Jaunay v Police

[2023] SASC 38

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

JAUNAY v POLICE

[2023] SASC 38

Judgment of the Honourable Justice Stein 

24 March 2023

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

MAGISTRATES - HEARING - PROCEDURAL FAIRNESS AND NATURAL JUSTICE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

Following a trial in the Magistrates Court, the appellant was found guilty and convicted of the offence of assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). The appellant was alleged to have assaulted the complainant on 25 October 2013 while on duty as a police officer. The complainant took an audio recording on his mobile phone shortly after the alleged offending. Although the Magistrate found the complainant to be a poor witness, the Magistrate found beyond reasonable doubt that in part of the audio recording the appellant was admitting to the charged offence and convicted the appellant.

The appellant appealed against the conviction on the following grounds:

1.It was not open on the evidence for the Magistrate to return a verdict of guilty.

2.The Magistrate erred in finding the audio recording recorded an admission and failed to afford the appellant procedural fairness. 

Held, allowing the appeal, quashing the conviction and remitting the matter for retrial before a different Magistrate:

1.The Magistrate erred in finding beyond reasonable doubt that the words “ya fairy mates” were spoken in the recording and rejecting the possibility any other words were spoken.

2.The Magistrate erred in reasoning that the phrase “belted you one” was only attributable to a blow with the hand and in reaching that conclusion by his personal understanding and observed use of the phrase.

3.The prosecution case was run on the basis the words “belted you up” were spoken in the audio recording and the Magistrate made a factual finding that the words “belted you one” were spoken. That factual finding, together with the Magistrate’s personal understanding of the meaning of the words found to have been uttered, were significant in the Magistrate’s reasoning to guilt.  Consequently, in the particular circumstances of the case there was an obligation to afford procedural fairness by giving the parties the opportunity to make further submissions.

Criminal Law Consolidation Act 1935 (SA) ss 20(3); 20(4); Magistrates Court Act 1991 (SA) s 42(1); Supreme Court Criminal Rules 2014 (SA) ch 12A, referred to.

Boyle v The Queen [2022] SASCA 50; Browne v Dunn (1893) 6 R (HL) 67; Fox v Percy (2003) 214 CLR 118; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Macks v Viscariello (2017) 130 SASR 1; Martin v Department of Transport, Energy & Infrastructure [2010] SASC 141; MDM v The Queen [2020] SASCFC 80; Nathanson v Minister for Home Affairs (2022) 403 ALR 398; R v Hazim (1993) 69 A Crim R 371; R v Singh [2019] SASCFC 51; S, N v Police [2021] SASC 49; Shepherd v The Queen (1990) 170 CLR 573; Stead v State Government Insurance Commission (1986) 161 CLR 141; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, considered.

JAUNAY v POLICE
[2023] SASC 38

Magistrates Appeal:  Criminal

STEIN J.

Overview

1. The appellant, Mr Andrew Allan Jaunay, is alleged to have assaulted Mr Matthew Odgers, the complainant, on 25 October 2013 while on duty as a police officer.  I will refer to Mr Jaunay as the appellant and to Mr Odgers as the complainant.  An audio recording was made by the complainant on his phone very soon after the alleged assault.  The audio recording captured some exchanges between the appellant, the complainant and other individuals.  After a trial in the Magistrate’s Court, the Magistrate found beyond reasonable doubt that in part of the audio recording the appellant was admitting to the offence charged. The Magistrate convicted the appellant.  The appellant appealed the conviction.  The appellant raised issues associated with the content and interpretation of the audio recording and asserted a breach by the Magistrate of the obligation to accord procedural fairness. 

   Background

2. The appellant was charged with assaulting the complainant on 25 October 2013 at Whyalla Stuart contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”).  The offence was aggravated by reason of having been committed by a police officer.

3. A second police officer, (“H”), was also charged with assaulting the same complainant and causing him harm contrary to s 20(4) of the CLCA.

4. A significant passage of time elapsed between the event and the trial which took place in 2021.

5. The prosecution opened its case against the appellant with the following particulars for count one against the appellant:[1]

   [The appellant] then strikes him [the complainant] to the left cheek, left side of his rather, with his right open palm, and this is count one. He was hit with enough force that it knocked him to the ground where he hit the back of his head on the concrete and rolled around.

   [1]     Police v Jaunay and Hobbs (Magistrates Court of South Australia, 18 November 2021) (“Magistrate’s reasons”) at [17].

6. Prosecution called the complainant, the complainant’s mother, Ms Maria Odgers, a doctor who examined the complainant the day after the incident, and a police officer present at the incident.  Prosecution tendered, among other things, an agreed statement of the complainant’s friend (“B”) present at the time of the incident, photographs, a disk of an audio recording taken by the complainant during the incident and, as an aide-memoire, a transcription of the audio recording.

7. I set out below a summary of the evidence referred to in the Magistrate’s decision.

   The evidence

   Complainant

8. The complainant was 17 years old at the time of the alleged offending.  The complainant was subject to a bail agreement which contained a curfew.  The complainant gave evidence of walking from his brother’s house to meet B at an address in Panter Street in Whyalla Stuart on the night of 25 October 2013.  The complainant intended to catch up with B and then invite him back to his house to play computer games. The complainant said he left his brother’s house and almost immediately called his mother and asked her to pick him up with B.  When walking into Panter Street, the complainant saw a grey car which drove past and then returned.  The car was an unmarked police car.  The police officers in the car spoke to the complainant and they then got out and searched the complainant, finding a cone piece.  The complainant was given a drug citation as a result.

9. The complainant thought towards the end of the citation process he saw B walking towards him.  The complainant said he asked the police officers to leave but the appellant said “you can fucking leave when I tell you to leave”[2] and said “I’ve seen your type before, you think you’re tough”.[3]  The complainant said the appellant threatened to smack him in the head with his torch when he asked to leave.  The complainant stated he made a blowing sound, described as “pfff”, and laughed in shock.[4]  The complainant said the appellant then struck him to the left side of his face with his palm.  The complainant described the blow as being hard enough to knock him onto the ground.

   [2] T291; Magistrate’s reasons at [22].

   [3] T292; Magistrate’s reasons at [22].

   [4] T292; Magistrate’s reasons at [22].

10. The complainant alleged that H then assaulted him.  He asserted H smashed his phone out of his hand and that H with a hand around his throat lifted him into the air and slammed him to the ground, placing his knee on his chest.

11. The complainant said he then started the voice recording function on the phone accidentally.

12. The complainant said his mother arrived at the scene a couple of minutes after the alleged assaults occurred.  When his mother arrived, the appellant was kneeling and speaking to him in a threatening way and then the appellant hurried over to his mother’s car.  The complainant could not recall the words used by the appellant when he spoke to him just prior to his mother arriving at the scene.

13. The complainant identified the appellant as the officer who had struck him. The complainant was able to distinguish between the different police officers based on their hair.  The appellant was described as the “bald-headed officer”.[5]

    [5] Magistrate’s reasons at [21].

    Audio recording

14. The content of the audio recording formed a significant part of the prosecution’s case.  I set out below the transcript of the audio recording which was received by the Magistrate as an aide-memoire.[6]

    [6] Magistrate’s reasons at [31].

    Officer:Ok little man. Here’s what we’re going to do. We’ll send you an appointment to say drugs are bad – look at me – 9:30 on Wednesday the 30^th of October.

    Mathew:Yep.

    Officer:Ok.

    Mathew:Yep.

    Officer:Turn up, Because if you don’t I have to do a lot of typing.

    Mathew:Yep.

    Officer:If I have to do typing I get very angry because I’m an old man and I’ll come and hunt you down.

    Mathew:Alright.

    Officer:(Whispered) Now, if you want to tell your Mum that we (inaudible) you mate, that we fucking belted you up, guess what? Go right ahead.

    Mathew:Alright.

    Officer:Up to you.

    Mathew:Alright.

    Officer:Your choice. You want to be a man and play with the big boys. Then it’s your turn to play ok.

    Mathew:Alright.

    Officer:(Whispered) Just remember, I ain’t going anywhere pal.

    Mathew:Alright. Yep.

    Officer:Alright?

    Mathew:Yep.

    Officer:Your choice.

    Mathew:Yep.

    Officer:There you go.

    Mathew:Yeah.

    Officer:Congratulations.

    Mathew:Yep.

    Maria:Apparently someone hit you.

    Mathew:Yep they did.

    Maria:Who hit you.

    Mathew:This right here.

    [pause]

    Officer:Well if you believe that you’re crazy.

    Mathew:Reece did I end up getting knocked on the ground or what.

    Maria:Well –

    Officer:Well I don’t know how he’d know because he was at the end of the street.

    Mathew:Did I get knocked on the ground or what?

    Officer:Well I don’t know how he’d know he was at the end of the street.

