Dorian v Police - [2009] SASC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DORIAN v POLICE
[2009] SASC 49
Judgment of The Honourable Justice Nyland
26 February 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE
TORTS - TRESPASS - TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY - WHAT CONSTITUTES TRESPASS AND DEFENCES THERETO - TRESPASS TO LAND
Appeal against conviction – appellant found guilty of assaulting estranged partner, contrary to s 20(3) Criminal Law Consolidation Act 1935 (CLCA) – appellant and complainant each gave evidence – Magistrate correctly directed himself that he could not find appellant guilty unless he accepted evidence of complainant beyond reasonable doubt – Magistrate considered aspects of evidence of appellant to be inherently improbable – complainant presented as an honest, reliable witness – appellant complained that Magistrate had failed to consider self-defence and defence of property, pursuant to ss 15 and 15A CLCA – claim of justification as appellant considered complainant guilty of home invasion and planning to abduct child from his care – further complaint as to disallowance by Magistrate of certain questions which appellant put to complainant to impugn her character – appellant unrepresented – disallowance of questions which could potentially have caused prejudice to appellant – straightforward factual dispute – ample evidence to support finding by Magistrate – no error shown in reasoning of Magistrate – appeal against conviction dismissed.
Appeal against sentence – considerable delay between incident, which was the subject of the charge, and imposition of sentence – whether restraining order appropriate – sentence within discretion of Magistrate - not manifestly excessive - appeal dismissed.
Criminal Law Consolidation Act (SA) 1935 ss 15, 15(3), 15A, 15A(1), 15B, 15C, 20, 20(2), 20(3), 80, 170A; Criminal Law Sentencing Act (SA) 1988 s 19A; Evidence Act (SA) 1929 ss 23, 24, referred to.
R v Shueard (1972) 4 SASR 36; R v Calides (1983) 34 SASR 355, applied.
Browne v Dunn (1983) 6 R 67 HL, discussed.
R v North (1982) LSJS 22; R v Jansen [1970] SASR 531; M v R (1991) 181 CLR 487, considered.

DORIAN v POLICE
[2009] SASC 49
Magistrates Appeal

NYLAND J: This is an appeal against conviction and sentence. The appellant was charged on information that on 2 January 2007 at Alberton in the State of South Australia, he intentionally made physical contact directly with Mary Zapris, knowing that she might reasonably object to the contact in the circumstances, contrary to the provisions of s 20(3) of the Criminal Law Consolidation Act 1935 (CLCA). This was designated an aggravated offence as it was alleged that the appellant committed the offence knowing that the victim was his former spouse. The appellant pleaded not guilty to the charge and the matter was listed for trial before a magistrate sitting in the Magistrates Court at Port Adelaide.
The appellant was unrepresented at trial and conducted his own defence. The only witness called by the prosecution was the alleged victim, Mary Zapris. At the conclusion of the prosecution case the learned Magistrate found that there was a case to answer. The appellant then gave evidence on his own behalf. At the conclusion of the trial the Magistrate found the charge proved beyond reasonable doubt.
The appellant had no prior relevant offences. The learned Magistrate recorded a conviction and ordered the appellant to enter into a bond in the sum of $100 to be of good behaviour for a period of 12 months and to re-appear for sentence if called upon to do so. Pursuant to s 19A of the Criminal Law Sentencing Act 1988 (Sentencing Act) the Magistrate further ordered the appellant be restrained until further order from harassing, assaulting or contacting directly or indirectly Mary Louise Zapris, except pursuant to any order of the Family Court for purpose of gaining access to the child, Peter.
Notice of Appeal
In the Notice of Appeal, as originally filed, the appellant asked that his conviction be quashed or that there be a new trial. He complained that the judge had erred in his judgment in addition to which he had not been allowed to properly question the character of the witness, that is, Ms Zapris. He also claimed that Ms Zapris had lied in her statement, lied to the prosecution and had lied on the stand.
