate had determined was reliable does not reveal error. Rather, it reveals the very nature of the task before the Magistrate.
The evidence of the appellant was in direct opposition to the prosecution case where it concerned the act of holding a knife to the complainant’s throat. The appellant denied holding a knife at any time. The Magistrate was obliged to consider what he referred to as the “totality” of the evidence. A consideration of the body of evidence led him to the view that the appellant’s version could not be accepted. Having so determined, he was satisfied that the prosecution evidence he accepted established the offence to the requisite standard. It necessarily follows, considering the assessments the Magistrate made of the evidence, that he was therefore satisfied that there was no reasonable possibility that the appellant’s version “might” be true.
The appellant identifies specific omissions in the Magistrate’s reasoning to establish the misapplication of the Liberato direction.
The omission relied upon is the Magistrate failing to “give any reasons why the complaint evidence to Mr Baker and the utterance by Mr Kent proved the offence, and lead to the rejection of the evidence of the [appellant]”. This submission relies on a piecemeal approach to the reasons of the Magistrate.
The evidence of the complainant was assessed by the Magistrate early on in his reasons, with a finding made that she was “an impressive, forthright witness” and further, that he accepted her evidence. This finding early in the reasons does not establish that having accepted the complainant’s evidence the Magistrate required the appellant to disprove it. Rather it demonstrates that the Magistrate was required to set his reasons out in some kind of structure and uncontroversially dealt with the prosecution evidence first, before moving to the appellant’s account.
The Magistrate was entitled to consider the evidence that supported the complainant’s version when contemplating whether the appellant’s version could be accepted or might be true. Mr Baker’s evidence went beyond that which might be categorised as “complaint” evidence. Mr Baker’s evidence included direct evidence that went to the proof of the offence alleged and it is to his evidence I now turn.

The evidence of Mr Baker

As to a consideration of the evidence of Mr Baker is included as part of the consideration that follows of whether the verdict was unreasonable. I need not repeat the analysis of Mr Baker’s evidence below and adopt it as part of my assessment of this ground of appeal.
The appellant submits that the complaint evidence of Mr Baker could only be considered in the context of a credibility assessment of the complainant and not used as evidence to discredit the appellant. I disagree. Two matters of significance were contained in the contemporaneous accounts of Mr Baker that were directly relevant to the version of the appellant. First, Mr Baker’s direct observation that the appellant had a knife in her hand immediately after the assault. The appellant denied ever having a knife in her hand at any time during the incident. Second, Mr Baker’s direct observations of the behaviour of the appellant, including that she said she wanted to “flog” the complainant. The appellant generally denied any aggressive behaviour, including that she threatened to “flog” the complainant. She did accept that she may have pushed Mr Baker and used a “stern tone” with the complainant. These two matters were referenced by the Magistrate during the course of his reasons.
It should also be observed that even if the evidence of Mr Baker only went to the credibility of the complainant, the Magistrate was entitled to rely on it for that reason alone. Though the Magistrate did not do so, he was entitled to make the finding he did on the evidence of the complainant alone. That there was evidence in support of the complainant’s version was a matter the Magistrate was entitled to take into account when assessing the plausibility of the appellant’s account of what occurred.
Undoubtedly the evidence of Mr Baker as to the complaint made to him by the complainant, went to her credibility. It was also evidence, once admitted, capable of proving the truth of what the complainant alleged. The complaint evidence was strong once the evidence of Mr Baker contained in the version he gave to police at the scene and the triple-zero call was accepted. It was a complaint made almost immediately, contained specific detail of the alleged conduct and included observations made by Mr Baker of the complainant, consistent with the conduct she alleged.
There was no error in the way the Magistrate dealt with the evidence of Mr Baker in assessing the evidence of appellant or in his determination that guilt had been established to the requisite standard. In my view, the Magistrate was correct in the way he approached the evidence of Mr Baker.