    [people talking at once]

    Maria:Well, I’d like your names please.

    Mathew:Look at this Mum, he Mum Mum, look at this fucking hit me.

    [background noise]

    Maria:Alright –

    Mathew:Mum, I wouldn’t lie. Fuck! Mum would I lie.

    Maria:Language.

    [background noise]

    Officer:If you believe that I’m assaulting people on the side of the road

    [background noise]

    Maria:I’m just asking a question.

    Officer:Yeah. My name’s on there, if you want to make a complaint that’s fine. I’m afraid that’s (inaudible).

    Maria:I’m just asking. I’m just asking a question, that’s all.

    Officer:If you believe that I –

    Maria:I’m not being funny.

    Officer:That I would do that to a child on the street, then you must have rocks in your head. Alright.

    Maria:Well.

    Mathew:Oh wow (with laugh).

    Maria:I know it does happen –

    Officer:You are a very cheeky boy.

    Mathew:Me?

    [Voices]

    Officer:No, you should be under arrest, because you’ve been swearing –

    Mathew:You’ve just been lying to my Mum!

    [two voices at once]

    Maria:Will you be quiet, please. I’m talking> There’s no need for that.

    [static]

    Officer:He’s a very cheeky boy –

    [static]

    Officer:He’s been saying things and carrying on and he’s been told to shut his mouth about 20 times.

    Maria:Alright well, apparently –

    Officer:He’s typical, spoiled Gen Y – Well, I don’t know how he would know because he was (inaudible) hundred metres up the street.

    Mathew:Hand on, what… (inaudible) 70 (laughs)

    [Talking in background]

    Mathew:Hey Reece, were you not at that corner?

    Reece:Yeah (inaudible)

    [Maria and Officer talking, inaudible]

    Officer:He’s more than welcome to play…

    Maria:[Inaudible]… play with you…

    Officer:Yes. It’s not. No it’s not.

    Maria:But, you haven’t got the right to…

    Officer:…assault anyone.

    Officer:Well, I actually, well I’m allowed to use reasonable force with him [inaudible] and he should be under arrest, I just can’t be bothered arresting a little boy tonight.

    Maria:Well –

    Officer:Alright.

    Maria:I don’t think a man need to be hitting a little boy that’s… assault.

    Officer:Well I didn’t hit him.

    Maria:…. Assault. That’s all I’m saying.

    Officer:He’s not a little boy the way he’s been acting.

    Maria:He is still a little boy.

    Officer:We’ve said enough tonight. We’re going. Ok.

    Maria:Ok.

    Officer:You make the choice.

    Maria:Righteo. In the car you 2.

    Mathew:Yip.

15. During cross-examination, the appellant’s counsel put to the complainant that the audio recording recorded different words.  In particular, the appellant’s counsel put to the complainant that the words were “if you want to tell your mum fairy tales or fairies, that we fucking belted you, guess what, go right ahead”.[7]  This version was denied by the complainant.

    [7]     Magistrate’s reasons at [33] (underline in original).

16. The complainant was cross-examined about a number of inconsistent answers and prior inconsistent statements.

    Complainant’s mother

17. The complainant’s mother gave evidence of receiving a telephone call from the complainant to the effect that the complainant was leaving his older brother’s house to walk to a friend’s house in Panter Street.  He asked his mother to pick him up from the Panter Street address.  The complainant’s mother said that while driving to collect the complainant, she received another call from him in which he said that she needed to come and get him quick.  She said the call cut out while she was speaking with him.

18. The call charge records from the complainant’s phone showed a 32 second call at 9.34 pm and a subsequent call six minutes later with the duration of six seconds.  The complainant’s mother could not recall which call was which.

19. The complainant’s mother said that, when reaching Panter Street, she slowed down near B’s house and noticed a car on the same side of the road with its headlights facing her.  She saw B sitting on a fence, her son sitting on the ground, a police officer squatting down and two more police officers standing next to her son.  The complainant’s mother described the police officer squatting next to the complainant as bald headed and squatting with his face about half a metre from her son.  She said when she stopped her car the bald‑headed officer jumped up from where he was squatting and walked over to her car.  He gave her a piece of paper and told her there was no need for her to get out of the car and that police needed to speak with her son for a few more minutes.  She was told she needed to sign the piece of paper given to her.  The complainant’s mother said the officer was breathing heavily.  The complainant’s mother thought B was about seven metres away from the complainant.

20. The complainant’s mother said the bald-headed officer then walked back to her son and squatted in front of him.  B walked over and spoke to her, after which she got out of her car very quickly.  She walked towards her son and the officer and then said words to the effect that somebody had been assaulting her son.

21. The complainant’s mother said her son stood up, pointed to the appellant and said he had been hitting him.  The complainant’s mother said the appellant replied to the effect that if she believed that, she must be crazy.

22. The complainant’s mother looked at her son and noticed he had a mark on his face and marks on his knees and he looked shaken.  She gave evidence that she asked again about her son being hit to which the appellant responded “if you think I go around hitting little boys, you must have fucking rocks in your head”.[8]  The complainant’s mother went home and called the police.  She consoled her son before taking pictures with her mobile phone of his injuries which included bruising and swelling to his cheek.  The following day she took her son to a local doctor and took further photographs.

    [8] Magistrate’s reasons at [50].

23. The complainant’s mother said she became aware of an audio recording made by her son which her son sent to her.  She listened to it in its entirety on his phone and then forwarded a copy of the recording to a friend.  Her phone with the copy of the recording and photographs were later seized.

24. The complainant’s mother identified her voice and the voice of the bald‑headed officer in the audio recording.

    Officer Fergusson

25. Officer Fergusson was a police officer involved in the events of the evening.  He was patrolling in an unmarked police car with the appellant and H.  Officer Fergusson recalled seeing two males walking on Panter Street one of whom was the complainant.  Officer Fergusson said the complainant was spoken to and searched while standing up and a cone piece was found.  While Officer Fergusson was focusing on B, he heard what he described as a yelp and on turning around saw the complainant sitting on the ground with the appellant and H standing either side of him.

    Dr Patel

26. Doctor Patel gave evidence that on 26 October 2013 at 4.20 pm, the day after the alleged offences, the complainant and his mother attended his surgery.  With the assistance of his notes, Dr Patel said that the complainant complained of soreness in his back, neck, cheek, legs and knees.  In cross-examination, Dr Patel conceded that nowhere in his notes was there a reference to the complainant complaining of soreness to the back of his head.

27. Dr Patel conducted a physical examination of the complainant in which he observed and noted a number of injuries.  These injuries included abrasions on both knees (but mainly on the left) and a mild abrasion on the back.  He noted that it appeared as though the complainant had an abrasion on his neck.  In cross‑examination, Dr Patel accepted that he had recorded this mark on the complainant’s neck as “very very light”.[9]  He also observed a bruise and an abrasion on the complainant’s face. 

    [9] Magistrate’s reasons at [66].

    B

28. Both parties agreed to admit the statement of B.  B recalled that on 25 October 2013, he observed three officers talking to the complainant.  B said he walked up Panter Street and heard one of the officers asking the complainant how he was going to get home given his curfew.  B saw the complainant call his mother, telling her to hurry up and pick him up in a manner that was described as rude.  B said this upset the appellant who told the complainant that he was lucky he did not hit him with his torch.  The complainant responded, “you can’t do that”, to which the same officer replied, “I can say what I want, I’m a police officer”.[10]  The officer told B to leave before he was arrested.  B began to walk away from the complainant but continued to look back.  When he was about 20 metres from the group, B saw one of the officers push the complainant over, causing him to fall to the ground.  B did not witness the appellant strike the complainant’s face but did hear the complainant crying.  He heard the complainant say, “did you see that?”.[11]    

    [10] Magistrate’s reasons at [69].

    [11] Magistrate’s reasons at [71].

29. B saw the officer with a tattoo on his arm walk up to the complainant, who was on the ground, and smash the phone out of the complainant’s hand.  The complainant’s mother then arrived in her car.  B heard the appellant say to the complainant that they would be seeing him again.

30. B observed grazes on the complainant’s knees and a red mark around the complainant’s neck but did not see how it was caused.  B did not hear the complainant swear before he was put on the ground by the officer.

    Closing addresses

1. During closing submissions, the prosecution accepted that during the complainant’s evidence there was some embellishment and there were some inconsistencies.  Prosecution submitted what was important was the corroboration of the injuries and, while B did not see everything, the fact he did not see the act was not enough to cause doubt and what he did see supported the appellant’s aggressive behaviour.  The prosecution submitted that even without the audio recording there was clear evidence of injuries consistent with the complainant’s account from Dr Patel.

