Dixon v Police - [2021] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
DIXON v POLICE
[2021] SASC 24
Judgment of the Honourable Justice Peek
5 March 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
Appeal against conviction of aggravated assault.

The appellant was convicted of aggravated assault of his then step-son (the subject assault). The appeal grounds were (1) that the verdict cannot be supported by the evidence; and (2) that the Magistrate erred in failing to provide adequate reasons for rejecting the appellant's evidence.
As to Ground 1, the major contention was that both the complainant and his mother, Ms Dixon, had each advanced in their evidence at trial the same two aspects of their description of the subject assault, which had been previously omitted in their respective police statements. It was contended that there was evidence of recent invention pointing to collusion.
Held:
1. On an independent review of the whole of the evidence in accordance with the precepts in Tazroo v Police [2002] SASC 155, the correct conclusion is that the charged offence is proven beyond reasonable doubt. Police v Stanford [2013] SASC 151; R v Quist (2017) 127 SASR 471; Tazroo v Police [2002] SASC 155 discussed.
2.The Magistrate fully directed herself as to the matters relating to the previous statements given by the complainant and Ms Dixon; and also as to the other matters relied upon by the appellant. Her Honour sufficiently explained her conclusions and adequately exposed her reasoning process, linking her factual findings to the proof of the charge. AK v Western Australia (2008) 232 CLR 438; DL v The Queen (2018) 266 CLR 1 discussed.

AK v Western Australia (2008) 232 CLR 438; DL v The Queen (2018) 266 CLR 1; Police v Stanford [2013] SASC 151; R v Quist (2017) 127 SASR 471; Tazroo v Police [2002] SASC 155, discussed.

DIXON v POLICE
[2021] SASC 24

Magistrates Court Appeal: Criminal

PEEK J: Appeal against conviction of aggravated assault.
Mr Michael Dixon (the appellant) was charged with one count of assault upon his then step-son (which was “aggravated” by dint of the quasi-parental relationship) (the subject assault). After hearing the trial and reserving judgment, the Magistrate delivered her verdict of guilty and her reasons on 12 November 2020.
Overview of the prosecution case
The background and a summary of the prosecution case is sufficiently set out by the Magistrate in her judgment thus:
5. The prosecution called four witnesses. The complainant who at the time of giving evidence was aged 18, his mother Nicole Dixon, his step grandfather Gordon Hampton and grandmother Peggy Johnson.
…
8. There is no dispute about the following background matters.
The complainant was 16 years old in March 2019, turning 17 on 5 June 2019. The complainant lived with his mother and his then step-father the accused at [redacted], along with his younger brother who was born to his mother and the accused in February 2018. Nicole Dixon and the accused married in 2014, having been in a relationship for some 18 months prior. The family lived together until Ms Dixon and the accused separated on 23 August 2019 and Family Court proceedings were instituted in October 2019.
…
The complainant’s evidence
12. The complainant gave evidence that while he was not 100 percent certain of the date, on or around 18 March 2019 at 5 or 6pm he heard an argument in the lounge room kitchen area between his mum and the accused. He was in his bedroom at the time and went to speak to his mum and the accused. He was told by the accused that it had nothing to do with him, and not to worry. He said there was an argument between him and the accused and the accused followed him to his bedroom, where the argument continued through the door. He could not now recall what the argument was about.
13. The complainant said the accused was banging on his door while he was leaning against it, trying to stop him from getting in. The accused entered the room, pushed him against the wardrobe in his room in a bear hug and the complainant tried to get him off, using his arms and knees. The complainant stated the accused was ‘screaming in my face’. The complainant said he ‘got him off’ and as the accused was walking away, he threw water at him from a nearby cup.
The alleged assault
14. The complainant gave evidence that the accused then turned around, that he ‘went red’ and abused him, put his hand around his throat and pushed him to the bed and got on top of him so he could not breathe properly. He could not recall the exact body position but initially described the accused’s knees as being on his chest and that his full body weight was on his lungs. He said the accused screamed at him for a minute, swearing and saying horrible things. He said did not pass out but felt on the brink of passing out and went ‘limp’ and he felt like his face had pins and needles.
The complainant said after he was released the accused told him to ‘get the fuck out’. The complainant left the house and went to his friend Jack’s house. He did not see anyone when he was leaving and did not return home for three days. He said he had ‘like a rash’ on his throat. In cross examination on the topic of the rash he said it lasted around a day and it looked like a red mark near his adam’s apple.
…
Nicole Dixon’s evidence
19. Ms Dixon stated that the assault occurred on the 18^th of March 2019, on a night after she and Michael had arrived home from work and the complainant had come home from school. Ms Dixon was giving her youngest child his dinner in the kitchen and said that she and the accused were arguing about something. Ms Dixon said the complainant came out from his bedroom and said, ‘what now’. Ms Dixon said this set ‘the accused off’, that he yelled and screamed at the complainant. Ms Dixon said she was screaming, saying ‘stop, stop stop’ as her young son was getting upset. Ms Dixon said she left her son in his high chair and followed the accused and the complainant to the complaint bedroom. Ms Dixon said the complainant went into his room and tried to shut the door. She said the accused, who was stronger, got into the room.
20. Ms Dixon entered the room and from less than two metres away, saw that the complainant had backed off towards the bedroom window. The accused and complainant were yelling at each other. Ms Dixon said the complainant called the accused a cunt and that the accused then tried to ‘bear hug’ the complainant, who had dislocated his shoulder a few days prior, and pushed or smashed him into the bedroom wardrobe a few times. Ms Dixon said the complainant was trying to kick the accused’s shins with his own shins to get the accused to release him and that the accused was in a blind rage.
21. Ms Dixon said the accused released his hold of the complainant and walked away from him towards Ms Dixon, swearing. She states the complainant then picked up a cup of water and threw the contents of the cup at the accused, which landed on the back of his neck and shoulder.
