Lawrence v Police - [2023] SASC 115

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
LAWRENCE v POLICE
[2023] SASC 115
Judgment of the Honourable Justice Bampton
10 August 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE CONVICTION QUASHED AND VERDICT OF ACQUITTAL ENTERED
Appeal against conviction for assault – whether Magistrate erred in finding the evidence established the appellant’s guilt beyond reasonable doubt – whether the Magistrate’s reasons were adequate.
Held: Appeal allowed – the evidence did not establish the appellant’s guilt beyond reasonable doubt – verdict of acquittal entered.
Magistrates Court Act 1991 (SA) s 42; Criminal Law Consolidation Act 1935 (SA) ss 20(3), 170(1), referred to.
Liberato v The Queen (1985) 159 CLR 507; Fox v Percy (2003) 214 CLR 118; Devries v Australian National Railways Commission (1993) 177 CLR 472; R v Keyte (2000) 78 SASR 68; R v Schlaefer (1984) 37 SASR 207; Eade v The King (1924) 34 CLR 154; Chandler v Police [2016] SASC 42; R v Lavery (2013) 116 SASR 242; Douglass v The Queen (2012) 86 ALJR 1086, considered.

LAWRENCE v POLICE
[2023] SASC 115
Magistrates Appeal: Criminal

BAMPTON J: By Magistrates Court Information dated 26 July 2021, Roy David Lawrence was charged with aggravated serious criminal trespass in a place of residence[1] and assault.[2] The aggravated serious criminal trespass charge was withdrawn on 21 September 2022. Mr Lawrence pleaded not guilty to the assault charge against Jennifer Fatchen (“Ms Fatchen”) and the matter proceeded to trial in the Whyalla Magistrates Court on 12 January 2023.
[1] Contrary to s 170(1) of the Criminal Law Consolidation Act1935 (SA).
[2] Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
The prosecution case as summarised by the Magistrate was:[3]
Now if I just summarise the opening of the prosecution. It was alleged that Ms Fatchen was at home on the morning of 13 June 2021 when [Mr Lawrence] arrived. That he let himself in, that words were spoken, that he punched her twice to the mouth. That he grabbed her around the back of the head with both hands and threw her into a metal storage rack, then she fell to the floor. That the side of her head impacted with the rack. That he picked her up by both hands by her head and threw her into a wooden front door, that she fell to the floor, he picked her up again and threw her towards her daughter’s dolls house. The back of her head hit the back of the dolls house and broke the dolls house. She suffered a split and swollen lip and a scratch to the back of the neck. [Mr Lawrence] left and police were called.
[3] Police v Lawrence, Roy David [2023] SAMC 12 at [4].
Ms Fatchen was the only witness called by the prosecution. A statement of a crime scene investigator, Brevet Sergeant Anna Kot, dated 5 May 2022, deposing to her observations and photographing of injuries on Ms Fatchen’s lip and neck (“exhibit P1”) and a booklet of seven photographs (“exhibit P2”) were tendered by the prosecution at the commencement of trial.
Mr Lawrence gave evidence and was the only defence witness. A document titled “Asserted SMS exchange messages between defendant and complainant” (“exhibit D1”) was tendered by the defence during cross-examination of Ms Fatchen. This exhibit is incorrectly described. It appears to be a screenshot from Mr Lawrence’s phone of messages on the Messenger app between “Jenna” and Mr Lawrence.
On 13 January 2023, the Magistrate delivered an ex tempore judgment and found Mr Lawrence guilty of assault.
Mr Lawrence appeals the conviction on four grounds:
1.The Magistrate erred at law by framing the trial as a choice between [Mr Lawrence’s] evidence and [Ms Fatchen’s] evidence when:
Particulars
1.1.   Such a binary form of reasoning ignored the onus and standard of proof.
1.2.   He failed to direct himself as to whether the prosecution had proved the elements of Assault beyond reasonable doubt; and
1.3.   He was required to reason what part of [Mr Lawrence’s] evidence he accepted or rejected before returning to the issue of whether on the state of the whole of the evidence, the prosecution had proved the elements of Assault beyond reasonable doubt.