2. In relation to the audio, the prosecution submitted the appellant was demeaning, insulting and threatening and the statements constituted an admission that he had “belted up” the complainant and that he intended to lie about it if the complainant told his mother.  The prosecution submitted the appellant was threatening towards the complainant when the complainant’s mother was arriving.   The prosecution submitted the statements recorded were an admission by the appellant to having struck the complainant with his right hand to the complainant’s left cheek, knocking him to the ground. 

3. Counsel for the defence pointed to the indecipherable, inaudible words in the recording and submitted that the Magistrate could not read the sentence without considering the inaudible words.  Counsel submitted that if the words were exculpatory, then it would make the subsequent comment about being liars less clear and potentially nonsensical.  Counsel submitted that where there are words in the sentence that are unclear and have the potential of changing the meaning of the sentence then the Magistrate would have less confidence in finding that the subsequent sentence must be inculpatory.  That is because the sentence is informed by the context of the prior sentence. 

4. Counsel for the defence submitted that the complainant’s evidence was unsatisfactory in every material particular and pointed to significant criticisms including exaggeration, lies and inconsistencies in his evidence.  Counsel submitted that Officer Fergusson’s evidence was credible, reliable and inconsistent with the complainant’s evidence in material respects which gave rise to reasonable doubts as to the complainant’s version.

5. Defence’s written submissions noted the recording of the conversation was tendered with a transcript supplied as an aide-memoire.  Counsel extracted from the transcript the relevant portions including the critical phrase.  Counsel submitted the recording was of limited utility on the basis that, at a critical time, the recording was inaudible and on the face of it the words that were inaudible could amount to an admission of “belting up” the complainant or it could be words that exonerated the appellant.  It was submitted that upon a careful listening, it was a reasonable possibility the word “fairies” was the inaudible word but whatever was said had the capacity to change the meaning of the latter part of the sentence such that it did not amount to an admission.   If so, the next comment, “then you’ll work out that we’d be liars”, becomes even more unclear than it appears.  Counsel submitted there was no clear segue between the “if you tell your mum” comment and the “then you’ll work out that we’d be liars” comment.  Counsel contended it was difficult, even on the face of the comments, to elevate them to a status of admission, particularly since part of the first comment was inaudible and it was a reasonable possibility the words were exculpatory. 

6. Counsel further contended that the words were too vague and uncertain to amount to an admission of the assault and they did not identify the alleged assault nor the alleged assailant.  In the context of the prosecution case consisting of more than one assault, counsel submitted that viewed objectively, the use of the word “we” was not necessarily a reference to the appellant and another person committing the assault individually or jointly.  It could be meant as a reference to the police as a group.

7. Neither counsel made submissions in relation to the meaning of individual words or phrases in the audio including the meaning of “belted” or “belted you up”.

   Magistrate’s reasons

8. The Magistrate summarised the opening and evidence and reproduced the transcript of the audio recording in his reasons.  He noted that defence counsel put to the complainant that a critical part of the audio recording recorded a different series of words being “if you want to tell your mum fairy tales or fairies, that we fucking belted you, guess what, go right ahead”.  The complainant disagreed with that interpretation.  The Magistrate summarised the closing addresses of both counsel before making findings on uncontroversial matters, including the identity of the appellant as the alleged perpetrator in relation to count 1. 

9. The Magistrate commenced his discussion by directing himself in relation to the alleged admission, noting that he first needed to determine what was actually said, then determine what was meant by the words the appellant uttered and then consider whether by so saying and so meaning, the appellant admitted the alleged offence.  The Magistrate asked himself a number of rhetorical questions in relation to whether some other explanation might provide another way of interpreting what was said so as to conclude the appellant did not admit the alleged offending.  The Magistrate considered it necessary to exclude alternative possibilities before regarding the utterances as a confession.  He noted that he did not regard anything said to the appellant as evidence against him except in the limited way to give context to what was said by the appellant.  The Magistrate considered he needed to be satisfied beyond reasonable doubt what was said, its meaning and that it was a confession to the charged offence and if not so satisfied, would need to exclude the evidence of what the appellant said from his consideration in terms of it being a piece of inculpatory evidence. 

10. The Magistrate noted that among the three prosecution eyewitnesses there was little similarity in their observations and potentially some conflict.  He considered it understandable Officer Fergusson might have missed a quick strike to the face.  However, he concluded the actions particularised as count 2 (in relation to H) being more prolonged left open the inference no such assault occurred.  The Magistrate said he did not have the benefit of seeing and hearing B give evidence.  B’s agreed evidence, on its face, did not support the complainant’s version.  The Magistrate noted that with the eyewitness evidence not supporting and potentially undermining the prosecution case, the remaining evidence consisting mainly of photographs of injuries, Dr Patel’s evidence, the telephone records and the audio recording needed to be weighed carefully. 

11. The Magistrate stated he would not need to be satisfied beyond reasonable doubt as to each item of circumstantial evidence.  However, he considered there was a need to be satisfied beyond reasonable doubt in relation to the injuries, as evidence of the injuries was relied upon as a major source of corroboration for the complainant’s evidence concerning count 1.  Before he relied upon the evidence of any injury to the complainant’s face as corroborative of the appellant striking the alleged blow, the Magistrate required the evidence to reach the standard of proof beyond reasonable doubt.  Given the differing versions of other eyewitnesses and the reservations the Magistrate had in relying on the complainant’s evidence, the Magistrate said the other evidence assumed great significance and therefore he considered proof beyond reasonable doubt was required.

12. The Magistrate concluded the complainant was a poor witness.  On multiple occasions his evidence was contradicted by prior statements made closer to the time of the alleged assaults.  It was not merely the prior inconsistent statements but the evasive manner in which the complainant dealt with them in the witness box which struck the Magistrate.  He noted that the complainant routinely feigned confusion and attempted to frustrate the process of proving the prior statements.  The Magistrate was left with an impression of a witness who was not at all times working from actual memory of events.  One prior inconsistent statement in particular related to the allegation in count 2 to such a point that, in combination with the other reservations the Magistrate had about the complainant’s evidence, the Magistrate was not prepared to convict the appellant or H on the basis of the complainant’s evidence alone.  The Magistrate also found the complainant had been caught in a lie in respect of one issue concerning his reclusiveness following the alleged assaults.  The failure of the complainant to admit his behaviour on the night was impolite caused the Magistrate to conclude that the complainant was prepared to modify his evidence to suit his interests, being the conviction of his tormenters.  As with the other matters to which he had referred, this caused the Magistrate to have serious reservations about the complainant’s evidence.

13. The Magistrate continued to consider the evidence which supported the complainant’s credibility and reliability.  This included the telephone records from the night which were broadly consistent with the complainant’s version and the photographs taken by the complainant’s mother.  The Magistrate found that the photograph depicting the left side of the complainant’s cheek showed swelling and two photographs led him to conclude beyond reasonable doubt there was an area of swelling to the complainant’s left cheek.  He said Dr Patel’s evidence, to an extent, also supported the complainant, in particular, the bruise to the left side of his face as well as a one-centimetre abrasion which was consistent with the photographs.  The Magistrate was satisfied beyond reasonable doubt by a combination of Dr Patel’s evidence and the photograph that there was a bruise and an abrasion to the cheek. 

14. The Magistrate continued to say that, based on his analysis of the complainant’s evidence, he could not:[12] 

    conclude beyond doubt as to guilt on either count based solely on [the complainant’s] evidence.  In addition there would need to be significant and compelling evidence which I accept beyond reasonable doubt for either count to be proven.

    [12] Magistrate’s reasons at [132].

15. The Magistrate generally found the complainant’s mother to be a good witness and accepted her evidence but said her ability to support her son’s evidence was limited to her observations of his injuries.  In relation to her attendance at the scene, the audio recording provided the best record of what occurred.

16. The Magistrate reiterated that he would not be prepared to accept the complainant’s evidence beyond reasonable doubt by itself as he was simply too poor a witness.  He commented: [13] 

    That does not mean that his evidence on specific matters was not along with other evidence capable of amounting to proof beyond reasonable doubt.

    [13] Magistrate’s reasons at [137].

17. The Magistrate referred to the audio recording as a remarkable piece of evidence against the appellant.  He said the manner of communication from the appellant to the complainant was sarcastic, demeaning and menacing.  The Magistrate then continued as follows:[14]

    I have listened many times to the passage of the recording that begins, “Now, if you want to…”  The word “now” is said more softly that [sic] any of the preceding words and sounds very much like [the appellant] is lowering his voice to speak privately to [the complainant].  Furthermore, I find beyond reasonable doubt that this is what [the appellant] says during this part of the recording:

    Now, if you wanna tell Mum and ya fairy mates we fucken belted you one.  Guess what?  Go right ahead and then you’ll work out that we’d be liars.  Cos we’ll say we didn’t do it.