22. Ms Dixon said the accused turned around and screamed ‘that’s it’, grabbed the complainant by the throat and threw him forcibly onto his bed. From the doorway of the bedroom she saw the accused get on top of complainant and put his weight on him, with his knees on his chest. She said the accused was not listening to her and placed all his body weight on the complainant, who stopped talking and then went limp.
23. Ms Dixon said the accused then got off the complainant and told him to leave and pack. The complainant got up when he got his breath back, he took his bag and the complainant walked out of the house. Ms Dixon described being very upset and needing to calm her youngest son who was crying. She said the accused was yelling at her and said that she always took the complainant’s side.
24. Ms Dixon described the accused being angry about the complainant calling him a cunt. Ms Dixon called her mother to see if she could try and call the complainant as she had to calm down what was happening at home. Shortly after making that phone call, her step father Gordon Hampton arrived to fix a door lock, something which had been arranged previously.
25. Ms Dixon agreed that she had spoken to the complainant about the incident but denied having discussed their statements.
…
Gordon Hampton
30. Mr Hampton said he visited the complainant’s home to fix a lock on the front door on Monday 18 March 2019 at about 7pm. Mr Hampton said on arrival he saw the complainant walking down the road with his backpack and did not see him for a few days following. He noticed on his arrival that Nicole Dixon and her young son were upset. He recalled the date that he attended as he had asked his wife to write the date in her diary. Mr Hampton believed he had arrived at around 7pm as he had dinner before he went to the house. It was put to Mr Hampton in cross examination that he was wrong about the date which he denied.
31. Mr Hampton agreed that he told police in a statement dated 15 March 2020 that he arrived at the house after 7pm. Mr Hampton said his recollection was that he arrived around 7pm.
Peggy Johnson
32. Ms Johnson gave evidence that she made an entry in her diary on 18 March 2019, late on the night that her husband went out to fix the lock of a door of her daughter’s house, after receiving information from her husband.
Overview of the defence case
The defence case and a summary of the evidence of the appellant (together with brief character evidence) is set out by the Magistrate in her judgment thus:
33. The accused gave evidence. I have evaluated and assessed what he said in his evidence in the same way as the evidence given by the other witnesses. The accused denied the alleged assault.
34. He said there was an incident which involved an argument between the complainant and the accused that led to the complainant leaving the house on 16 March 2019 and returning on 21 March 2019. The accused said that Gordon Hampton was not present at the house after the incident on the 16 March 2019.
35. The accused gave evidence that he was involved in the complainant’s life as an active engaged step-father and had always considered that he had two kids. By March 2019 the context was one where the complainant was demonstrating behavioural issues, becoming argumentative, belligerent, using drugs and having difficulties with his school due to this behaviour. The accused said that the complainant manipulated his mother.
36. The accused said that on Saturday 16 March 2019 around 2pm to 2.30pm, the complainant returned home and appeared secretive, stoned and affected by alcohol. The accused asked him what he had in his bag. The complainant showed the accused white boxing gloves that appeared to be new and said that a friend had given them to him. The accused said to the complainant that he did not believe him and he wanted the correct answer. The complainant said his friend had been a look out and they had stolen them from a store.
37. The accused told the complainant he did not want stolen goods in the house. The complainant and the accused grabbed the bag and the accused pulled the gloves out of the bag. The complainant had a 1.5 litre bottle of water nearby on a table and said that if the accused did not give the gloves back, the bottle of water would go over him. In cross-examination the accused said the complainant said if he did not give the gloves back he would ‘throw it (the water bottle) at your face’.
38. The open bottle was then thrown and it hit him in the face. In cross-examination the accused said the complainant called him a ‘cunt’ when he threw the water bottle. The accused went to leave the room and the complainant came at him to get the gloves. The accused put his hands out to push him away and placed him in a bear hug to calm him down. The accused said he was pretty sure he dropped the boxing gloves as he could not hold the gloves and bear hug the complainant at the same time. He did not push the complainant onto the bed, put his knees on him or grab his throat. The accused said the complainant was carrying on, saying he was going to leave and then left the house. He said he did not return until Thursday evening 21 March 2019. The accused said Ms Dixon was present in the house during this incident looking after their young son in another room. Ms Dixon and came into the room to see what had happened. The complainant was carrying on saying he was going to leave and then did so. There was no conversation with Ms Dixon about the matter other than about the boxing gloves.
39. In cross-examination the accused said that after the water was thrown at him by the complainant, the gloves were taken from ‘where we were towards the doorway’ and that the complainant ‘came towards me with the gloves’. The accused said he put the complainant in a bear hug to try and calm him down as he was trying to kick him in the shins and he was enraged. The gloves were dropped. The accused turned around or walked back and said he was throwing the gloves in the bin. The complainant collected the gloves, put them in his bag and told Ms Dixon he was leaving. The accused said the complainant left the room as the accused talked to Ms Dixon about what had happened.
40. In cross-examination the accused said during the incident they were both yelling at each other with raised voices, but it did not attract Ms Dixon’s attention. The accused said Ms Dixon became aware of it when the complainant left the room on his way out of the house with his bag towards the kitchen, yelling that he had been accused of stealing boxing gloves and that he did not want to live there anymore. The accused told Ms Dixon that the complainant had admitted to stealing the boxing gloves. The accused said this occurred no later than 4pm. Later in cross examination when asked about why the complainant would deny stealing the gloves if he had admitted it to the accused, the accused said that the complainant would often not tell his mother the truth about what was going on, who had difficulty in seeing fault with her son.