On the hearing of the appeal, the appellant produced a further document which was in part an outline of argument, but which also purported to add further grounds of appeal. It included a complaint that the Magistrate had failed to consider the issue of self-defence. The appellant claimed that s 15 CLCA did not require the threat to be of a physical nature and that Ms Zapris was acting unlawfully and she “was the threat”. He also complained that the Judge erred by not considering s 15A CLCA which relates to defence of property. He asserted that Ms Zapris was a trespasser and that he had removed her because she was committing a criminal trespass. The appellant also relied on s 15C CLCA to allege that Ms Zapris had committed a home invasion. He also referred to s 80 CLCA and submitted that Ms Zapris had unlawfully entered his residence by force and planned to take Peter, who was in the lawful custody of the appellant at the time and that in her statement to the police and by evidence given at trial, Ms Zapris admitted that she was at his premises to commit a crime. The appellant also complained of a factual error by the Magistrate who, in his reasons for judgment, referred to it being “common ground that the defendant was very angry, or quite angry” when the incident occurred. The appellant submitted that there was no evidence upon which the learned Magistrate could find that he was “angry” or “quite angry”. He reiterated and complained that Ms Zapris had lied on oath and suggested therefore that she was guilty of perjury. He also complained that the Magistrate had erred in not considering s 170A CLCA which relates to criminal trespass in a place of residence.
Evidence of Mary Zapris
Ms Zapris said she first met the appellant in about July 2001. They lived in a de facto relationship until about November 2005. They had a child, Peter, who was born on 14 November 2003. On 2 January 2008, Ms Zapris attended at the appellant’s house at about 4.00 pm to hand Peter over to the appellant, pursuant to Family Court arrangements. Ms Zapris said that when she arrived at the house, the appellant was agitated about an incident that had occurred about two weeks’ earlier during an access hand-over. The appellant was apparently talking to his sister on the phone when he opened the door to Ms Zapris and said, “You can tell my sister that I am not a bad father”. Ms Zapris said he then threw the phone at her to speak to his sister. Ms Zapris said she then spoke to his sister, Lisa, and asked what was this about. Lisa said that the appellant wanted them to apologise about the earlier incident. She said the conversation only lasted a matter of seconds. She then walked into the lounge room. The appellant was sitting in the lounge with Peter on his lap. The appellant then said something like, “Look at your mummy, isn’t she fat? Isn’t she ugly? Your mummy is a bad mummy.” Ms Zapris said Peter looked confused, distressed and upset, so she left the house and returned to her car. She said however that as she was reversing out, the appellant and Peter were at the front door and Peter was crying. She said that prior to walking out of the lounge room, the appellant had said to her, “You still owe me an apology. Get in your fucking car then, you still owe me an apology” and was screaming at her. She said that when she was in the car, she was scared for the child, so she returned to the house and knocked on the door with the intention of removing Peter from the premises. When the appellant answered the door, she stepped into the house and said:
You can’t – we can’t keep doing this in front of Peter, this isn’t fair on Peter. I’m not going to give you the power, and he said, “Well, I have got the power”, and the next thing, Peter was at the end of the passageway and he was crying and he came forward and Colin picked him up and Colin said, “Just leave the fucking house” and he let out with his leg twice.[1]
[1] Transcript p 8.
She said the appellant tried to force her out of the house and kicked and open-handed her and pushed her out of the house. She said he kicked with his left leg and it connected on her right leg and that he did that twice. She said the blows were forceful enough that she went back and slightly to the side. She said that the appellant pushed her with his left hand on her right shoulder. She said she was a bit shocked. Peter was in the appellant’s right arm and was upset and crying. She said that the appellant was agitated from the minute they had arrived at the property and his demeanour the second time the door was opened was that he was angry. She said that when the door closed a second time, she got into her car and went straight to Port Adelaide Police Station and reported the assault and gave a statement to a police officer. She said that as a result of the incident she received some bruises on her right leg, but did not require medical treatment. No photographs were taken of her injuries.
In the course of cross-examination, Ms Zapris acknowledged that she had taken anti-depressants for postnatal depression for about six months, but said she never had thoughts of harming her son. Ms Zapris agreed that there was an occasion on which she had dislocated her son’s elbow, but denied having done so deliberately. She said this had happened when she had simply pulled the child away from running on to the road. Immediately thereafter, she and the appellant took the child to hospital. At that point, the Magistrate intervened and queried the relevance of this evidence to the current proceedings. The appellant responded that on the occasion Ms Zapris dislocated Peter’s elbow, she was angry and she was also angry on the day of the alleged offence. He therefore queried what she would have done to get Peter out of the house.