    I have considered whether it is possible that something else could have been said instead of “ya fairy” mates and rejected such a possibility.  While this is my concluded view on what [the appellant] said and a finding I have made beyond reasonable doubt, as I put to his counsel during her closing address, even if there were to be some ambiguity as to the meaning of the first sentence, that ambiguity is resolved by [the appellant] telling [the complainant] the police’s denial of their having “belted him one” will make them liars.

    Here lies the most compelling aspect of this admission as it is not a traditional confession but rather it is an admission that any denial of the act of belting [the complainant] one is a lie.  This admission is made in the context of [the appellant] clearly trying to persuade [the complainant] of the pointlessness of complaining to others.  As such I find that it has an additional aspect of reliability as [the appellant’s] admission is an unintended one.

    [14]   Magistrate’s reasons at [139]-[141].

18. The Magistrate referred to the subsequent appeal to the complainant’s desire to “play with the big boys” followed by a reminder that the appellant was not going anywhere.[15]  He concluded the meaning of the exchange was readily apparent, being an appeal to the complainant to not complain about being “belted one” and in so doing taking part in a give and take between police officer and known offender.[16]  The reminder the appellant “wasn’t going anywhere” was to reinforce that he would have ample opportunity to influence the complainant’s life negatively which was in keeping with the appellant’s efforts to discourage the complainant from complaining.[17]  The Magistrate considered the appellant’s effort to discourage complaint as an urgent one, also accepting the complainant’s mother’s evidence that the appellant was positioned very close to her son who was still on the ground during this exchange.

    [15] Magistrate’s reasons at [142].

    [16] Magistrate’s reasons at [142].

    [17] Magistrate’s reasons at [142].

19. The Magistrate then continued to address what the appellant meant by his words.  He found the appellant meant: [18]

    the logical and apparent meaning of his words, namely that [the complainant] should not complain to his mother and friends because police would lie about him having been belted one.  The obvious, only and irresistible inference from this is that [the complainant] was belted one.

    [18] Magistrate’s reasons at [144].

20. The Magistrate then continued:[19]

    Finally, I need to be satisfied beyond reasonable doubt that in admitting that [the complainant] had been belted one, [the appellant] was admitting to the offence charged.  In this regard I find the use of the phrase “belted you one” highly significant.  As I understand this phrase and have observed its usage, it refers to a blow.  It is used to describe a blow with the hand rather than a punch in my experience.  There is also significance in the fact that [the appellant] makes reference to “one” as in “belted one” which is consistent with the allegation of a single blow.

    The fact that despite his inadequacies as a witness this is precisely the kind of blow [the complainant] alleges and has an injury to his face consistent with, leads me to conclude beyond reasonable doubt that [the appellant] was when he uttered those words unwittingly and reliably admitting to striking [the complainant] with an open palm to the left side of his face.

    In coming to this conclusion, I have considered whether [the appellant] might when he says “we fucken belted you one” be referring to some other physical altercation which took place or might possible have taken place that night.  I exclude this as a possibility as none of physical interactions for which there is any evidence are in any way consistent with the language [the appellant] chooses to use.  [The appellant] whose language seems sophisticated and carefully chosen was not possibly referring to him pushing [the complainant], or [H] knocking his phone from his hand of indeed slamming him to the ground and choking him.  However, the inferential admission of having belted [the complainant] one, fits perfectly with the assault alleged and indeed the injury to [the complainant’s] cheek.

    [19]   Magistrate’s reasons at [145]-[147].

21. The Magistrate concluded the statement did not create a doubt as to the blow he found the appellant struck.  He rejected an argument by counsel for the appellant about the suggestion the appellant poked the complainant with a pen.  The Magistrate then considered count 2 in relation to H and concluded he could not make findings beyond reasonable doubt.  He had serious doubts about the complainant as a witness and the Magistrate considered his evidence on count 2 was not supported by the compelling evidence available on count 1.  The Magistrate continued to address whether, in reaching his ultimate conclusion on count 1, doubt as to count 2 so infected count 1 that he could not be certain about that allegation.  The Magistrate concluded it did not, on the basis of the evidence of a clear injury and the audio confession.  He was therefore satisfied as to all the elements in relation to count 1 beyond reasonable doubt.

    Notice of appeal

22. The appellant maintained two grounds of appeal.  The first was that it was not open on the evidence for the Magistrate to return a verdict of guilty including because the audio recording was not capable of being proved beyond reasonable doubt to be an admission to the charged count.  I will refer to this as the “not open” ground.  The second was that the Magistrate erred in finding the audio recording recorded an admission by the appellant to count 1 and in so finding, failed to afford the appellant procedural fairness.  In particular the appellant submitted the Magistrate erred in finding that the appellant uttered the words “Now, if you wanna tell Mum and ya fairy mates that we fucken belted you one. Guess what? Go right ahead and then you’ll work out that we’d be liars.  Cos we’ll say we didn’t do it”,[20] in concluding the words referenced a strike to the complainant’s face by the appellant and in doing so without notice to the appellant.  I will refer to this as the procedural fairness ground.  

    [20] Magistrate’s reasons at [139].

    Nature of appeal

23. The appeal is brought pursuant to s 42(1) of the Magistrates Court Act 1991 (SA) (“Magistrates Court Act”) and is governed by Chapter 12A of the Supreme Court Criminal Rules 2014 (SA).[21]

    [21]   The appeal predated the introduction of the Joint Criminal Rules 2022 (SA).

24. In Martin v Department of Transport, Energy & Infrastructure, White J stated:[22]

    [22] [2010] SASC 141 at [37]-[39].

    The present appeal is an appeal by way of rehearing. The function of this Court in hearing and determining an appeal against conviction under s 42 of the Magistrates Court Act is quite different from that of the Court of Criminal Appeal in hearing and determining an appeal under s 353(1) of the CLCA. This point was made by Perry J in Taylor v Hayes:

    While I suppose that there is no harm in using words such as “unsafe, unjust or unsatisfactory” or “cannot be supported having regard to the evidence”, or the words “miscarriage of justice” in the expression of grounds in support of an appeal under the Justices Act, they are words which are of more particular significance in relation to appeals under s 353 of the Criminal Law Consolidation Act.

    Grounds of appeal under the Justices Act when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence.  An appeal may be allowed even if there is evidence to support the Magistrate’s findings.  While it must give due weight to the advantage held by the Magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the Magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for hearing before the same or another court of summary jurisdiction.

    Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the Magistrate upon which it was open for him to reach the decision the subject of the appeal.

    In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.

    Accordingly, although the appellant’s criticisms of the Magistrate’s decision are important, this Court must review the whole of the evidence put before the Magistrate.

    (citations omitted)

1. Where an appellate court addresses an appeal by way of rehearing, the court must set aside a challenged finding of fact which is demonstrated to be wrong.  As the appeal is not a hearing de novo an appellate court should not substitute its own view or otherwise interfere unless it is satisfied the trier of fact fell into error.[23]  In conducting its own review, the appellate court should have regard to the findings of the trial judge and any advantage he or she may have had in making those findings including impressions about reliability of witnesses formed by the trial judge having seen and heard their evidence in the context of the evidence as a whole.[24] 

   Not open ground

   [23]  Boyle v The Queen [2022] SASCA 50 at [143] per Livesey P, Lovell and Bleby JJA; S, N v Police [2021] SASC 49 at [2] per Lovell J.

   [24]  Boyle v The Queen [2022] SASCA 50 at [144] per Livesey P, Lovell and Bleby JJA. See generally Fox v Percy (2003) 214 CLR 118 at [21]-[29] per Gleeson CJ, Gummow and Kirby JJ.

   Appellant’s submissions

2. Counsel for the appellant submitted that the Magistrate’s reasoning process started with an evaluation of the complainant’s evidence, and, having formed the view he could not rely solely on that evidence for a finding of guilt, the analysis then hinged on the evidence concerning the injury and the audio recording.  Counsel submitted that if either was removed, the case failed.  Counsel submitted that the determination that the standard of proof of beyond reasonable doubt applied to the evidence of the injury was appropriately cautious.  Despite finding the cheek injury beyond reasonable doubt, counsel submitted the Magistrate’s reasoning indicated that alone was insufficient to prove guilt beyond reasonable doubt and it was the confession in the audio recording that was the critical evidence that bridged the gap to a finding of guilt beyond reasonable doubt.  Counsel submitted that both the evidence of the complainant’s injuries and the audio recording were necessary for a conviction and, absent the findings based on the audio recording, the bridge did not cover the chasm and the prosecution case failed. 

3. The appellant’s first contention was that aspects of the audio recording were not reasonably susceptible to interpretation and there was a doubt as to what the appellant had said at various points, rendering the process of construction fraught with danger.  Second, it was not open to the Magistrate to attribute to the remarks that the appellant could be found to have made an admission that he had struck the complainant.  Third, the imprecision in the language used by the appellant precluded a finding beyond reasonable doubt that the appellant admitted to striking the complainant to the face in the manner particularised by the prosecution.  Counsel contended that if this Court is unable to be satisfied beyond reasonable doubt that the appellant admitted to striking the complainant to the face with an open hand, the conviction should be quashed and an acquittal substituted. 