The evidence of Mr Kent

The appellant submitted that the Magistrate erred by placing weight on the evidence of Mr Kent. The reasons of the Magistrate demonstrate that he dealt carefully with the evidence of Mr Kent and found that the evidence he gave in the proceedings was of no real assistance. This left the representation attributed to him by Constable Garnon in the days after the incident occurred. It was this evidence the Magistrate relied upon, in my view properly so.
Constable Garnon was not challenged as to the accuracy of the notes he made contemporaneous to the conversation he described having with Mr Kent when Mr Kent attended the police station for an unrelated purpose. Those notes recorded Mr Kent as saying that he was in the room at the time the incident with the appellant and the complainant occurred, and that he saw the appellant hold a knife to the complainant’s throat. The appellant contended that the Magistrate left unexplained why he accepted Mr Kent’s representations as recorded by Constable Garnon in circumstances where Mr Kent said that he “was probably stoned off [his] head” if that is what he said to police.
There were no questions asked of Constable Garnon as to any observations he made of Mr Kent during his interaction with him that might have supported Mr Kent’s suggestion that he was affected by illicit substances when he said those words to Constable Garnon. Constable Garnon did not describe anything about his interaction with Mr Kent that indicated concern about Mr Kent’s state of mind. Indeed, that Constable Garnon contemporaneously recorded the statements and asked Mr Kent if he would provide the information in a formal statement is itself an indication that Constable Garnon placed some weight on the version Mr Kent gave.
On all accounts, Mr Kent was in the room where and when the incident occurred. On any view, the evidence he gave in the proceedings was of little value. That said, there are three things he said of some relevance. First, Mr Kent did not deny an interaction with Constable Garnon. Second, Mr Kent did not know the complainant. Third, the appellant was a friend he had known for 18 months to 2 years.
The Magistrate formed the view that Constable Garnon’s evidence as to the contents of the interaction with Mr Kent was evidence upon which he could place “significant” weight. The Magistrate described the statements of Mr Kent as “spontaneous utterances”, which in the context of the reason for his visit to the police station being unconnected to the allegation against the appellant, was an accurate description. The Magistrate reasoned that he was satisfied he could rely on those utterances because, effectively, it made sense that the only reason Mr Kent would utter them was because they reflected what he had in fact observed.
The finding made by the Magistrate in relation to Mr Kent’s evidence was open and in my view, correct, based on the following factors:
(a)There was no challenge to the accuracy of the statements attributed to Mr Kent;
(b)The relatively short period between the incident and the statements made by Mr Kent about what he saw;
(c)The reason for Mr Kent’s visit to the police station was unconnected to the incident and his version was in that sense, “spontaneous” and unlikely to be contrived or rehearsed;
(d)The absence of any connection between Mr Kent and the complainant such that he might be invested in supporting her version; and
(e)The absence of evidence undermining the reliability of the representations except that offered by Mr Kent himself that he was “probably” stoned.
The appellant’s complaint that the Liberato direction was misapplied has not been established. There was no error in the approach of the Magistrate. The Magistrate was right to assess the account of the appellant by reference to the prosecution evidence, which included the evidence of Mr Baker and Mr Kent. Having done so, it can only be that their evidence, once accepted, was relevant to an assessment of whether the prosecution had established the offence. The Magistrate was satisfied based on the evidence he accepted that the offence was proved. This approach was entirely conventional.

Ground (a): The verdict is unreasonable and cannot be supported by the evidence

The appellant relied on four particulars to establish that the Magistrate’s verdict was unreasonable and cannot be supported by the evidence:
(i)His Honour erred in considering the evidence from Mr Baker that was accepted in circumstances of Mr Baker’s evidence of a condition of schizophrenia;
(ii)His Honour accepted evidence from Mr Baker that was inconsistent with other evidence from Mr Baker, and did not resolve those inconsistencies;
(iii)His Honour erred in accepting any evidence from Mr Baker in the circumstances; and
(iv)In circumstances where Mr Baker’s evidence was so inconsistent, it should have been rejected, a Liberato direction would have resulted in an acquittal.