The appellant also asked questions as to what had happened on the earlier access occasion and in response to that questioning, Ms Zapris mentioned that she was in fear of the appellant. The appellant then asked her why she was fearful. The prosecutor objected and pointed out that care had to be taken not to include incidents that might need people to be cautioned. The Magistrate then told the appellant that the facts in issue should be confined to this particular charge. He went on to say:
There might be an argument that the track record would suggest that it could have happened in another way, because of previous behaviour on the part of the witness, or indeed yourself, but I am concerned that if certain things are put it goes on for ever. … We are not here to examine why the wheels, as they obviously did, fell off your relationship, with different versions of incidents leading up to the separation. If you want to go through that dreary process thankfully you go through it in the Family Court, but not today thank you, so not, I don’t think that is relevant. I so rule.[2]
[2] Transcript p 17.
The appellant nevertheless asked Ms Zapris whether he had ever been physically violent to her. The Magistrate again intervened and pointed out that there could be a disastrous answer which would open up a “can of worms”. The appellant replied that he was “pretty confident that it won’t open a can of worms” but the Magistrate was not prepared to allow for that possibility and upheld the objection by the prosecutor.
Ms Zapris denied that she was yelling when she came into the house, but admitted that she was speaking very loudly and making hand gestures. She agreed that she was agitated when she returned to the house a second time but said she wanted the child out of there.
The appellant also asked Ms Zapris if she had lied in the statement she had made to the police. He referred to the fact that the matter had been due to be heard in court at an earlier date but that she had told the prosecutor that she could not get there at that time because she was starting a new position at work and could not get time off. The appellant suggested however that she had taken a day off to go to the Royal Show and he wished to call evidence about that to show that Ms Zapris was a “liar”. The appellant indicated that this evidence was relevant to Ms Zapris’ character, but the Magistrate disallowed the question.
Evidence of the appellant
The appellant gave evidence on oath. He said that he was talking to his sister on the phone when Ms Zapris arrived and that he had called her a bad mother because of the previous incident. He said that after he called her a bad mother, she left crying. Peter then opened up the toy box and was playing happily when Ms Zapris returned. The appellant said that Ms Zapris started yelling and pointing, was obviously upset at the comment about her being a bad mother. He said she took about a step and a half into the house until he asked her to go. He went to close the door but she stuck her foot down and put her hand out so he could not close the door. He said he asked her again to leave and pushed her to try and get her arm off the door so he could close it. He said at no stage was Peter stressed.
In cross-examination, the appellant agreed that he was upset about the incident which had occurred about two weeks earlier and that when Ms Zapris dropped Peter around on this occasion, he was angry with her. He agreed that Ms Zapris was crying when she left, but maintained the child was completely unaffected. He said that when he opened the door on the second occasion, he “wasn’t, like, really angry” and he just said, “get out, get out”. He said that when he pushed her, she still had her foot in the door. He disagreed with the suggestion that he had been really angry when she returned on the second occasion and maintained his anger had abated. He denied that he kicked Ms Zapris twice to the right thigh area, as she described, or at all. He maintained that she had entered his house uninvited and all he had done was to push her to get her arm off the door so he could close it.
Reasons for judgment
In his reasons for judgment, the Magistrate correctly directed himself that he was required to examine the evidence to see whether he could be satisfied beyond reasonable doubt that the events occurred in the manner deposed to by Ms Zapris. If he could not reach that conclusion, and if there was a reasonable hypothesis consistent with innocence which was open to him, then the appellant had to be given the benefit of the doubt.[3]
[3] R v Calides (1983) 34 SASR 355.
The learned Magistrate referred to s 15 CLCA but considered that it did not apply as there was no evidence to suggest that the appellant at any stage, on any version of the events, felt that he was in danger of being physically attacked by his estranged partner and therefore entitled on self-defence principles alone to remove her. The Magistrate went on to look at what he described as the “undisputed evidence” and said:[4]
It is common ground that the defendant was very angry or quite angry when she arrived. This is demonstrated by the indisputable fact that he demanded an apology as a result of his perception that something which was unfairly said, and which apparently, although not said in the presence of his sister, must have become known to her on his perception, because he was demanding that Ms Zapris apologise for that. That is the action of a person who is quite angry. Then, of course, there is the fact that it is undisputed that he did tell her that she was a bad mother and that she was upset and distressed and tearful before she left on the first occasion.