4. Counsel submitted that what was said in the portions of the audio marked “inaudible” were not agreed and it was neither practical nor possible to decipher what was said in the inaudible passages.  Despite that, the Magistrate made findings beyond reasonable doubt about what was said in those portions and those findings were critical to the use made of the recording and the Magistrate’s preparedness to find the offence proved.  Counsel submitted a fair interpretation of the recording did not admit to the finding that the indecipherable portion of the recording referred to “ya fairy mates”.  Counsel contended that was important because not knowing what preceded the first reference to “we fucken belted you one” had the capacity to re-shape the meaning to be attributed to the alleged confession and what the Magistrate held subsequently to be an admission that the appellant would “lie” thus giving rise to a false denial of any allegation of wrongdoing.  Counsel submitted that the danger in relying on “we fucken belted you one” and what followed as a confession would be greater if the complete content of the comment was unknown.  Counsel submitted the meaning of the comment as a whole can only truly be discerned if there is clarity about each individual word spoken. 

5. Counsel contended that a small change in wording in the inaudible section could completely change what came thereafter.  Counsel criticised the use of the “we’d be liars” as the anchor for concluding there was an admission.  Counsel contended there was an assumption in that approach that the appellant accepted that whatever allegation had been made prior to that statement was true and hence a denial was false.  Counsel asserted that it could be that all that was conveyed was that if the complainant made a false allegation, presented as the truth, from the complainant’s perspective the police would be liars. 

6. Counsel for the appellant submitted the words in the recording which were said to amount to the confession had to be considered in the context of what else was said and the context of the events which were occurring on the night in question.  Counsel contrasted the use of “I” in some parts of the exchange, such as “I have to do a lot of typing” and “I get very angry because I am an old man” and “we” in the portion said to constitute an admission, that is, “we… belted you” and “we’d be liars”.  Counsel submitted the appellant did not refer to himself or to specific conduct and simply referred to a non-specific form of belting by any one of the police officers present.  In circumstances involving two allegations of assault against two different police officers, both of which could be described as involving a form of “belting”, counsel submitted it was not open to the Magistrate to conclude beyond reasonable doubt that the appellant meant to convey the complainant had in fact been belted by the appellant and a denial of that allegation would constitute a lie.  He submitted it was impossible to discern which, if any, of the alleged assaults were intended to be the subject of the comment given the use of the plural and the imprecision in the language.  Counsel for the appellant submitted that, on a fair interpretation, it could not be concluded beyond reasonable doubt that the appellant was intending to admit he slapped the complainant. 

7. Counsel for the appellant complained of a deficiency in the Magistrate’s analysis of his approach to the words “belted you one”.  The Magistrate found that as he understood this phrase and had observed its usage, it referred to a blow with a hand as opposed to a punch.  Counsel for the appellant submitted the question was not whether the Magistrate had observed the phrase to mean a strike with the hand but whether the appellant used the phrase “belted you one” to convey he had struck the complainant in the manner alleged.  Any such conclusion had to be made beyond reasonable doubt and necessarily therefore to exclude, as a reasonable possibility, that the appellant meant only to refer to some form of physical contact.  Counsel submitted that it may be doubted that the term “belted” is universally understood to refer to a blow with the hand as opposed to any other form of physical contact.  Counsel submitted the Magistrate’s construction of the phrase “belted you one” as conveying an admission of a single strike was specious and attributed to an inherently colloquial generalisation an element of linguistic precision which the nature of the phrase belies. 

8. Counsel also criticised the Magistrate attributing from his personal experience the meaning of “belted” being only a strike with an open hand and the inability in the context of more than one alleged assault involving more than one person to necessarily relate the utterances to one charged act.

   Respondent’s submissions

9. The respondent’s counsel submitted that the Magistrate did not err in making the impugned factual findings; the Magistrate did not need to make findings beyond reasonable doubt in relation to the particular words used, and the words that followed the portion marked “inaudible” assisted in resolving any ambiguity that arose from an inability to make findings as to the words uttered. 

10. Counsel submitted that while this Court must review the recording, the finding by the Magistrate had not been demonstrated to be wrong by incontrovertible facts or uncontested testimony nor is it glaringly improbable or contrary to compelling inferences such as to interfere with the finding. 

11. Counsel for the respondent submitted that the appellant approached the audio recording in a piecemeal fashion by looking at separate portions in isolation.  Counsel for the respondent disputed the characterisation of the audio recording as a confession, that is, an admission of guilt, as opposed to an admission, that is, of facts which tend to prove the guilt of the accused.[25]

    [25]   See R v Hazim (1993) 69 A Crim R 371 at 380 per Coldrey J (with whom Brooking and Teague JJ agreed).

12. Counsel for the respondent submitted that the question is whether the trier of fact is satisfied the admission or confession is true in whole or in part and whether that finding needs to be made beyond reasonable doubt depends upon the significance of the utterance in the particular case.  Counsel accepted that in cases in which the prosecution case depends solely on a confessional statement, the requisite standard of proof must necessarily be beyond reasonable doubt.  Counsel for the respondent asserted the audio recording was not an indispensable intermediate fact but rather part of the matrix of evidence corroborating the complainant’s account and proof beyond reasonable doubt was not required. 

13. Counsel submitted that an inability to make findings about the inaudible portion did not rob the evidence of probative value as an admission.  Any ambiguity was resolved by the appellant’s subsequent words and the context in which an unknown word is uttered materially informs what that word was.  Counsel submitted that viewing the utterance holistically excludes as a reasonable possibility that the unknown word was one which transformed the comment from one that inculpated the appellant to one that either exculpated him or was, at the least, neutral. 

14. Counsel pointed to the fact that the admission occurred in the context of the appellant attempting to dissuade the complainant from complaining, which further buttressed the reliability of the admission as an unintended one.  Counsel submitted that the reference to “not going anywhere” reinforced that the appellant would be able to continue to impact the complainant and the overwhelming inference was that the appellant was attempting to press upon the complainant that complaining would not be in his interest.  Counsel also pointed to the appellant’s tone and the juxtaposition of the appellant speaking relative to the arrival of the complainant’s mother as giving rise to an overwhelming inference the appellant was urgently attempting to dissuade the complainant from complaining and attempting to limit his opportunity to do so.  Counsel submitted the delivery of the utterance in a whisper was consistent with the appellant attempting to speak privately so as not to be overheard.  Counsel submitted there is no other reasonable interpretation open which either exonerates the appellant or renders the utterance intractably neutral. 

15. Counsel submitted that the overwhelming inference arising from the appellant admitting that a denial of belting the complainant would be a lie is that the obverse was true: the complainant was in fact “belted one”.  Counsel submitted there was no other reasonable hypothesis open on the evidence. 

16. Counsel submitted there was a cogent evidentiary basis which permitted the finding the appellant was admitting to striking the complainant in contrast to any other physical interaction.  Counsel submitted the phrase “belted you one” in ordinary parlance refers to some strike or form of blow as alleged by the complainant.  To contend the actions attributed to H amounted to a belting was to strain the ordinary meaning to such an extent the contention ought to be rejected.  Counsel submitted there was no basis for the Court to interfere with the Magistrate’s finding which was properly open to him. 

17. Counsel for the respondent submitted that “belted you one” or “to belt someone” is a common idiom and the Magistrate was entitled to bring to bear his own experiences with the phrase in determining its meaning.  In addition, the meaning of the phrase is to be ascertained in the context of the prosecution case.  The other acts deposed to by the complainant were qualitatively different from a blow and the fact that the words were said by the appellant, who was alleged to have struck the complainant, supported the inference the appellant was talking about his own conduct which amounted to a single strike or blow.  Counsel contended there was no error in the Magistrate’s approach and his reasoning and ultimate findings were not contrary to compelling inferences. 

18. Counsel for the respondent submitted that despite the issues with the complainant’s evidence, the Magistrate found the complainant credible and reliable in relation to his evidence about being struck to the face and the Magistrate used the evidence of the injury and the audio recording to bolster the complainant’s credit.  That meant it was more likely that what the complainant said occurred in fact occurred, and this highlighted the fact the audio recording was not an indispensable link.  The complainant’s account fell to be evaluated in the context of the wider prosecution case.  The complainant’s evidence was materially supported by Dr Patel’s evidence, the complainant’s mother’s evidence and the photographs.  The respondent submitted the Magistrate’s requirement for the evidence of the injury to reach the standard of proof beyond reasonable doubt was unduly favourable.  In addition to amounting to an admission, counsel submitted that the audio recording supported the complainant’s evidence about the behaviour of the appellant and how he interacted with the complainant.  The recording constituted objective evidence of the sarcastic, demeaning and menacing manner which was said to be consistent with, and corroborative of, the complainant’s evidence. 