41. The complainant was cross examined on the topic of the boxing gloves. He said he had boxing gloves given to him by a friend. He agreed an incident occurred after he came home affected by alcohol and marijuana and showed the gloves to the accused, who accused him of stealing the gloves. The complaint denied stealing the gloves and denied telling the accused that he had stolen them with a friend. The complainant agreed that the accused said he did not want stolen goods in house and that he had probably told the accused to ‘fuck off’. It was put to the complainant that when the accused tried to remove them from his bag, he said that he was a loser and a dickhead. The complainant could not recall but did not disagree. The complainant disagreed that he threatened to throw water at the accused if he didn’t return the gloves and denied throwing water at him. He denied kicking him or pushing him or being aggressive and swearing and being put in a bear hug by the accused. He said that ‘this’, meaning the restraint in a bear hug, happened on a different occasion. He denied that he had left the house following an incident with boxing gloves.
42. Ms Dixon in cross examination agreed that there had been an argument about boxing gloves between the accused and the complainant but said that this was on a different occasion.
43. The accused called a character witness, Ms Megan Godrey who gave evidence that she has known the accused through working together for over six years, and that he is held in high regard with everyone he works with, as an honest, helpful person. Good character evidence is relevant when assessing the credibility or truthfulness of the accused’s evidence. A person of good character is generally considered to be less likely to lie or to give a false account of themselves when giving evidence. It is evidence that can be used in determining the likelihood that the accused committed the offence and as a consideration when deciding whether to accept the prosecution allegations that he committed the offence. It is only one of the many factors that can be taken account in determining whether the court is satisfied beyond reasonable doubt of the guilt of the accused.
The Grounds of Appeal
The Grounds of Appeal were originally as follows:
1.The Learned Trial Magistrate found the Appellant guilty against the weight of evidence.
2. Failed to properly take into account or at all the conduct amounting to collusion between the complainant and the complainant’s mother.
The correct approach to an assertion that a verdict of guilty is not supported by the evidence
I have previously, in the context of both summary and jury trials, protested at the mistaken adoption by some solicitors and counsel of the terminology “against the weight of the evidence” as a ground of appeal against a verdict in a criminal trial. In the former context, I stated in Police v Stanford:[1]
10. Although the phraseology “against the weight of the evidence” has a certain pedigree, particularly in appeals against judgments in civil cases, it is not a good choice for an appeal against a verdict in a criminal trial heard by a Magistrate.
11. The term “against the weight of the evidence” rather suggests that the burden on the appellant is to demonstrate that the preponderance of evidence was in favour of an acquittal and that the conviction was against the weight of that evidence. That might accurately represent the task of an appellant in civil proceedings but it disadvantageously states the position of the present appellant. The appellant at trial did not have to establish a preponderance of evidence in favour of an acquittal; he merely had to be successful in submitting that the case was not proven beyond reasonable doubt.
12. The appropriate ground of appeal in a case such as the present would be something like: “The evidence cannot support a finding of guilt beyond reasonable doubt” or “It was not open to find the appellant guilty beyond reasonable doubt on the evidence” or even “The charge was not proven beyond reasonable doubt”, with many permutations in between. I will proceed on the basis that it is this approach that is intended by ground of appeal 2.
[1] [2013] SASC 151.
And in the latter context, I stated in R v Quist:[2]
11. The drafting of ground 6 of appeal reflects a recent trend in notices of appeal to assert that a guilty verdict in a criminal trial is “against the weight of the evidence”. These words connote that the appellant proposes to undertake the burden of demonstrating that the jury should have found that the evidence in favour of a verdict of not guilty (the weight of the evidence) was greater than the evidence in favour of a conviction. Of course, the true burden on a criminal appellant is much less; it is simply to demonstrate by reference to the precepts in M v The Queen[3] that it was not open to the jury to find that the prosecution evidence was such as to produce satisfaction beyond reasonable doubt. The sooner this verbiage “weight of the evidence” is relegated to its home in the civil courts, the better.
[2] (2017) 127 SASR 471.
[3] M v The Queen (1994) 181 CLR 487, in particular the passage from the last paragraph at 492 to the first paragraph at 495 (Mason CJ and Deane, Dawson and Toohey JJ).

Despite such statements of the obvious, once again, the appellant’s first ground of appeal was originally drafted in such a way as to disadvantage the appellant. Counsel for the appellant applied to amend the grounds by substituting the following grounds:
Ground One
1. The verdict is unreasonable and cannot be supported by the evidence.
Ground Two
2. The Learned Sentencing Magistrate erred in failing to provide adequate reasons as to how conflict upon critical questions of credit and reliability were resolved.
I granted that application. I would simply add that the correct approach on an appeal against a conviction after trial by a Magistrate remains as stated by Lander J in Tazroo v Police:[4]
17. Section 42 of the Act is in a different form to s 177 of the Justices Act which, formally regulated appeals from the Magistrates Court. However, the appeal is still a re-hearing so that it proceeds on the documents although there is power given to the Court to re-hear any of the witnesses or receive fresh evidence; s 42(4) of the Act.
18. Because it is a re-hearing and because it is an appeal from the Magistrates Court the Court has an obligation to re-hear the case in the sense that it must reconsider all of the evidence before the magistrate together with such other evidence as it might admit.
19. It is the duty of this Court to make up its own mind, after giving due weight to the magistrate’s advantage in seeing and hearing the witnesses, and of course after giving weight to any findings on credibility which depend largely or on part on demeanour.
20. I think the duty of the Court in an appeal under s 42 of the Act is no different to the duty imposed on this Court under the repealed s 177 of the Justices Act; Taylor v Hayes (1990) 53 SASR 282.
[4] [2002] SASC 155.
GROUND 1 OF APPEAL
Although there were a few other inconsequential matters, the only major contention under Ground 1 was that both the complainant and Ms Dixon had each advanced in their evidence at trial the same two aspects of their description of the subject assault, which had been previously omitted in their respective police statements. These two aspects were first, that the appellant had used his knees to apply pressure to the complainant’s chest, and secondly, that after a time the complainant had “gone limp”. It was contended that this was “recent invention”; that it pointed to “collusion”; and that there were false denials of discussing the incident. All of this, it was said, led to a reasonable doubt as to the appellant’s guilt.