[4] Transcript p 4 [22] Ex Tempore Judgment of Mr D Gurry SM 1 October 2008.
The Magistrate referred to the evidence of the appellant that he had calmed down in the two minutes before Ms Zapris returned and described that evidence as inherently improbable. He considered that the totality of the evidence led to the conclusion that it was inherently improbable that the events would have occurred in the manner deposed to by the appellant. He preferred the evidence of Ms Zapris where there were areas of conflict and made findings of fact accordingly. He accepted Ms Zapris’ evidence beyond reasonable doubt that she was kicked by the appellant on the two occasions described by her. He said that it was clear that the appellant was angry and in his view, had overreacted drastically and lashed out at Ms Zapris after she had returned to the premises. He considered it inherently improbable that the appellant’s anger would have abated over the short period of time between Ms Zapris’ initial departure and her subsequent return. The Magistrate commented that Ms Zapris gave the impression, by her demeanour, of being an honest and reliable witness. He concluded that the appellant intentionally made physical contact with Ms Zapris directly, knowing that she might reasonably object to the contact in the circumstances and found that constituted an assault under s 20 CLCA. He said that the appellant could not avail himself of the defence provided by s 20(2) CLCA as it was not conduct that lay within the limits of what would generally be accepted in the community as normal incidents of social interaction or community life. Nor was it conduct that was justified or excused by law. The learned Magistrate therefore found the charge proved beyond reasonable doubt.
Sections 15, 15A, 15C, 80 and 170A CLCA
In the course of argument on the appeal the appellant maintained that the learned Magistrate erred in finding the charge proved by not considering various CLCA provisions. He referred to s 15 CLCA, which provides:
Self defence:
(1)It is a defence to a charge of an offence if—
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist1.
A defensive purpose is defined in s 15(3) CLCA and includes a person acting in self-defence or in defence of another. The appellant also referred to s 15A(1), which relates to the defence of property and provides:
(1)It is a defence to a charge of an offence if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable—
(i)to protect property from unlawful appropriation, destruction, damage or interference; or
(ii)to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass …
(c)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist1.
Section 15B CLCA refers to the principles of reasonable proportionality and provides that:
A requirement for the defendant’s conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her.

The appellant also relied on s 15C CLCA which is concerned with a person acting in a defence against a home invasion. A home invasion means a serious criminal trespass committed in a place of residence.
Essentially, the appellant argued that he had been justified in removing Ms Zapris from the premises as when she returned on the second occasion, it was her intention to remove Peter from his custody. That would have been an offence under s 80 CLCA which relates to the abduction of a child under the age of 16 years. His actions were therefore justified.
Each of these matters might have had some relevance if the assault charge against the appellant had related to his admitted act of pushing Ms Zapris out of the house. That was not, however, the case against the appellant. The assault alleged against the appellant was that he kicked Ms Zapris on two occasions. The appellant denied that he had assaulted Ms Zapris in the way she described. He did not say that he kicked Ms Zapris in order to remove her from the premises, nor that he was responding to an assault by her. The issue for decision by the Magistrate was therefore a simple question of fact. On the appellant’s own evidence, the issue of justification did not arise. The Magistrate nevertheless bore in mind the question of self defence, as he said[5]:
The first issue is whether on the facts I can find beyond reasonable doubt that it occurred in the manner deposed to by Ms Zapris. If it did it is my view that what the defendant did was unreasonable and excessive and that he was not entitled to remove her from the premises as a trespasser by doing what Ms Zapris says he did. On the other hand, if all he did was on his evidence push her out of the door without kicking her, and do this in the face of a persistent refusal on her part to leave, then I think it might be open for me to conclude that he should get the benefit of the doubt and that the force he used was not unreasonable and excessive.
[5] P 4 [21] Magistrate's Reasons.