19. Counsel for the respondent said the photographs and the observations by the complainant’s mother concerning the complainant’s injury supported the complainant’s account, as did her observations of the appellant kneeling close to the complainant, and her evidence that he immediately approached her and attempted to stop her getting out of the car.  Counsel submitted that Officer Fergusson’s evidence in part supported the complainant’s evidence of the actus reus, in particular hearing a yelp, which supported the inference that something happened that caused the complainant to be on the ground.  Counsel submitted that B’s evidence supported the complainant’s account that the appellant was behaving aggressively.  Counsel for the respondent contended that Officer Fergusson’s evidence did not present an obstacle to a finding of guilt as he was looking away at the time and B seeing the complainant being pushed down is not mutually exclusive with a strike to the face.

20. Counsel for the respondent submitted it was not necessary for the Magistrate to make findings beyond reasonable doubt about the injury and that the photographs circumstantially supported the complainant’s evidence.

    The Magistrate’s process of reasoning

21. The Magistrate noted that the evidence of the photographs, of Dr Patel and the phone records are circumstantial evidence.  While saying in a circumstantial evidence case it is not necessary to be satisfied beyond reasonable doubt as to each item of circumstantial evidence, the Magistrate considered there to be a need to be satisfied beyond reasonable doubt of the injuries given the significance of the evidence in light of the differing versions given by eyewitnesses and his reservations in relation to the complainant.  The Magistrate then concluded the complainant was a poor witness and that he would not be prepared to convict on his evidence alone.  The Magistrate found beyond reasonable doubt that the photographs showed an area of swelling, and on the basis of the combination of the photographs and the evidence of Dr Patel, found relevantly that there was an abrasion and a bruise to his left cheek.  The Magistrate said that based on his analysis of the complainant’s evidence, there would need to be significant and compelling evidence which he accepted beyond reasonable doubt.  The Magistrate then considered the audio recording.  In addressing the content and meaning of the audio recording, the Magistrate noted aspects of the recording relative to the complainant’s mother’s evidence of the position of the appellant near the complainant.  During his analysis of the arguments put by counsel, the Magistrate referred to other evidence, such as the timeline of telephone calls, relevant to the timeline, and photographs of the location, relevant to the assessment of B’s evidence. 

22. The Magistrate specifically noted that his finding concerning the reliability of the complainant’s evidence did not mean the complainant’s evidence on specific matters was together with other evidence not capable of amounting to proof beyond reasonable doubt.

23. Having considered carefully the Magistrate’s reasons, I am not persuaded that the reasoning process was as linear as put by the appellant nor that in effect there were three building blocks in the reasoning process to guilt without any one of which there could be no conviction.  I do not read the judgment as amounting to reasoning that, in light of the Magistrate’s conclusions about the reliability of the complainant, the acceptance of the evidence of the injury beyond reasonable doubt was insufficient and the audio recording was the only lynchpin which bridged the gap to the finding of guilt.  The evidence of the injuries and the audio recording were significant in the reasoning and were relied upon by the Magistrate in ultimately accepting the complainant’s evidence that he was struck by the appellant.  I consider a fair reading of the reasons as a whole suggests those important pieces of evidence were considered in the light of the totality of the evidence such as that to which I have referred above, including that of the telephone calls and the evidence of the complainant’s mother, including the positioning of the appellant when she arrived and so on. 

24. Part of the Magistrate’s reasons included determining it was necessary to find the injuries beyond reasonable doubt.  The Magistrate recognised that the notion of the injury being an indispensable intermediate fact did not fit comfortably as he said this was not a “links in the chain” or “strands in a rope” case.  Nevertheless, he concluded proof beyond reasonable doubt was required in the particular circumstances given the importance of the evidence of the injuries as corroborating the complainant’s evidence.

25. In Shepherd v The Queen[26] (“Shepherd”), the High Court concluded that it is not the case that in a matter based on circumstantial evidence a jury may only properly draw an inference of guilt upon individual items of evidence all proved beyond reasonable doubt.  The requirement to meet the burden of proving all elements of the offence beyond reasonable doubt does not mean that every fact and every piece of evidence relied upon to prove an element by inference must be proved beyond reasonable doubt.   It is only if it is necessary to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt that the conclusion must be established beyond reasonable doubt.[27]  An indispensable intermediate fact is a fact which, in the context of the case, is an indispensable step in the process of reasoning towards an inference of guilt and such facts must be proved beyond reasonable doubt before they are relied on.[28]  An item of evidence is more likely to be so characterised if the case involves a small number of circumstantial facts.[29]  The role and significance of the particular evidence must be considered in the light of the way in which the case has been conducted.[30] 

    [26] (1990) 170 CLR 573.

    [27]   Shepherd v The Queen (1990) 170 CLR 573 at 585 per Dawson J.

    [28]   R v Singh [2019] SASCFC 51 at [86] per Doyle J (with whom Peek and Parker JJ agreed).

    [29]  R v Singh [2019] SASCFC 51 at [90] per Doyle J (with whom Peek and Parker JJ agreed).

    [30]  R v Singh [2019] SASCFC 51 at [89]-[90] per Doyle J (with whom Peek and Parker JJ agreed).

1. I have considered the evidence at the trial and the submissions made by counsel.  While the evidence of the injuries to the complainant’s cheek was an important part of the prosecution case, the conduct of the case did not rely on that evidence as a crucial stepping stone in the case put forward for conviction.  I agree with the Magistrate that this was not a “links in the chain” case with the injury amounting to an indispensable intermediate fact requiring proof of evidence of the injuries beyond reasonable doubt.  While I appreciate why the Magistrate approached the matter in that way, the Magistrate set a higher bar than was strictly required in relation to the standard of proof of one aspect of the evidence upon which he relied in reasoning to guilt.

   Audio recording

   What was said?

2. The transcript of the audio recording, which was tendered as an aide-memoire and to which the prosecution referred, set out the critical portion relied on as an admission as follows:[31]

   Officer: Now, if you want to tell your Mum that we (inaudible) you mate, that we fucking belted you up, guess what? Go right ahead.

   Matthew: Alright.

   Officer: And then you’ll work out that we’d be liars, because we’ll say we didn’t do it. Alright?

   [31] Magistrate’s reasons at [31].

3. After commenting that to use the utterances of the appellant as a confession it was necessary to be satisfied beyond reasonable doubt as to what he said, its meaning and that it was a confession to the charged offence, the Magistrate proceeded to find that critical portion of the audio recording was as follows:[32]

   Now, if you wanna tell Mum and ya fairy mates we fucken belted you one. Guess what? Go right ahead and then you’ll work out that we’d be liars. Cos we’ll say we didn’t do it.

   [32] Magistrate’s reasons at [139].

4. I have listened repeatedly to the audio recording.  The portion from “guess what?” to “we’ll say we didn’t do it” is audible.  The preceding section is muffled and difficult to hear and while it sounds like the word following “belted you” is “one”, I cannot be sure I can hear the words “ya fairy mates” which were heard by the Magistrate.  With respect, I do not consider the Magistrate could reject the possibility that anything other than the words “ya fairy mates” was said.

   Analysis of what was meant

5. The Magistrate considered that even if there were some ambiguity in the first statement, that ambiguity was resolved by the appellant telling the complainant the denial of having “belted him one” would make them liars.  I have some difficulty in accepting the potential explanation proffered by counsel for the appellant that the statement about finding out the police would be liars could be a reference in the context of the complainant making a false allegation of belting.  In my view, the words would require some manipulation to reach that conclusion.  A more likely meaning would be that a reference to being liars following a reference to “belting” is that the denial relates to a belting.  The reference to working out that the police officers would be liars because they would say they did not do it suggests there was some conduct about which, if the complainant complained, the police officers would lie.  Nevertheless, the appellant’s words were that “we’ll say we didn’t do it” and the “it” takes its meaning from the previous utterances of the appellant.  The previous inaudible portion thus gives rise to potential ambiguity as to what was meant, as does the alternating use of “I” and “we” in the context in which more than one officer was charged.  The Magistrate placed reliance on his own understanding of what was meant by “belted you one”.  He understood it referred to a blow with the hand rather than a punch.  He relied on the word “one” as being consistent with the allegation of one blow. The Magistrate excluded the possibility the appellant may have been referring to some other physical altercation.  I do not consider the phrase used by the appellant can be so narrowly confined and, in my view, the appellant could have described other forms of striking in that way.  I therefore consider the Magistrate fell into error in reasoning that “belted you one” was only attributable to a blow with the hand and in reaching that conclusion by reference to his personal understanding and his observed use of the phrase. That reasoning was significant in excluding the possibility the phrase could have referred to some other physical altercation that may have occurred and thereby concluding the appellant by his words admitted the charged offence. 