The evidence of Mr Baker

This ground relies on the assessment made by the Magistrate as to the reliability and significance of the evidence of Mr Baker.
For the reasons that follow, it was open to the Magistrate to rely on the version Mr Baker gave contemporaneous to the incident. Further, it was open to the Magistrate to determine that Mr Baker’s asserted difficulties with recollection in the witness box were the result of his close relationship with the appellant rather than the product of his purported mental illness. The inconsistencies, such as they were, in Mr Baker’s evidence, were reconciled in the decision of the Magistrate. Once reconciled, it was open to the Magistrate to rely on the portions of Mr Baker’s evidence he assessed to be reliable. In my view, the Magistrate was right to conclude as much.
Further, if I am wrong in my assessment of the correctness of the Magistrate’s approach to the evidence of Mr Baker, and Mr Baker’s evidence ought to have been rejected, a Liberato direction would not have resulted in an acquittal.

Particular (i): schizophrenia?

The appellant contends that the Magistrate erred by accepting the evidence of Mr Baker because of the evidence about Mr Baker having schizophrenia.
The substance of the evidence in relation to Mr Baker’s schizophrenia came only from Mr Baker himself. There was no medical evidence. Neither the history nor manifestation of the purported diagnosis were explored in any significant detail. There was no evidence as to whether Mr Baker was in receipt of medication either at the time of the incident or at the time of giving evidence.
Mr Baker explained that he “sees multiple things on a daily basis”. Despite that description there was no evidence, independent of his own description of the incident and his illness, that Mr Baker was “seeing things” at the time of the incident.
Mr Baker agreed, in response to questions from the prosecutor after a successful application pursuant to s 38 of the Evidence Act, that when he spoke to police on the night he was trying to tell the truth. He readily agreed in cross-examination from the appellant’s lawyer that it was “very likely” that he was experiencing “hallucinations” at the time the incident occurred. Apart from a suggestion that this was a basis to doubt the contemporaneous account given by Mr Baker, there was little exploration as to the nature and extent of the purported diagnosis.
The Magistrate specifically referred to Mr Baker’s assertions in relation to the influence of his “mental health issues” (which can only be a reference to Mr Baker’s schizophrenia) on his reliability stating:
Again, he didn’t recollect that. He was quick to assert that he had mental health issues which affected his memory. And indeed, in cross-examination, very quickly adopted questions put to him that his memory may, in fact be infected, for want of a better term, by his mental health issues.

The Magistrate found, contrary to Mr Baker’s asserted difficulty regarding recollecting the events because of his mental health, that Mr Baker “clearly had an awareness and recollection” of the photograph of the complainant before it was shown to him during the course of his evidence. The transcript of Mr Baker’s evidence supports this observation. Further, the Magistrate found it was “odd” that Mr Baker disagreed with the proposition that his memory was better at the time of the incident. The Magistrate was entitled to consider these observations as he did, that is, they were “consistent with [Mr Baker’s] reluctance to give evidence against his friend”.
These were findings clearly open to the Magistrate in circumstances where Mr Baker disclosed a close relationship with the appellant, describing her as his “best friend”. Further, that the only evidence as to the significance of Mr Baker’s schizophrenia came from Mr Baker himself, provided a basis upon which to conclude that his evidence in relation to it was in service of a desire to assist the appellant. That is, his schizophrenia strengthened Mr Baker’s suggestion that he was not a witness who could be relied upon in circumstances where the appellant was his “best mate”. Mr Baker did not identify any mental health issues to investigating police when he provided a version to them. The Magistrate’s observation that Mr Baker was “quick” to assert his mental health issues is borne out in the transcript where Mr Baker readily adopts the suggestions put to him in cross-examination from the appellant’s lawyer targeting his reliability.
To the extent that the evidence raised Mr Baker’s schizophrenia as a basis to doubt the reliability of the account given by Mr Baker to police on the night and in the triple-zero call on the night, it was not supported by any other evidence. Significantly, there was no other evidence from attending police, the complainant, or the appellant as to any observations made of Mr Baker at the time of the incident consistent with him experiencing hallucinations or “seeing things”. The versions he gave close in time to the incident were coherent. They were not inherently fanciful or incredible. The aspects of his evidence undermined by the suggestion that he was seeing these were those aspects particularly incriminating for the appellant, for example that he saw her come out to the courtyard with a knife in her hand.
The contemporaneous out of court version provided by Mr Baker was consistent with the complainant’s account of the incident. The Magistrate found as much, including that the description of the knife Mr Baker gave to police matched that which was given by the complainant to police.
The Magistrate was required to deal with the specific detail included in the version Mr Baker gave to police close in time to the incident, consistent with the complainant’s version and the effect of Mr Baker’s evidence in the proceedings. Of significance is that Mr Baker, while retreating from an account where he saw the appellant with a knife in her hand immediately after the assault was said to have occurred, did not retreat from the complainant telling him that the appellant had held a knife to her throat.
The Magistrate specifically recorded his observation that one of the first things Mr Baker offered as part of his evidence was that the appellant was his “best mate”. This observation was connected to the Magistrate’s finding about Mr Baker:
[H]e was very clearly reluctant to give evidence against the person he described as his best mate. He first indicated in initial responses to questions from [the prosecutor], he was very reticent in answering.
Further, the Magistrate placed significance on an observation made by Mr Baker about a photograph of the complainant’s injuries before the photograph had even been shown to him. This was after Mr Baker had professed little specific recall of the incident and identified his “hallucinations”. All of these were observations the Magistrate was well placed to make in the environment of the hearing and matters he was entitled to consider in assessing Mr Baker’s evidence. The Magistrate determined:
It seems to me that when one looks at the reticent way in which he gave his evidence that his memory of the incident is perhaps better than he was, in fact, indicating in court.
In circumstances where Mr Baker identified an established relationship with the appellant, where he was the only source of limited evidence about the nature and extent of his ‘schizophrenia’ and where there was no evidence supportive of Mr Baker “hallucinating” at the time of the incident, it was open to the Magistrate to reason that schizophrenia did not operate to render the evidence of Mr Baker inherently unreliable generally, and specifically that it did not undermine the reliability of the contemporaneous account of the incident that he provided. In my view, the Magistrate was right to reach that conclusion.