I agree with that conclusion. On the evidence given by the appellant at the trial, this was not a case of self defence, nor for that matter was it a home invasion. The evidence of Ms Zapris, as accepted by the Magistrate, was that she returned to the house to collect the child as a result of her concern at his distress. In those circumstances, I do not consider that any of the CLCA sections referred to by the appellant were relevant to the charge against him.
“Common ground that the defendant was very angry or quite angry”
The appellant in evidence admitted that he was angry when Ms Zapris first arrived at the house, but maintained that his anger had abated by the time she returned on the second occasion. He therefore complained that the Magistrate had erred in finding it was “common ground” that the appellant was “very angry or quite angry” on the second occasion. This was, however an ex tempore judgment delivered by the learned Magistrate at the conclusion of the evidence. Perhaps he was not quite correct when he said that it was “common ground” that the defendant was “very angry” or “quite angry” when describing the appellant’s state of anger on the second occasion. Putting the Magistrate’s remarks in context, however, it was a reasonable inference to draw from all of the evidence that the appellant was in fact “quite angry” throughout the whole of this incident. The appellant himself acknowledged that he was “angry” when Ms Zapris first arrived and his language and actions thereafter support the finding by the learned Magistrate that it was inherently improbable that the appellant’s anger would have abated in the short period of time between the two visits to the house and that, in those circumstances, he did not have any cause to doubt Ms Zapris’ reliability as a witness.
Cross-examination as to credit
In his original notice of appeal the appellant complained about the Magistrate refusing to allow him to properly question the character of Ms Zapris. This appeared to relate to a number of topics, namely:
(1)    whether Ms Zapris had taken a day off to attend the Royal Show when she maintained that she had not been able to take time off to attend Court;
(2)    Ms Zapris’ mistreatment of her son prior to the incident which was the subject of the charge;
(3)    whether Ms Zapris was in fear of the appellant, and
(4)    whether the appellant had ever been physically violent to Ms Zapris.
Section 23 of the Evidence Act provides as follows:
23—Rules as to relevancy
In deciding whether a question affecting the credibility of a witness is relevant, or ought to be allowed, the judge shall have regard to the following considerations:
(a)such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;
(b)such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect only in a slight degree, the opinion of the court as to the credibility of the witness on the matter to which he testifies;
(c)such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence.
Section 24 of the Evidence Act 1929 provides
24—Disallowance of certain questions in cross-examination
(1)If any question put to a witness upon cross-examination relates to a matter not relevant to the proceeding, except in so far as it affects the credit of the witness by injuring his character, it shall be the duty of the court to decide whether or not the witness shall be compelled to answer it, and the court may, if it thinks fit, inform the witness that he is not obliged to answer it.
(2)In exercising this discretion the court shall have regard to the considerations referred to in section 23.
It is evident from the various comments made by the Magistrate in the course of the trial that he was mindful of the prior unhappy relationship between the parties and issues which appear to have been canvassed in Family Court proceedings. He was therefore anxious to confine the trial before him to the discrete matter which was the subject of the proceedings before him. None of the questions which the appellant sought to put to Ms Zapris to impugn her character appear to have been of sufficient weight to assist the Magistrate in reaching a conclusion with respect to the offence charged. For example, the question directed to the time off work appears to relate to a relatively minor matter and in my view, the truth of that imputation would have only had a minimal, if any, effect upon the learned Magistrate’s assessment of the credibility of Ms Zapris. Nor would further questioning of Ms Zapris as to the treatment of her son assisted the Magistrate. Ms Zapris provided a reasonable explanation as to how her son’s elbow was injured. That related to an occasion other than that which was the subject of the proceedings before the Magistrate. The learned Magistrate was correct in ruling that this had limited, if any, relevance to the proceedings before him, which were concerned with an alleged assault by the appellant on Ms Zapris. The Magistrate was understandably concerned about the appellant putting questions to Ms Zapris about her being in fear or him, or having been subjected to physical violence by him in the past. The Magistrate was clearly mindful of the fact that the appellant was unrepresented and would not have fully understood the potential implication of such questions and the potentially prejudicial material which might have emerged as a result.