2.The Magistrate erred at law by providing inadequate reasons to resolve the forensic contest at trial. They were inadequate due to:
Particulars
2.1.   Finding he did not believe [Mr Lawrence’s] account and found he made it up without explaining which aspects of his evidence he accepted or rejected.
2.2.   An absence of findings to reconcile the inconsistency between [Ms Fatchen’s] evidence and the paucity of injuries to the mouth occurred when it was unchallenged, she was struck at least once with a fist with a large ring. There was no comment about the probative value of this evidence and its significance.
2.3.   An absence of findings as to why he accepted [Ms Fatchen’s] evidence concerning the authorship of the messages shown in exhibit D1.
3.The Magistrate erred at law by misdirecting himself on the elements of Assault.
4.The Magistrate erred in fact and law by finding that [Mr Lawrence’s] evidence about the car registration corroborated [Ms Fatchen’s] evidence. This was an unchallenged collateral issue. It was not independent evidence of a material particular tending to confirm the truthfulness of [Ms Fatchen’s evidence].
An appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA)
Mr Lawrence’s appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA) (“the MCA”) is by way of rehearing. In conducting the rehearing, I must conduct a real review of the evidence, and the Magistrate’s findings and reasons. I must not disregard the Magistrate’s decision but carefully weigh and consider it, bearing in mind the Magistrate’s advantage in assessing the credibility and reliability of the witnesses. I am required to independently review the evidence, weigh conflicting evidence, and draw my own inferences and conclusions. If, having undertaken such a consideration, I am satisfied the decision was wrong, I must substitute my view for that reached by the Magistrate or remit the matter for rehearing.[4]
[4] Fox v Percy (2003) 214 CLR 118; Taylor v Hayes (1990) 53 SASR 282.
I have carefully read the evidence and the reasons of the Magistrate and have had regard to the written and oral submissions. For reasons that follow, I allow the appeal.
Ms Fatchen’s evidence
Ms Fatchen gave evidence that she was assaulted on 13 June 2021 at Whyalla Norrie. She said she had known Roy Lawrence for about six years as a friend of her brother’s. She guessed she knew him quite well and said her interactions with him were “only really when he’s hung out with my brother”.
She described that on 13 June 2021 she was at her home with her two children and three other children who had been there for her daughter’s birthday sleepover.
Ms Fatchen said she came out of her room and heard the front door open. She found her four-year-old son had opened the door to Mr Lawrence who walked in. She said Mr Lawrence was screaming about and trying to find her brother. She explained that he was looking for her brother “to transfer a rego or something for a car”. Ms Fatchen’s brother was not at the house and does not live there. She said Mr Lawrence “started getting louder and louder, screaming at [her], and asking for where [her] brother was and then he was about half a metre away from [her] and he punched [her] in [the] mouth”. At the time he punched her, she was in the middle of the lounge. She said he punched her with a closed fist to her mouth. She could not recall which hand he used or exactly how many times he punched her.
Ms Fatchen said Mr Lawrence then grabbed her by the head and threw her into a metal storage rack located by the front door. Having done this, she said he again picked her up by her head and threw her into her daughter’s Barbie Dreamhouse. She said the Barbie Dreamhouse was damaged and the back of her head was scratched behind her ear. She said her daughter, her daughter’s friends, and her son were standing in the hallway, her daughter started screaming, and Mr Lawrence ran out the door.
She then locked the doors, closed the blinds, and rang her friend to discuss what she should do. The friend told her to call the police, which she did. The police attended and took photographs of her. Ms Fatchen was shown the photographs in exhibit P2 and asked to describe what is seen in photo number 2. She said, “The blood on my lips and the cut to my lip”. Ms Fatchen said photo number 3 also showed the cut on her lip and blood surrounding her lips which she said were caused by Mr Lawrence punching her directly in the mouth with his rings on. She explained that she sustained the scratch behind her ear seen in photo number 4 when she was thrown into the Barbie Dreamhouse.