The argument on Ground 1 of appeal is summarised thus in the appellant’s written submissions:
36. It is submitted that the identical inconsistencies from the complainant and his mother as to the positioning of the appellant during the incident and its outcome (the complainant becoming limp) require careful scrutiny. On one assessment, there exist two identical recent inventions from the two primary prosecution witnesses. It is submitted the coincidence, if it be that, is remarkable. On the other hand, this aspect of the evidence, it is submitted, is strongly indicative of the witnesses discussing the detail of the incident, if not their evidence, with each other. Not only does this raise the issue of collusion, but it also needs to be factored into an assessment of both the credibility and reliability of the complainant and his mother. In relation to credibility, these two issues need to be considered against the denials that the witnesses had discussed the matter in detail with each other. In relation to reliability, these two issues need to be considered in the context of previously omitting to include important details of the incident in their narrative. Either way, these are not peripheral matters easily forgiven. [Emphasis added]
It is important to analyse this submission carefully. I will first consider the evidence of the complainant.
The evidence of the complainant
Although the matter of the knees in the complainant’s chest is chronologically prior in the sequence of events, on the appeal Mr Allen QC for the appellant, dealt with the complainant’s assertion that “he went limp” first. Accordingly, I will address that matter first.
The complainant’s assertion that “he went limp”
At the hearing of the appeal, counsel submitted as follows:
MR ALLEN: The next items of evidence that are raised in my submission are of more significance, they relate to some evidence given about the actus reus of the incident giving rise to the charge itself.
HIS HONOUR: Yes.
MR ALLEN: One of those topics is the description given by the complainant of the appellant strangling him with his knees on his chest, and secondly, he described that he went limp. It is really those two items that, in the appellant’s submission are, for want of a better phrase, are probably the ‘big ticket’ items in terms of -
HIS HONOUR: Yes, I understand that.
MR ALLEN: And it’s not just that the complainant had omitted in his statement to police to include these important details, but there is an aligned concern with the evidence of the mother, and I will come to that in a moment, but if I can just deal with the version that was given by the complainant. His statement was provided to the Christies Beach Police on 26 August 2019, some five months after the incident is said to have occurred.
During the course of his cross-examination the complainant agreed with the proposition in general terms that he had been instructed by the police to give a complete and detailed account of what had taken place, and then under cross-examination, in my submission after some resistance that is apparent from the transcript, he conceded that he had not told the police that he went limp. [Emphasis added]
In fact, that assertion of a concession underlined above is directly contrary to the following evidence that the complainant gave in cross-examination at trial:
QWhen you gave a statement to the police, how was it taken down.
AComputer.
QSo was an officer asking you what happened and you recounted.
AYes.
QAnd no doubt when you attended for the statement he told - is that a he or she, Constable Handberg.
AI’m pretty sure it was a he.
QHe would have told you to give a complete, detailed account of what had taken place, is that correct.
AI honestly couldn’t tell you, but, yes, I would say so.
QNow, when you gave your statement, I suggest that at no time did you tell the police, the police officer, that as a consequence of him having you on the bed, that you went limp.
AYes, what about that?
QWell, I’m suggesting to you that when you gave your statement to the police, there was no mention by you about you going limp.
ACan you say what I’ve wrote?
QI am just asking, I am just telling you, I’m suggesting to you, that you never mentioned anything about being limp.
AWell, from what I can recall, I remember saying that I went limp.
QWould you like to look at your statement to refresh your memory on that topic.
AGo for it. I’d love to see it.
QJust looking at that statement now produced to you, is that a statement of five pages.
AYeah, around that.
…
QIt’s a statement of five pages.
AYes.
QIt was given, it would appear, to the police on 26 August 2019.
AYes.
QDo you agree with that.
AYep.
QI was asking you earlier, suggesting to you, that at no stage when you gave that statement, did you mention to the police officer, going limp. If you’d like to look at, perhaps, the bottom of p.3 and over to p.4 to refresh your memory as to whether you told the police that you went limp.
AYes, I can’t see in this statement where it says that. I’ve explained to many police officers that story, that I had gone limp. I think the fact that he had his hand on my throat and his knees restricting my breathing for a minute should say enough.
QDo you agree that you never mentioned to the police officer, in that statement, about going limp.
AIn this statement it doesn’t say I went limp. I agree with that. [Emphasis added]
There is a clear distinction between a witness telling a police officer about a matter but the officer not recording that particular detail (on the one hand), and a witness not telling the officer about a matter at all (on the other hand). In the above passage, the complainant plainly avoided eliding the two.
It is a matter of common knowledge to all Magistrates and Judges that the particularity and competence with which police officers take down written statements from potential witnesses varies very greatly. In a situation where a witness later says in Court that he told an officer a detail, the fact that that detail does not appear in the statement composed by the officer is often of very little consequence. In the present case, it was incorrect to assert on the appeal that the complainant “conceded that he had not told the police that he went limp” when, in fact, the complainant had vigorously rejected that very suggestion at trial.
The complainant’s assertion concerning the appellant’s knees
As noted above, it was contended in the appellant’s written submissions at paragraph 36 that the complainant had also omitted to include the matter of the appellant’s knees when narrating the incident to the police officer. However, once again, it can be seen from the trial transcript that the complainant stated in cross-examination that he had in fact mentioned that matter to the officer:
QYou’ve also told us this morning that when he was on your bed, on top of you, he was using his knees.
AYes.
QJust describe exactly what he was doing with his knees.
AHis knees and waist were on top of my chest restricting my lungs from breathing.
QAt the same time as having his hand around your throat. Is that right.
ACorrect.
QWhen you gave your statement to the police officer on this day, being 26 August 2019, I suggest there was no mention by you to him about his knees being on your chest.