Particular (ii): inconsistent evidence?

The appellant submits that the Magistrate erred by accepting the evidence of Mr Baker without resolving inconsistencies in his evidence. The appellant did not specifically identify the inconsistencies said to have been left unresolved by the Magistrate.
It is somewhat inaccurate to describe any differences as between the evidence Mr Baker gave in the proceedings and the contemporaneous accounts he gave both to police and in the triple-zero call, as “inconsistencies”. Mr Baker did not entirely disavow the contemporaneous accounts he gave but rather offered a basis to the Magistrate to question the reliability of those contemporaneous accounts. The Magistrate was faced, on the one hand, with the accounts Mr Baker gave within an hour or so of the incident that contained detail given to him by the complainant and detail he said he himself observed and, on the other hand with the version Mr Baker gave in the proceedings where he did not adopt some of those details and offered explanation for the contemporaneous accounts to be considered unreliable.
The Magistrate, with the benefit of having directly observed Mr Baker as he gave his evidence, formed the view that Mr Baker was influenced by his relationship with the appellant when he gave evidence in the proceedings, such that he was reluctant to adopt incriminating details and that his memory difficulties were not entirely authentic. After setting out the significant aspects of Mr Baker’s evidence, including the account he gave to police and in the triple-zero call, the Magistrate concluded:
In as much as Mr Baker was reluctant to give evidence, that it was incriminating to his friend, I reject his accounts in as much as it was inconsistent with what he originally said both in the 000 call and the subsequent record of conversation. I accept the evidence as opposed to any evidence to the contrary that he gave in court.
The reasons of the Magistrate reveal that he did reconcile the ambiguities in the account Mr Baker gave in the witness box with the specific detail he had included in his contemporaneous accounts. A fair reading of the entirety of the reasons demonstrates any inconsistency in the evidence of Mr Baker was resolved by the Magistrate reasonably forming the view that the contemporaneous account he gave was reliable. This finding necessarily rejected the proposition that Mr Baker’s purported ‘schizophrenia’ made his contemporaneous accounts inherently unreliable. The Magistrate identified Mr Baker’s reluctance to adopt his earlier accounts as stemming from his friendship with the appellant. In my view, not only was it open to the Magistrate to reach the conclusion he did as to the reliability of the contemporaneous account of Mr Baker, in light of the evidence in the proceedings, it was also the correct conclusion.