The crime scene investigator’s statement and photographs
The crime scene investigator, Brevet Sergeant Anna Kot, deposed in her affidavit[5] that she attended Ms Fatchen’s home at about 10:55 am on 13 June 2021. She had a discussion with Ms Fatchen and conducted a forensic examination. She took photographs, noting Ms Fatchen had injuries on her lip and neck and red stains on her lips resembling blood. She deposed the skin was broken on parts of her lip, her upper lip appeared swollen, and there was a red line about six centimetres long on the left side of Ms Fatchen’s neck. Brevet Sergeant Kot recorded in exhibit P2 that photo number 3 depicted “Injuries on upper lip and dried blood on lower lip”.
[5] Exhibit P1.
Cross-examination of Ms Fatchen
In cross-examination, Ms Fatchen said her top lip was injured and the marks on her bottom lip were dried blood. She denied the injury to her top lip looked more like she had bitten her lip and maintained her top lip was punched by one of Mr Lawrence’s rings. It was put to her the photographs do not support in any way her suggestion that she was punched with a closed fist to the mouth. She said she believed that they do support what she said as Mr Lawrence had rings on, and the rings had points on them. She said it was a powerful punch and she recalled that he punched her once. She was asked whether it would surprise her she told the police on 13 June 2021 he punched her twice. She said it would not surprise her and when asked why she forgot that detail she said that it had been a year and a half since it happened “and [she has] anxiety so sometimes [she] forget things”.
Ms Fatchen agreed that she would have been more accurate when she spoke with the police. It was put to her that if she had been struck with force by a man wearing rings, her injuries would be far more significant than the injury depicted in exhibit P2. She denied making anything up.
It was put to Ms Fatchen that she had had sex with Mr Lawrence and had been having sex with him for some years prior to the incident on 13 June 2021. She denied any sexual relationship with Mr Lawrence and when asked whether it would surprise her if Mr Lawrence was able to describe her bedroom, she said he had been to her house with her brother.
Exhibit D1 – the Facebook Messenger screenshot
Ms Fatchen said “everyone calls [her] Jenna”, including Mr Lawrence. She denied being aware that Mr Lawrence was coming around on the morning of 13 June 2021. Ms Fatchen was cross examined about exhibit D1, the screenshot from Mr Lawrence’s phone of messages on the Messenger app between “Jenna” and Mr Lawrence.[6] Ms Fatchen said the messages looked like Facebook Messenger messages.
[6] Defence counsel incorrectly referred to the messages in exhibit D1 as SMS messages.
To assist in understanding the evidence about exhibit D1, a copy of it is below:
It was put to Ms Fatchen that exhibit D1 contained messages between her and Mr Lawrence commencing with a message which appears to be sent from a profile in the name of “Jenna” with a profile picture of a person feeding a kangaroo (“the profile in the name of Jenna”). This message reads:
Fuck Roy Fuck gear can you get
me 50 of weed of leaving
me hanging please I need a fkn
come
Cone
Then our debts settled even if ya
Just do a few buds and drop them
I’ll wipe it
The next message sent from the profile in the name of Jenna is preceded by a date and time of “13 June 2021 at 7:40AM” and reads “Oi reckon that is a possible?”.
There appears to have been an incoming video chat of “1 min 26 secs” on 13 June at 7:40 am. I infer, by reference to the downward pointing arrow in the diagram of a video camera icon next to the words “The video chat ended”, it was an incoming call to Mr Lawrence’s profile from the person using the profile in the name of Jenna.
The next message in exhibit D1, “He alive or no sign haha” also appears to be sent from the profile in the name of Jenna. Likewise, the profile in the name of Jenna appears to have sent the message “Yeah please Aha fuck you da best” dated 13 June 2021 at 7:58 am, to which Mr Lawrence responded “Omw” from his profile. The exchange ends with the message “Kk” apparently sent from the profile in the name of Jenna.