AI can clearly remember saying to the police officer that he had his waist and knees - the lower part of his body was on top of my chest restricting me from breathing. [Emphasis added]
Ms Dixon’s evidence at trial concerning the appellant’s knees and the complainant “going limp”
Ms Dixon’s evidence stands differently in that she did not dispute the proposition that she had not used the words “knees” or “limp” when giving her police statement. At trial, she gave the following evidence concerning the appellant’s knees and that the complainant “went limp”.
Ms Dixon’s evidence in chief at trial
Ms Dixon gave the following evidence in chief at trial:
AOkay, so when Michael got into Cooper’s room I then followed down into Cooper’s bedroom. So I was in Cooper’s bedroom when this was happening so it was not even two metres away. So I was in - yeah, I was in Cooper’s room. I could see everything clearly. And then - so he smashed him a few times in the wardrobe, screaming, carrying on, and then Michael released his hold of Cooper and went to walk my way. ‘Cos he’s screaming, like swearing. I can’t remember every word that was said, but screaming. And then Cooper picked up a glass of water on his desk and he threw the water at Michael and so obviously then this -
…
QWhere did the water go.
AIt landed on Michael.
QWhat part of Michael.
ABack, probably up here more (DEMONSTRATES).
HER HONOUR
QYou’re indicating your neck and shoulder on your right side.
AYeah, ‘cos Michael had turned and was walking out, so he threw the water at him.
XN
QSo where were you when Michael was walking out.
AHe was walking - so towards me ‘cos I was in the entrance to the bedroom. Well I was just in. So he was walking towards to me. Cooper threw the water. Obviously the water hits Michael. He then responds, turns around, says something along the lines of - like screaming ‘That’s it’, and then he went for Cooper, grabbed him by the throat. And then ‘cos where Cooper’s bedroom - so the wardrobe, they were here, like the desk, and then Cooper’s bed. Obviously Cooper threw the water at him, turned around, grabbed, ‘That’s it’, whatever, and then grabbed Cooper by the throat and then pushed him down, like real forcibly onto Cooper’s bed. Like a real body-slam, kind of, onto Cooper’s bed, and then Michael got on top of Cooper and put all his weight, like his knees right up onto Cooper’s chest and Michael was screaming in Cooper’s face, like right in his face screaming at him, and then Cooper - ‘cos I was right in the hall - like right in the doorway to the bedroom, I could see everything. I was screaming at Michael to stop. He wasn’t listening to anything I was saying. He put all his body weight on Cooper. Michael’s a lot heavier than Cooper. He was 16 at the time. And then Cooper stopped talking, he wasn’t yelling anymore so I knew Cooper couldn’t breathe. Then Cooper went limp, Cooper wasn’t saying anything, and then Michael eventually got off, told Cooper to ‘Fuck off and pack your stuff’, and Cooper got his bag - when he got his breath back, got up, got a bag and he was gone. … [Emphasis added]
Ms Dixon’s cross-examination at trial
As to the matter of the appellant’s knees, Ms Dixon gave the following evidence in cross-examination at trial:
QWhen you gave your statement, I suggest that you made no mention at all of Michael having his knees in the chest.
AI said his whole body weight was on top of him.
QDo you agree that you did not mention his knees being on Cooper’s chest.
AI didn’t mention it specifically but the whole body weight means - I know what I saw but I didn’t word it exactly at the time. I know what I saw, that’s why I’m elaborating for you now.
QWhy didn’t you mention - I mean you told us about knees today, why didn’t you use the same description that you gave to the police.
ABecause you asked me to tell you where his knees were.
QNo, no, you gave evidence about his knees in-chief to the prosecutor.
AHis whole body on Cooper, when I gave my statement I was explaining what I saw. The words didn’t actually say ‘knees here, here and there’, whole body is his whole body is on him. If I was asked to elaborate, ‘Where were his knees?’, I would have put that in. I’d just got out of - I got taken out of the home by the domestic violence crisis line, I was in a stressful situation. His whole body on Cooper, I’m telling you where his knees were.
QMadam, he could have his whole body weight on Cooper by lying on him.
AOkay, he wasn’t lying flat, if that’s what you’re meaning.
QIt’s curious why you’ve remembered to use the word ‘knees’ today as opposed to what you described in your statement about put all of his weight onto him, onto his chest.
ABecause that’s what happened.
…
QWhen you gave your statement to the police, didn’t you say ‘He put all of his weight onto him and onto his chest’.
ACorrect.
QBut you did not describe it including the knees, did you.
ANo, I didn’t but that’s what happened. I thought ‘all of body weight’ is suggesting in itself what’s happening.
As to the matter of the complainant going limp, Ms Dixon gave the following evidence in cross-examination at trial:
QAnd you’ve also told us that he went limp today.
AHe did go limp.
QNo mention of that in the statement, I suggest.
AHe wasn’t responsive, he’d stopped yelling. He had gone limp.
QMadam, all I’m suggesting to you is that you did not use the expression.
ADid not use the expression, no.
QSo why have you brought that up today. Is it a recent invention.
AThat’s what happened. I’m having to relive this disgusting event that happened. I’ve tried to put it out of my mind and now I have to relive the day. That’s what happened.
Cross-examination of Ms Dixon concerning her Family Court affidavit
Ms Dixon also described the subject assault in her Family Court affidavit and she was cross-examined in the present case on that affidavit as follows:
QWhen you gave your affidavit to the Family Court, describing the way Michael was positioned on Cooper, didn’t you say this, ‘My husband then grabbed Cooper and threw him on a bed and lay across him with all his weight’. Did you not describe it in those terms.
AI guess if that’s what’s written down.
QWell do you agree that’s different to the description -
AIt’s the same thing.
QDo you agree -
AI agree the wording is different but I do not agree that the situation is different.
QAgain, no mention of knees at all.
A... No mention of knees.
QAnd laying across him. Well laying is different to, in effect, kneeling on him, isn’t it, as you’ve described.