Particular (iii) and (iv): reliance on the evidence of Mr Baker and the application of Liberato

It is convenient to deal with the third and fourth particular of this ground of appeal together as they are intertwined. The third particular is also entangled with particulars (i) and (ii) as no additional consideration was identified in support of the assertion that the evidence of Mr Baker ought not be accepted.
While the appellant pressed the Liberato point both as a separate ground, being ground (c), and as part of this ground characterising the finding as unreasonable and unable to be supported by the evidence, the Liberato submissions were put globally. I will not repeat here those matters I have considered as part of ground (c) in so far as they relate to Mr Baker.
Having determined that the appellant has not established the error asserted in particulars (i) and (ii), it follows that I do not consider that error has been established in relation to the Magistrate’s reliance on Mr Baker’s evidence. Not only was it open to the Magistrate to rely on his contemporaneous accounts, but I also consider that the Magistrate was correct to do so.
While the premise that Mr Baker’s evidence “should have been rejected” has not been established, I will nonetheless consider the proposition that, if it had been rejected, a Liberato direction would have resulted in an acquittal. First, I note that on any view, not all of Mr Baker’s evidence was controversial. There was no dispute that he called police after the complainant agreed to return to his house so police could be contacted. Mr Baker was there with the complainant when police arrived. The appellant agreed, as Mr Baker described, that she was at the residence and that the complainant suddenly left, and that they were previously unknown to each other. The appellant also agreed she was friends with both Ms Anderson and Mr Baker.
The success of the prosecution case did not rise and fall on the acceptance of the evidence of Mr Baker’s contemporaneous record of complaint or of his own observations. It was undoubtedly strengthened by them, but without the evidence of his contemporaneous account, the complainant’s version remained. Her version was cogent, chronological and resulted in a complaint made to police by her close in time to the incident occurring. Her description of the event was experiential and followed a logical narrative. Her description of the incident is consistent with her having fled the residence and then returning for police to be called, which is where she was when police arrived.
I have already determined that the representations made by Mr Kent, considering the circumstances in which they were made, were capable of being relied upon as proof of the fact in issue. Further, while the Magistrate rejected that the injury relied on by the prosecution amounted to actual bodily harm, this does not undermine the corroborative value of the evidence from Constable Garnon, who described seeing a red line on the complainant’s neck when they attended in response to the complaint. This observation was consistent with the allegation she made about the appellant holding the knife to her neck. On the appellant’s own version, she was motivated to see the complainant leave the residence. She was, at the very least, unhappy about the effect of the complainant’s connection with Mr Baker on his relationship with Ms Anderson.
The application of the Liberato direction in circumstances where Mr Baker’s evidence was rejected would not have resulted in an acquittal. There was a basis for the offence to have been proved in the evidence I have identified.
This particular has not been established.

Conclusion

It follows then that none of the matters raised under ground (a) by the appellant cast doubt on the correctness of the Magistrate’s finding. The Magistrate had the benefit of seeing and hearing the evidence from the complainant, Mr Baker, Mr Kent, Constable Garnon and the appellant. The Magistrate determined that he accepted the evidence of the complainant. The complainant’s evidence was supported by the contemporaneous accounts of Mr Baker and the representations attributed to Mr Kent. The Magistrate was correct to treat them as such. The Magistrate was right to reject the appellant’s version.
I am of the view, having regard to the advantage of the Magistrate, that he correctly relied on the evidence of the complainant, Mr Baker and the representations made by Mr Kent. That evidence demonstrated that there was no possibility that the appellant’s account might be true and further, that it could not be accepted. The evidence the Magistrate correctly accepted established the elements of the offence of common assault. I am satisfied that the finding of guilt was open to the Magistrate. Further I am satisfied beyond reasonable doubt that the finding that the appellant was guilty of the offence, was correct.
Having determined that none of the grounds relied upon by the appellant have been established, the appeal must be dismissed.

Orders

The orders of the Court are:
(1)The appeal is dismissed.
(2)The conviction is confirmed.

I certify that the preceding one hundred and fifty-four [154] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor.

Associate:

Date: 27 June 2024