Exhibit D1 appears to suggest the person using the profile in the name of Jenna wanted some weed and would forgive a debt owed by Mr Lawrence in exchange for “a few buds”. It was put to Ms Fatchen that the messages contained in exhibit D1 record what was in fact happening the morning of 13 June 2021. Ms Fatchen denied sending the messages in exhibit D1. She was asked if it would be pure coincidence that messages were sent from “Jenna” at 7:58 am when she asserted Mr Lawrence arrived at her home at 8:40 am. Ms Fatchen maintained she did not send the messages and denied having lent Mr Lawrence $50.
Ms Fatchen said she still has a Facebook account. She agreed she uses the name “Jenna Fatchen”, and her profile picture is photo of her feeding a kangaroo. She said she did not have any communications with Mr Lawrence through Facebook, and it is “easy to replicate Facebook profiles as well as photoshop pictures and stuff like that”. She said that it is easy to replicate someone’s profile and send messages from it and that fake accounts of her profile had been created when she was a teenager.
Ms Fatchen confirmed it was her evidence someone had created a fake profile using her profile and that person was responsible for the last message from “Jenna” in exhibit D1 sent to Mr Lawrence’s profile at 7:58 am, 40 minutes prior to when she said Mr Lawrence came to her home.
It was put to her she was not telling the truth. She said she was telling the truth and had no reason to lie.
Ms Fatchen said that she pointed out to police that the Barbie Dreamhouse was broken but she did not remember whether it was photographed.
It was put to Ms Fatchen that Mr Lawrence did not lay a hand on her on 13 June 2021. She maintained he assaulted her.
In re‑examination, Ms Fatchen said the first time she saw the messages in exhibit D1 was when exhibit D1 was shown to her in cross-examination.
Mr Lawrence’s evidence
Mr Lawrence said he had probably known Ms Fatchen for longer than six years. When asked how he first met her, he said he may have met her through her boyfriend, the father of her children, who he met at Whyalla High when he was 14. He agreed he had known Ms Fatchen’s boyfriend for about 16 years and it was fair to say that he had known Ms Fatchen for many, many years.
Mr Lawrence said he and Ms Fatchen started having a sexual relationship 12 years ago and that, “She was good, yeah, to have sex with, yes intimacy”. He said they continued an intimate relationship, it “was a very good thing” and that he “wouldn’t see much other people”. He said he would have sex with her mainly in her bedroom, the kitchen, and definitely the lounge room.
No Teeth, No Sex, Weed for Nothin’ and Chicks for Free[7]
[7] With apologies to Dire Straits.
Mr Lawrence said he stopped having sex with Ms Fatchen about a month or two months before 13 June 2021. When asked why he stopped, he said he did not want to have sex with her anymore and “[s]he has no teeth”. He said she did not like it all when they stopped but he “had chicks to catch up with that day and she didn’t understand”.
Mr Lawrence said after they ceased having sex, they had contact “just to chill” and smoke weed together. He said he got the weed for free, but he does not smoke anymore.
Mr Lawrence said he was friends with Ms Fatchen’s brother, who was also at the studio. It was never clarified what the studio was. He was asked about Ms Fatchen’s evidence about a car and his evidence was:
He had a licence, so I put the rego in his name, and it was a struggle to sell but like I wasn’t going off about it, you know what I mean.
Mr Lawrence said the car was a Volkswagen, it was definitely his, and while he paid money for it, it was registered in Tyson Fatchen’s name.
Mr Lawrence said that on 13 June 2021 he woke up at his own house and went to “another chick’s house” which was about a 20-minute walk from Ms Fatchen’s home.
Mr Lawrence’ evidence about exhibit D1 was:
A.You can see that it’s – before we’re meant to catch up on that date, you know what I mean, so to be able to backtrack something like that is ridiculous, you can see how far it had to go down.
Q.When did you first get a message from her, well – did you get a message from her in the morning of 13 June or not.