ANot in my mind at the time when I was giving my statement, no. That’s what I was meaning. I was trying to describe the event. It hasn’t changed. All of his body weight was on top of my son. He could not breathe.
QDo you accept it’s a different description as to what you told -
AThe wording is different because I wasn’t there reading word-by-word of my affidavit.
QWell it was your description that you gave to the -
AIt’s the same thing, body weight on Cooper.
QIt was your description that you gave to the lawyer who took the affidavit down, isn’t it.
ACorrect.
As to the Family Court affidavit, the prosecution makes the point (with which I agree) that the purpose of giving such an affidavit may have been perceived as being rather different to the giving of evidence concerning one particular incident of assault. The purview of Family Court proceedings would be very much broader and the affidavit would need to traverse very much more than that one incident; the inevitable outcome would be that the treatment of the assault incident would not go into the depth of detail required by a trial concerning that particular matter only.
Conversation about the assault between the complainant and Ms Dixon
I turn to the matter of discussions between the complainant and his mother. It seems to me that, in a situation where two people who know each other directly observe a particular event which is of importance to both of them, it is almost inevitable that they will later speak to each other about that event. The present situation of a mother seeing her child being seriously assaulted, and being very concerned as to his welfare, is perhaps a paradigm example of such a situation.
It is to be noted that in paragraph 36 of the appellant’s written submissions, a broad reference is made to “the denials that the witnesses had discussed the matter in detail with each other”. In fact, the evidence did not come anywhere near to supporting any such proposition that either the complainant or Ms Dixon made any such denial.
There was discussion of this, and other allied matters on the appeal, and I afforded counsel the opportunity of addressing the concerns I had concerning the broad accusation of “collusion” between the complainant and Ms Dixon. Thus, the discourse concerning the matter presently under consideration proceeded as follows:
HIS HONOUR: So you see, here’s the thing. There can be almost by way of a process of osmosis over a time between a mother and a son, at different times speaking about a common incident they’ve each seen, where the language of the one tends to be picked up by the language of the other. You don’t like that idea?
MR ALLEN: Well, I do. I’m sorry for the hopefully pregnant pause.
HIS HONOUR: See, it doesn’t necessarily mean that the end result is some sort of a deliberate exaggeration of a matter, let alone the - well, I mean, it’s really said to be a conspiracy, isn’t it, collusion and all that, is the language that’s put. The mere fact that one tends to, as it were, take on board what the other says to some extent, it might bring them somewhat closer together, even to the extent of using the same sort of verbiage. But that doesn’t, of itself, take you to where you want to go.
MR ALLEN: No, I accept that. But in the circumstances of this case, that concept needs to be viewed through the prism of the evidence given by the complainant and the mother about what they had discussed or not discussed.
HIS HONOUR: Well there’s that, and you can give me those page references, but it’s not as though you’ve got a situation, which would be far better for you, where they come along and say, adamantly, ‘I never spoke about this with the mother or with the complainant’, whereupon the magistrate immediately thinks they’re lying because that’s incredible. You haven’t got that so.
MR ALLEN: No, that’s disappointing from the appellant’s point of view. But there are issues that arise on the evidence on that topic that are of some significance in the appellant’s submission. And perhaps, again, can I move to that while the court’s raised it?
HIS HONOUR: Certainly.
The complainant’s cross-examination about his discussions with Ms Dixon

And so, we move to the cross-examination of the complainant concerning him discussing the subject assault with Ms Dixon. It was as follows:
QThis morning you told her Honour that the incident happened around 5 or 6 p.m., I suggest. That’s what you told us this morning.
AYes.
QDidn’t you, when you gave your statement to police back on, as we know 26 August 2019, say ‘At about 5 p.m.’ you were at home and you heard the argument.
AYes.
QSo, why have you now, today, said it was around 5 or 6 p.m.
AIsn’t it the same time?
QWell, it was -
AIt was around a year and something ago. I honestly couldn’t tell you the exact minute it happened. I feel like if I said five o’clock a couple of months ago and I say five to six today, it’s still around the same time range. Like, it’s not like I’m saying it happened at 8 a.m. one day and then the next day I’m saying it happened at 8 p.m. Like, it’s a 60 minute difference.
QWell, is it because you’ve spoken to your mother about what time she said the incident occurred.
AWhat does my mother have to do with this?
QI’ll repeat the question. Is it because you’ve spoken to your mother about the incident and what time she told the police it occurred.
AI honestly, like -
QHave you spoken to your mother about this matter.
AOf course I’ve spoken to my mother about this matter.
QAnd gone through your statements together.
ANo, we haven’t gone through our statements.
QYou haven’t discussed it at all together.
ANo.
QWell, what have you discussed with your mother about this.
AWe’ve just talked about like, man, I don’t know what to say, like I’ve said all I can say. We’re talking about if it happened at five o’clock or six o’clock. I don’t see how this is relevant. Could you please ask me a more relevant question?
QI’ll ask the questions, thank you, as I see fit. You said this morning that you weren’t even sure of the date.
ANo, I’m not sure of the date. It happened a long time ago.
QWhen you went to the police on 26 August 2019 you were specific about the date, weren’t you.
ABecause it was closer in my mind back then. I couldn’t give you exact dates and times. I’ve been saying it this whole time. I can’t give you exact dates and times.
QWell, you must have spoken to your grandmother, you’ve said. She had it in her diary.
AShe called the police because my mum’s explained to her that I’d been kicked out of home. She explained that Michael assaulted me, so my nanna called the police and explained what happened. I don’t honestly know what else I can say about that.
QOkay. You must have spoken to her at some stage to get the date from her.
AI don’t know, like dates are on your phones these days. You can just look at your phone and see what the date is. I’m going to be giving the same answer for all these date and time questions. I don’t know.
QSo you’ve also told us this morning that after the incident you left the house. Is that right.