Inconsistent statements
The appellant also sought to impugn Ms Zapris’ credit by arguing that there were inconsistencies between the evidence given by Ms Zapris in court, as opposed to what she said to the police on such topics as prior violence by the appellant and whether the telephone had been thrown at or handed to Ms Zapris when she arrived at the house. Prior to the appellant cross-examining Ms Zapris, the Magistrate explained the rule in Browne v Dunn[6] to him. Apart from some preliminary questions relating to the friend who accompanied Ms Zapris to the police station, the appellant does not appear to have cross-examined Ms Zapris about inconsistencies arising between her statement to the police, as opposed to her evidence in court. On the hearing of the appeal, the appellant conceded that was so, but said that he assumed the learned Magistrate, having read her statement, would have been aware of the inconsistencies and that should have caused him to have a reasonable doubt about her credibility. The original statement made by Ms Zapris to the police was not however in evidence before the learned Magistrate. The appellant’s record of interview with the police was admitted as Exhibit P1, but contains very little information about the actual complaint made to the police by Ms Zapris. The Magistrate correctly took the view that it was essentially a denial by the appellant of the allegation of assault and commented that it took the matter no further one way or the other. He drew the inference that, consistent with the evidence in court, the appellant had always denied he was guilty of the offence.
[6] (1983) 6R 67 HL
Unsafe and unsatisfactory
In his original appeal, the appellant sought to appeal against the whole of the judgment of the learned Magistrate. I treat this as a complaint by the appellant that the conviction recorded by the Magistrate is unsafe and unsatisfactory. To support such a ground, it is necessary for the appellant to show that the verdict is unreasonable and cannot be supported by the evidence. It is not enough to show that the evidence given at the trial is open to criticism. If there is evidence which, if fairly regarded, could have led a reasonable jury (in this case the Magistrate) to return a verdict of guilty, a conviction will not be quashed on the ground that the verdict was unreasonable, even if the Appeal Court would not necessarily have regarded it as establishing guilt[7].
[7] R v Shueard (1972) 4 SASR 36 at 39; R v North (1982) LSJS 22 at 29-30; R v Jansen [1970] SASR 531.
In order to resolve this matter, it is necessary for me to make an independent assessment of the evidence and to consider whether on a consideration of the whole of the evidence, it was open to the learned Magistrate to be satisfied beyond reasonable doubt of the guilt of the appellant[8]. At the end of the day, this was a straightforward, factual dispute between the two witnesses. The Magistrate could only find the appellant guilty if he was satisfied beyond reasonable doubt that Ms Zapris had told the truth about what had occurred. I bear in mind that the Magistrate had the advantage of assessing the evidence of both witnesses when they gave evidence. He correctly directed himself that if he could not reach the conclusion that the events had occurred in the manner deposed to by Ms Zapris and that if there was a reasonable hypothesis consistent with innocence, which was open to him, then the appellant had to be given the benefit of the doubt. The Magistrate was however satisfied that Ms Zapris was an honest and reliable witness, whereas there were aspects of the evidence of the appellant which he found inherently improbable, such as the appellant’s evidence as to his state of anger on the second occasion.
[8] M v R (1994) 181 CLR 487 at 492-3.
I also have difficulty in accepting the evidence of the appellant that he had calmed down in the short space of time which elapsed between his initial and quite aggressive confrontation with Ms Zapris and her return. It is also unlikely that Peter would not have been affected by an incident in which his father sought to involve him in the dispute by making offensive remarks to him about his mother, resulting in his mother leaving the house in tears. Having conducted an independent review of the evidence, I am satisfied that there are ample grounds to support the conclusions reached by the learned Magistrate. The appellant has failed to establish any grounds upon which would require this Court to interfere with the findings made by the learned Magistrate. The appeal against conviction is therefore dismissed.
Appeal against sentence
The appellant also appeals against the sentence imposed by the learned Magistrate. His primary contention appeared to relate to the delay between the incident, which is the subject of the charge, and the date of the conviction, being a period of about two years, which he says was without further incident. In those circumstances he questioned the relevance of the restraining order. In my opinion, however, upon the recording of a conviction for assault, the Magistrate took an appropriate approach to the question of sentence by requiring the appellant to enter into a bond to be of good behaviour and also imposing a restraining order. Those orders were within the discretion of the learned Magistrate and it cannot be said that the sentence was manifestly excessive. The appeal against sentence is dismissed.