A.Yeah, yeah. She needed the money and I never take longer than a week to be able to pay it, it’s embarrassing as, and I should have been able to do it and she didn’t believe it either because I’m usually good for cash and I would lend her cash mostly.
Mr Lawrence said exhibit D1 is a screenshot of the messages which were still on his phone. He asserted that Ms Fatchen had framed him for a break and enter and it’s “not his persona”.[8]
[8] I infer Mr Lawrence is referring to the aggravated serious criminal trespass charge that was withdrawn.
He said he did not make up the messages in exhibit D1 and in response to the suggestion the messages were “concocted” he said he said he was not that clever, and that he had “never really heard of anyone doing it but surely someone could”.
Mr Lawrence said he owed Ms Fatchen $50 he had borrowed ten days before 13 June 2021. He wanted to pay her in cash because he did not have any weed. He said in relation to the message exchange in exhibit D1:
It means she’s trying to find a way for me to pay her and I wanted to pay her with cash because I was around the corner with cash.
He said after he wrote “Omw”, the “kid” let him in, and he sort of let himself in.
Mr Lawrence gave rambling evidence about being with another chick, “some other pretty bird” whose name he could not remember. He said:
Some other chick’s house, I was about to go out of town with her and they had money to be able to go out of town, she didn’t believe me I was broke.
He was asked what he did after the message exchange in exhibit D1 and he said:
A.Go to help her out, make her day.
He then clarified he was going to help Ms Fatchen out. When asked what he meant by that, he said, “So I can pay her some cash, like she’s got kids and that, yeah”. He said that he had to walk to Ms Fatchen’s house and when asked what he did when he got there, he said, “I was very calm, like the whole time … and I didn’t make a scene in front of the kids”. He said when he got there he went into the bedroom, and he asked Ms Fatchen:
A.… about Tyson and that, checked my phone. I didn’t have any money on there anymore because it got taken out of my bank and that was weird, it’s happened twice or whatever within half an hour and –
Q. Sorry, what do you mean by that.
A.– it looks like crap.
HIS HONOUR: I just want him to answer some of the questions but carry on.
A.Yeah, it looked like crap, and bloody –
Q.What looked like crap.
A.I really just wanted to get out of there and she really didn’t want to let me, and it looked like she was distraught, and she had been hanging around the wrong people.
Q.Sorry.
A.They put it over me on my birthday, when I couldn’t walk to the corner with my spine injury, with weapons, all three of them.
Q.So you had a discussion with her about Tyson’s – the car.
A.Yeah, yeah, got nowhere like usual I’m pretty sure. Yeah, it was only –
Q.And then what happened.
A.I’m not going to get down to the bottom of it, yeah, on the way – she didn’t want me to leave. It wasn’t because like the chicks or whatever, she just thought I had cash, like you know what I mean.
Q.How did you know she didn’t want you to leave.
A.Well she blackmailed me, as soon as I managed to get out the door she tried to say if you leave, I’m calling the cops or whatever.

Mr Lawrence denied touching Ms Fatchen and said that she made a scene in front of the kids. When asked what he meant by “she made a scene”, he said, “Attacked me, charged constantly”. He denied throwing her into the Barbie Dreamhouse and denied throwing her into the bookshelf or metal shelving. When asked whether he punched her in the face, he said, “God no, you’d know for sure, she must’ve done that herself”.
In cross-examination, Mr Lawrence was asked whether he met Ms Fatchen through her brother. His answer was, “Probably like Tinder and that, I just started doing Tinder again because my last girlfriend was really nice, I met her on there”. Then he said he probably met her through Tinder when he was 20. He was asked when he first met her, and his answer was “She was beautiful”. The Magistrate then said:
HIS HONOUR
Q.That’s not what your instructions – we’ve heard what the complainant has said that’s not what –
A.She was easier than most so that makes me look bad, yeah.
He was then asked how these interactions occurred with her and his answer was “Netflix”. In answer to a question whether they met up “basically once a month and agree to have sex with each other at either – well generally her house”, he said:
Yeah, I wouldn’t have to do too much, it was good, very good, it was great, ‘cos I’m not that great.