AYes.
QDid you speak to your mother at all before you left the house or just decided to shoot out.
AYeah, I probably spoke to her vaguely. [Emphasis added]
My initial assessment of the cross-examination of the complainant concerning conversation between him and Ms Dixon was that it was not sufficiently specific or clear to establish that he had positively stated to the Court that conversation between them was very limited. Having read the written submissions, and having given counsel the opportunity of addressing the matter, my view remains the same. I think that the following passage of dialogue on the appeal sufficiently deals with the matter:
MR ALLEN: At line 28 is where this topic of him speaking with his mother is introduced and your Honour can see from the first answer that immediately, in my submission, the complainant becomes defensive of this topic.
…
HIS HONOUR: It’s a funny word ‘defensive’, isn’t it, the way it’s thrown around sometimes. You use it with some sort of a pejorative tinge, do you?
MR ALLEN: I do. … My submission is that it’s open to interpret that piece of evidence as the witness not wanting to answer the questions put.
HIS HONOUR: Well, you see, “Have you spoken to your mother about this matter? Of course I’ve spoken to my mother about this matter”. That might have been spoken with a degree of asperity for all I know, but that would be very understandable if it was.
MR ALLEN: With respect again, I wouldn’t disagree with that, but the initial response is one of, in my submission, a reticence to deal -
HIS HONOUR: What, the answer ‘What does my mother have to do with this?’
MR ALLEN: Yes.
HIS HONOUR: Well, might have said that for any number of reasons, I would have thought.
MR ALLEN: May it please your Honour. Then if your Honour continues through this line of questioning over to p.19 of the transcript, there was a question ‘You haven’t discussed it all together?’ ‘A. No. Q. Well, what have you discussed with your mother about this.’
HIS HONOUR: To be fair, well to be comprehensive, I think you have got to actually take that first segment of that page on transcript 19 with the very bottom of transcript 18 because after saying ‘Of course I’ve spoken to my mother about this matter’, the question is ‘And gone through your statements together?’ ‘A. No, we haven’t gone through our statements.’ Now that of course is a very different kettle of fish.
MR ALLEN: I accept that.
HIS HONOUR: And that next question ‘You haven’t discussed it at all together, no’, would almost certainly be seen through a lens of the previous matter of suggesting they had gone through their statements, so I don’t think I can get really anything out of that first two lines. It’s just not clear what the witness is understanding by that question and then you get a more open-ended question, ‘What have you discussed with your mother about this?’. ‘A. Well, we have just talked about it, like, man. I don’t know what to say. Like I’ve said all I can say.’ Then he goes back to the matter at hand, namely the time issue. Now what is your submission on this, just tell me again?
MR ALLEN: That there is a degree of disparity between the evidence of the complainant and his discussions with his mother and the evidence of the mother and her discussions with the son.
HIS HONOUR: Okay, so we’ll be going to that to do a comparison, right.
MR ALLEN: Yes, and I can take your Honour to that now.
Ms Dixon’s cross-examination about her discussions with the complainant
And so, we move to the cross-examination of Ms Dixon concerning her discussing the subject assault with the complainant. It was as follows (at page 76 of the transcript, with the questions re-numbered for convenience):
Q1.Cooper had given a statement, I suggest, at Christies Downs.
A.Yes.
Q2.Do you agree with that.
A.Yes.
Q3.Did you convey him to that interview.
A.What does that mean?
Q4.Did you take him.
A.Did you take him?
Q5.Well he had to have gotten there somehow.
A.I took him there but I wasn’t in the interview room.
Q6.I didn’t ask you that, I said did you take him.
A.Yes, I did.
Q7.And you then went - I suppose you waited for him to finish the interview.
A.Yes.
Q8.And conveyed him home.
A.I took him home.
Q9.Did Cooper have a copy of the statement you’d given.
A.I don’t remember.
Q10.You no doubt have spoken to Cooper about the incident.
A.Sorry?
Q11.No doubt you would have spoken to Cooper about the incident.
A.About giving the report or about -
Q12.About the incident itself.
A.- what happened with Michael?
Q13.Yes.
A.Of course I’d spoken to Cooper about it, he’s my son, he was upset, I’m making sure he’s okay.
Q14.Yes. Did you speak to him about it on the way home after he’d given his interview.
A.No, I didn’t ask him what his thing was, I was making sure he was okay.
Counsel essentially submitted that the last answer (14) above had the effect “to, on the mother’s version, limit any discussions that may have taken place about the detail of the alleged incident itself”.
With respect, I cannot agree. It is important to have close regard to the composition of the cross-examination. One sees that the questions commencing at Q10 are put against the immediate backdrop of introductory questions concerning the complainant’s police interview at questions 1 to 9. The very broad Q10 “You no doubt have spoken to Cooper about the incident?” was answered by the word “Sorry?” which may well have been the product of some asperity at the obvious nature of the broad proposition that she would speak with her son about such an important matter.
The result was that the question was then narrowed at Q11 to “No doubt you would have spoken to Cooper about the incident?” This change of tense may well have been interpreted by Ms Dixon as a narrowing of the inquiry to the period before the complainant’s police interview which had just been discussed and this appears to be confirmed by her deliberate selection of the pluperfect tense at A13 “Of course I’d [I had] spoken to Cooper about it, he’s my son, he was upset, I’m making sure he’s okay”.
The real problem for the appellant is that he is fixed with the cross-examination as it was conducted at trial.[5] Ms Dixon was never asked to estimate the number of occasions on which she discussed the subject assault with the complainant. The questions that were put were rather vague and her answers simply cannot be interpreted as a concession by her that discussion with her son was limited to one occasion shortly after the subject assault occurred, as the appellant now seeks to contend.
[5] There was no application to further cross-examine any witness on the appeal.