6. I address separately below the consequence of my conclusion.

   Procedural fairness

   Appellant’s submissions

7. Counsel for the appellant submitted that the prosecution opened on the basis of the words “belted you up” and the prosecutor’s obligation was not merely to outline the facts which are proposed to be established in evidence but to indicate, in conceptual terms, the nature of the Crown case.  Counsel for the appellant submitted that the trial was conducted by the parties on the basis that the transcript of the audio recording was an accurate transcription of what was said other than the portion marked “inaudible”.  Consistently with that approach, the appellant made submissions concerning the inaudible portion but otherwise did not challenge the words as transcribed, and nor did the prosecution, and the trial was conducted on that basis with no contest as to the words and no contemplation the Magistrate may find different words were used. 

8. Counsel said the appellant’s position was not that a trier of fact must always expose their process of thinking or tentative views.  Rather, in the context of adversarial criminal justice, the content of the duty to afford procedural fairness required the Magistrate to raise for the parties’ consideration the alternative interpretation of the audio which did not reflect the prosecution case as to how the admission was to be understood or the words spoken.  While accepting that the question of the words used was a factual question for the Magistrate, and the transcription was only an aide-memoire, counsel for the appellant submitted the forensic contest between the parties was based on the words in the aide-memoire and the case was run on that basis.

9. Counsel submitted that without notice to the parties or the provision of an opportunity to make supplementary submissions, the Magistrate made findings beyond reasonable doubt about words spoken by the appellant which were inconsistent with the transcript and conduct of the case by the parties.  In particular, the Magistrate held the critical portion of the exchange involved the appellant saying “we fucken belted you one” as opposed to “we fucken belted you up” in the transcript and that finding was important in the Magistrate’s reasoning to guilt.  Counsel for the appellant asserted that the Magistrate’s personal understanding of an observation of the usage of “belted you one” as referring to a blow by the hand was a matter which, in fairness, ought to have been put by the Magistrate to the parties.  Counsel submitted the experiences of the Magistrate were not articulated and the parties did not get to test whether they were well founded.

10. Counsel for the appellant referred to a number of authorities including, by analogy, MDM v The Queen[33] (“MDM”).  In MDM, the prosecution relied on certain evidence for a particular non-propensity purpose and the defence case was conducted on that basis.  The trial judge used the evidence for propensity purposes.  The Court of Criminal Appeal allowed the appeal and ordered a retrial.  Chief Justice Kourakis considered the trial judge denied the appellant the opportunity to make submissions against the admissibility of the evidence and in relation to the weight of the testimony as propensity evidence after the prosecution had eschewed reliance on the particular evidence in that manner.[34]  In MDM, the Director of Public Prosecutions conceded a failure to accord procedural fairness but contended it did not give rise to a substantial miscarriage of justice.  Justice Peek said it was impossible to eliminate the real possibility the evidence which was admitted had a real effect on the trial judge’s consideration and it was not possible to be confident the interpretation of the trial judge’s reasoning put by the Director was correct.[35]

    [33] [2020] SASCFC 80.

    [34]   MDM v The Queen [2020] SASCFC 80 at [2] per Kourakis CJ.

    [35]   MDM v The Queen [2020] SASCFC 80 at [99] per Peek J.

11. Counsel contended the Magistrate’s approach denied the appellant the opportunity to make submissions or to consider what further or other evidence might be called to meet a hypothesis not ventilated by the prosecution.  Counsel pointed to the necessity to bear in mind tactical considerations which would have governed the conduct of the case and submitted that departure by a trial judge from the case as framed by the parties runs the risk of undermining forensic decisions throughout the course of the trial. 

12. Counsel submitted that the Magistrate’s finding without notice denied the parties an opportunity to address the alternative interpretation which had a real and substantial tendency to cause unfairness and, through no fault of his own, the appellant did not have the opportunity to address the Magistrate on what turned out to be a key factual finding inconsistent with the manner in which the prosecution ran its case.  Counsel submitted it did not matter, nor was it appropriate, to enquire into how the case might have been conducted differently.  Counsel submitted that given the trial was conducted on the basis of the words “belted you up”, it is neither possible nor appropriate for this Court to come to its own conclusions and consequently, if the appellant succeeded on this ground only, the appropriate order was remittal for a re-trial. 

    Respondent’s submissions

13. Counsel for the respondent appropriately accepted procedural fairness as an essential attribute of a court’s process but submitted there is no general obligation on a decision maker to disclose their mental processes or potential lines of reasoning.  Counsel submitted procedural fairness does not require the judicial officer to forewarn the parties of all possible reasons on which they may fail. 

14. Counsel for the respondent submitted the audio recording was an overt contest at trial.  The prosecution sought to use it as an admission and the appellant submitted the recording was of limited utility, it was a reasonable possibility the word “fairies” was uttered and the recording did not identify specifically the assault or assailant.  Counsel for the respondent submitted the appellant was plainly on notice the audio recording would feature in the Magistrate’s reasoning and he would make findings as to the words uttered.  Counsel contended it was not incumbent upon the Magistrate to give notice of the precise factual findings he was to make and the appellant had every opportunity to be heard on the topic. 

15. Counsel for the respondent accepted procedural fairness requires a Judge not to inform themselves on any contentious matter or take into account factual material not in evidence without affording the parties an opportunity to address those matters.  Counsel submitted the Magistrate’s use of the evidence as an admission accorded precisely with the manner in which the prosecution sought to lead it.  Counsel contended the appellant was on notice of the manner in which the audio recording was to be used and the contentious nature of the words uttered.  He submitted the appellant was permitted ample opportunity to test, comment upon and call evidence to rebut and qualify the audio recording and the whole of its contents.  He submitted it was implicit the Magistrate would necessarily need to make factual findings as to the content of the recording based on his own evaluation of what could be heard.

16. In the event the Court were to find that there was a failure to accord procedural fairness, counsel for the respondent submitted that the alternative interpretation did not amount to a substantial miscarriage of justice warranting intervention by the Court.  He submitted a breach of procedural fairness must be material to an outcome in the sense that compliance could realistically have resulted in a different outcome in order to warrant relief.  Counsel submitted the entitlement to a fair hearing is qualified by an important practical question being whether further information could have possibly made any difference and an appellate court will not order a new trial if it would inevitably result in the making of the same order as made in the first trial.  Counsel contended that a denial of procedural fairness will only be found to result in a miscarriage of justice where there is a realistic possibility the breach was of such a nature or degree that it could have impacted the verdict of guilty.  Counsel submitted that the fact the Magistrate interpreted the word that followed “belted you” as “one” instead of “up” did not alter the effect of the evidence in any material way.  Either interpretation rendered the statement capable of amounting to an admission the appellant had struck the complainant.  Consequently, counsel contended affording the appellant the opportunity to comment on the finding that the appellant uttered the words “belted you one” would not have led to an alternative verdict being imposed.   

    Consideration

17. There is no contest about the obligation to accord procedural fairness.  The rules of procedural fairness require a party liable to be directly impacted by a decision to be given the opportunity to be heard.  The rules of procedural fairness do not require the judge to disclose what he or she is minded to decide to enable the parties to criticise the mental processes of the judge before reaching a decision or to give a running commentary about the view the judge is taking of the evidence.[36]  However, procedural fairness ordinarily will require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the content and nature of adverse material.[37] 

    [36]  SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

    [37]  SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

18. In Macks v Viscariello[38] (“Macks”), the Court comprising Lovell J, Corboy and Slattery AJJ considered a complaint of a failure to comply with the rule in Browne v Dunn[39] and allegations of a failure by the trial judge to accord procedural fairness based on assertions that the trial judge based his findings on matters not pleaded, not put in cross-examination and which the party had not been given an opportunity to address.  In addressing the complaints, the Court considered instructive the decision of Kuhl v Zurich Financial Services Australia Ltd[40] (“Kuhl”) in which Heydon, Crennan and Bell JJ addressed a view formed by the trial judge that the plaintiff was reluctant to say precisely what happened in an accident.  The trial judge relied on four questions and answers by the plaintiff in circumstances in which the plaintiff was not asked further questions about how the accident occurred.  The majority in Kuhl concluded that in the absence of any challenge from the cross-examiner to the frankness or completeness of the plaintiff’s evidence, it was incumbent on the trial judge to make the challenge himself if his conclusion that the plaintiff had not been frank and complete was to play a role in his decision adverse to the plaintiff.  The majority continued:[41]

    Perhaps the criticism in the judgment did not occur to the trial judge until after the plaintiff had left the box, or until after the hearing had concluded and before the Judge’s reserved judgment was given.  It remained necessary either to recall the plaintiff or to have no regard to that aspect of the plaintiff's evidence.

    [38]   Macks v Viscariello (2017) 130 SASR 1.