Further, I note the following submission of Mr Hill for the respondent, with which I agree:
21. Finally, as to both of these asserted inconsistencies, the appellant’s argument might have some force if there was something particularly surprising about either witness first including a reference to the appellant’s knees, or the fact of the complainant going limp, in their testimony, but in each case it is unremarkable. As the LTM notes in the reasons, they are the types of inconsistencies one expects when a person subsequently recounts the same event.
22. It is also helpful to identify the significance of these asserted inconsistencies to the real issues in the trial. As noted above, and contrary to what is implied in the appellant’s submissions, this is not a case of competing versions of the one incident. On the defence case, the alleged incident could not possibly have occurred because the complainant had left the house between the Saturday and the Thursday. On the defence case, the allegations must have been concocted by the complainant and Ms Dixon, and these asserted inconsistencies are evidence of that concoction. To that extent, it is relevant that the evidence of Mr Hampton and Ms Johnson served to negate the defence case. [Citations omitted]
Conclusion as to Ground 1 of appeal
I have considered Ground 1 of appeal by reference to the precepts in Tazroo v Police[6] as reproduced above. I have considered for myself the whole of the evidence (and in doing so have paid particular attention to the written and oral submissions of the appellant and the evidence given and called by the appellant). I conclude on the whole of the evidence that the appellant is guilty of the offence charged.
[6] [2002] SASC 155.
Accordingly, Ground 1 of appeal is not made out.
GROUND 2 OF APPEAL
In essence, counsel submits under Ground 2 that the Magistrate failed to give adequate reasons for convicting the appellant, particularly in light of the fact that he gave sworn evidence denying the offence, and taken together with the matters concerning the previous statements of the complainant and Ms Dixon referred to above.
I consider that the Magistrate fully directed herself as to the matters relating to the previous statements given by the complainant and Ms Dixon, and also as to the other matters relied upon by the appellant. Her Honour gave all of these matters appropriate attention.
Further, the Magistrate did explain sufficiently her conclusions concerning the significant disputes that constituted necessary steps to her final conclusion that the charge was proven; and in doing so, her Honour did conform to the precepts set out by the High Court in AK v Western Australia[7] and in the more recent decision in DL v The Queen.[8] In DL v The Queen, the majority (Kiefel CJ, Keane and Edelman JJ) stated: [9]
33. The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge’s failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”.[10] At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.[11] In particular:[12]
“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”
[7] (2008) 232 CLR 438, 468.
[8] (2018) 266 CLR 1.
[9] Ibid 12-13.
[10] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.
[11] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443.
[12] AK v Western Australia (2008) 232 CLR 438 at 468 [85] (footnote omitted).
I consider that the Magistrate adequately exposed her reasoning process linking her factual findings to proof of the charge. On reading the whole of the reasons, it is clear that her Honour positively found beyond reasonable doubt that the events occurred as described by both the complainant and Ms Dixon and that her Honour positively rejected the inconsistent version of the appellant beyond reasonable doubt. Her Honour was entitled to reject the evidence of the appellant and accept the sworn evidence of the complainant and that of Ms Dixon, particularly having regard to the evidence of Mr Hampton and Ms Johnson to which her Honour referred, and which constituted strong corroboration of the evidence of the complainant and Ms Dixon that the subject assault occurred on Monday, 18 March 2019. It is to be emphasised that if Mr Hampton’s evidence that he saw the complainant walking away from the house on Monday, 18 March 2019 is accepted, the defence scenario that he had left on the previous Saturday, 16 March 2019 and did not return until Thursday, 21 March 2019 cannot possibly be correct.
Further, the Magistrate addressed the matters relied upon by the appellant, including what was asserted to be recent invention and collusion and adequately “resolved” those matters. As an example, her Honour stated:
72. The inconsistencies do not undermine the credibility or reliability of the witnesses. They are the sort of inconsistencies that might be expected when recounting an event. In relation to Ms Dixon’s statement in her Family Court affidavit that the accused ‘laid across’ the complainant, I accept that in her mind the relevant allegation was that the accused had placed his body weight on the complainant. The omission of the detail about the location of the accused’s knees is not significant.
I consider that her Honour’s assessment of the witnesses was not formulaic or ritualistic, but rather a balanced assessment of the persons and the specific evidence before her. As an example, her Honour’s “warts and all” assessment of the complainant was as follows:
73. The complainant was aged 18 at the time of giving evidence. The complainant’s reactions to questions were immediate and appeared unfiltered by any concern about how he might be presenting. At times during cross examination he demonstrated the behaviours described by the accused that he exhibited in the family home. He was at time argumentative and belligerent. He readily admitted to being a poor and disruptive student and did not attempt to fill in things that he was unsure of. He made admissions about his attitude to the accused and the derogatory language he used towards him. His evidence about the alleged assault is corroborated by Ms Dixon. The description about feeling ‘pins and needles’ after the assault is a default that has the ring of truth about it. I find the complainant was a truthful and reliable witness.
Her Honour concluded:
76. Ultimately, I do not believe the accused’s account of the boxing glove incident leading to the complainant leaving home on the afternoon of 16 March 2019. On the accused’s account, the complainant left the house after packing a bag on the Saturday and did not return until the Thursday. The accused was steadfast that Mr Hampton was not present at the house on the Saturday and was not there on Monday or on any other day that week.
77. It is improbable that the complainant departed the family home on 16 March and remained absent until the following Thursday. I am satisfied that Mr Hampton witnessed the departure of the complainant on the evening of 18 March. If the complainant had left home on 16 March and not returned until 21 March, Mr Hampton could not have seen the complainant walking down the road away from the house with his bag on 18 March 2019.
78. I do not accept that the witnesses colluded to fabricate their evidence. The whole of the evidence excludes the accused’s account as a reasonable possibility.
Conclusion as to Ground 2 of appeal
For all of the above reasons, I conclude that Ground 2 of appeal is not made out.
Disposition
Neither of the grounds of appeal are made out. I dismiss the appeal.