    [39]   (1893) 6 R (HL) 67.

    [40] (2011) 243 CLR 361.

    [41]   Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [75] per Heydon, Crennan and Bell JJ.

19. After referring to that reasoning, the Court in Macks stated that:[42]

    The error of the trial judge was that he had incorporated into his reasons a finding without providing the affected party with the opportunity to deal with the subject matter of the finding.

    [42]   Macks v Viscariello (2017) 130 SASR 1 at [468] per Lovell J, Corboy and Slattery AJJ.

20. After addressing another authority, the Court in Macks considered whether there was a breach of procedural fairness and concluded that the trial judge should not have made a particular finding without giving the parties an opportunity to respond. 

21. I have reviewed the trial transcript and the submissions of the parties before the Magistrate.  The words spoken and the potential use of them were a significant contest in the trial.  During the trial, prosecution counsel asked a number of questions of the complainant by reference to the words in the transcript of the audio.  Among other references to the transcript, the prosecution counsel referred to an officer saying “Now if you want to tell your mum that we, you mate, that we fucking belted you up, guess what, go right ahead”[43] and “And then you’ll work out that we’d be liars because we’ll say we didn’t do it alright?”.[44]  The complainant was asked if he recognised the voices (which he did)[45] and was asked about the timing of the words relative to his mother’s arrival.[46]  In cross-examination, the complainant was asked whether he agreed whether not all the words were clear and he responded that the phone was in his pocket, and muffled, though he said “you can hear it clearly enough to know what happened”.[47]  The complainant was shown the transcript and taken to the section “Now if you want to tell your mum that we [inaudible] you mate, that we fucking belted you up, guess what, go right ahead”.  The complainant was asked whether he knew what was said in the portion marked [inaudible].  The complainant said he could not remember. When asked whether it might be that the appellant said something like, for example, “if you want to tell your mum fairy tales, or fairies, that we fucking belted you up, guess what, go right ahead” the complainant responded “No, that’s not it.  Completely wrong, disagree”.[48]  Counsel for the appellant continued to put to the complainant that he was reconstructing. 

    [43]   T321.19-21.

    [44]   T321.22-23.

    [45]   T321.23-25.

    [46]   T322.11-18.

    [47]   T533.20-28.

    [48]   T534.19-34. 

22. While the prosecutor rightly acknowledged the evidence was on the disk, and the Magistrate properly used the disk to make findings, the trial was effectively conducted on the basis of the words as recorded in the aide-memoire, including in matters put to the complainant and in submissions.  A judicial officer does not have to disclose what he or she is minded to decide or to indicate views of the evidence and a trier of fact reaching findings based on audio or video recordings does not necessarily or always have to give the parties an opportunity to address on potential findings.  However, I have concluded there was an obligation to accord procedural fairness in the particular circumstances of this case and the manner in which it was run.  While Macks and the authorities referred to in it were in a civil context, the observations are apposite.  In this case the Magistrate made a factual finding about the words spoken which was different to the words upon which the prosecution case was run.  The Magistrate rejected the possibility other words may have been said, excluding any potential the section marked “inaudible” may have a potentially exculpatory meaning.  He used his own personal understanding of the meaning of “belted you one” and that understanding, together with the word “one”, was significant in his process of reasoning to the conclusion the words were an admission to striking the complainant with an open palm to the face.  The findings and the conclusions the Magistrate drew from them were significant in his reasoning to guilt.  While it is likely, as in Kuhl, that the Magistrate did not form his views until listening to the audio repeatedly after the conclusion of the trial, and understandable that he would proceed to reason based on that view, given the significance of the findings in this case, I consider the parties should have been afforded an opportunity to make submissions to the Magistrate on his potential findings about the words used and the conclusions flowing from those findings. 

1. In addressing the question whether a breach of procedural fairness should result in the decision being set aside, in Macks, the Court referred to the observations of the High Court in Stead v State Government Insurance Commission[49] (“Stead”).  In Stead, after the trial judge had indicated he would not accept certain evidence given by a doctor, the trial judge accepted that evidence in his judgment.  As a result of the trial judge’s intimation, counsel did not address submissions on that evidence.  The High Court observed that not every departure from the rules of procedural fairness at trial will entitle the impacted party to a new trial.  As an example, the High Court stated that where the denial relates only to a question of law that would clearly be answered unfavourably, it would be futile to order a new trial.  However, where the denial impacts on the entitlement to make submissions on issues of fact it is more difficult for the appellate court to conclude that compliance with procedural fairness would have made no difference.[50]  

   [49]  Stead v State Government Insurance Commission (1986) 161 CLR 141.

   [50]   Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146 per Mason, Wilson, Brennan, Deane and Dawson JJ.

2. In Nathanson v Minister for Home Affairs,[51] Kiefel CJ, Keane and Gleeson JJ said:

   There will generally be a realistic possibility that a decision‐making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.

   (citations omitted)

   [51] (2022) 403 ALR 398 at [33] per Kiefel CJ, Keane and Gleeson JJ.

3. Chief Justice Kiefel and Keane and Gleeson JJ continued to say there was no need for the appellant to establish what additional evidence or submissions may have been presented had the Tribunal hearing been procedurally fair. 

4. It is not necessary to show how the appellant may have taken advantage of the opportunity lost by the failure to accord procedural fairness nor must the appellant prove the nature of any evidence that may have been called or submissions that may have been put.[52]  The materiality of the breach requires consideration of how the decision was made and then whether the decision could have been different had the relevant obligation been complied with as a matter of reasonable conjecture.[53] 

   [52]   Nathanson v Minister for Home Affairs (2022) 403 ALR 398 at [39].

   [53]   Nathanson v Minister for Home Affairs (2022) 403 ALR 398 at [32]-[33].

5. I cannot conclude that compliance with procedural fairness could have made no difference to the outcome.  Given the reasoning process used by the Magistrate and its significance in reasoning to guilt, if the Magistrate had given the parties the opportunity to address his findings and views, as a matter of reasonable conjecture the findings, reasoning or conclusion may have been different.

   Retrial

6. Counsel for the appellant contended that in the event I allowed the appeal on the not open ground, I ought to acquit the appellant.  The appellant contended that if I upheld the appeal on the procedural fairness ground, the matter should be remitted for retrial before a different Magistrate.

7. Counsel for the respondent submitted the Magistrate could have reached a conclusion of guilt based on all of the evidence, including taking into account the unnecessarily high hurdle the Magistrate set in relation to the evidence of the injury.

8. I have reviewed the evidence at the trial.  The respondent did not resile from the issues with the complainant’s evidence, accepting that he was plainly prone to exaggerate, was evasive at times and uncooperative.  While it is apparent why the Magistrate had concerns about the reliability of the complainant’s evidence, the Magistrate did not ultimately conclude he could not accept any evidence of the complainant at all.  Although the evidence of Dr Patel was only relevant to the injuries, the evidence of the complainant’s mother provided potentially broader support to the prosecution case.  In addition to evidence concerning the injuries, the complainant’s mother gave other evidence including of the telephone calls, the positioning of the appellant relative to her son when she arrived and her observations of the appellant breathing heavily.  The evidence of B and Officer Fergusson did not directly support the prosecution case but was potentially capable of explanation, including by reference to the time of night, where they were standing and so on.  Other aspects of B’s evidence had the potential to support aspects of the complainant’s evidence such as in relation to the context and tone of the interactions between the appellant and complainant. 

9. While I have concluded the Magistrate erred in rejecting the possibility any words other than “ya fairy mates’ were spoken and his reasoning concerning his finding of the phrase “belted you one” in the audio recording, it does not follow that the audio recording was robbed of any potential relevance in support of the complainant’s account.  On my review of the evidence, I do not consider the issues raised in relation to the audio recording are such as to be a complete obstacle to a conviction in the context of all of the evidence.  While inferences may be drawn from the audio recording and the photographs, those inferences fall for consideration in the context of all of the evidence including the assessment of the witnesses and is not a matter capable of resolution on appeal.  I am satisfied it is proper to remit the matter for retrial before another Magistrate.

10. In any event, I consider the failure to accord procedural fairness in the circumstances of the matter precludes this Court from coming to its own conclusion.  Accordingly, the appeal should be allowed and the matter remitted to the Magistrates Court for retrial before a different Magistrate.

    Sentence appeal and cross appeal

11. The appellant appealed against the sentence imposed by the Magistrate and the respondent filed a cross appeal.  By reason of my conclusion on the conviction appeal, it is not necessary for me to address the sentence appeal and cross appeal. 

    Orders

    SCCRM-21-487

    1.I allow the appeal against conviction.

    2.I quash the conviction and order a retrial of the appellant for the offence of assault contrary to s 20(3) of the CLCA.

    SCCRM-22-114

    1.I dismiss the appeal and the cross appeal against sentence.