He was asked whether he was meeting up with other women during this period and his answer was:
She would always have a lot of dudes there and that and they got her in to bad habits, I could’ve like said something at least, just act pissed off but – changed, stuff changed and these Aboriginals they robbed me and that like, they’re bullies and they could have intimated her –
When again asked whether he was seeing women at the same time as seeing Ms Fatchen, he said “I wanted to root this Toni’s friend, yeah, yeah definitely”.
It was put to Mr Lawrence that he did not have an intimate relationship with Ms Fatchen, and he said, “That’s ridiculous”. When it was put to him that it was a fabricated story, he said:
I mean I’m friends with her brother and her boyfriend, it’s pretty embarrassing that I’m having sex with her, you know what I mean.
Mr Lawrence spoke about Ms Fatchen’s brother having bought Ms Fatchen new teeth and that:
Tyson’s an idiot. He steals, he does everything. You got to be nice to him because he gets suicidal and that.
He then said “Tyson, all of them, he has a full licence, he’s not a complete idiot but he does let the team down”.
The prosecutor attempted to ask Mr Lawrence how long he had known Ms Fatchen’s brother, and his answer was “Yeah, she can – yeah, she hardly likes him”. The prosecutor attempted to ask him again how long he had known Ms Fatchen’s brother, and his answer was “Four years” or “six years at least”. It was put to Mr Lawrence that he met Ms Fatchen through her brother, Tyson. Mr Lawrence said:
He’s introduced me to her, that is a plausible course, but to say that I’ve never had sex with her and she didn’t invite me around that day and I broke in plus hit her, it’s like the only two things that I’ve never done is hit a woman and trespass and break and enter. I had better things to do that day, I had no reason to be upset.
He was asked what he recalled of 13 June 2021, and his answer was:
A.It’s the worst I’ve ever seen her. It didn’t make me hate her, but I definitely wouldn’t talk to her again.
Q.The worst you’ve ever seen who.
A.I don’t like Tyson as much anymore he doesn’t have many friends as well, he kind of needs his friends hey, but –
Q.Who’s the worst that you’ve ever seen.
A.Keep him out of trouble.
He was then asked who he was referring to as being the “worst [he’d] ever seen her” and he clarified it was Ms Fatchen and that she attacked him. He was again asked what he remembered about that morning, and he said:
She wouldn’t let me leave the house. I couldn’t do anything at all so I locked the door … she really didn’t want me to leave and then she tried to blackmail me.
It was put to Mr Lawrence he made up the story about having a relationship with Ms Fatchen and his answer was “She can’t prove me wrong though, I can prove her wrong”. The prosecutor then said:
Q.– having these Facebook exchanges –
A.Let me get back to my life because I’m about to get an awesome job hey, I’ve quit weed.
It was put to him that it was a story he had concocted to account for the fact that Ms Fatchen said that he assaulted her. He said, “I’m not a bully, let alone hit chicks”.
Mr Lawrence agreed that he went to Ms Fatchen’s home looking for Ms Fatchen’s brother. He agreed that he went into the house and met Ms Fatchen in the lounge room. It was put to him that he was asking about Ms Fatchen’s brother because he wanted to get the car back. He said, “Probably so I can pay her, she’s got kids”. It was put to him that Ms Fatchen was not being very helpful when he was looking for her brother and he said, “She was hanging around these Aboriginals that were ridiculous and they’re intimidating especially for a woman, even the dudes just knock out chicks”.
It was put to Mr Lawrence he became upset when Ms Fatchen was not giving him the answers he wanted, and he said:
I’ll survive. Like I was pissed off I couldn’t pay her but I’m not going to get assaultive over it I was going to say, you know what I mean, punch a woman hey, alright.
He was asked whether he was upset with Ms Fatchen and he said, “Not chilled like today”. It was put to him that he punched her in the mouth and his answer was, “She would’ve been like a mutant, she done that herself”.
It was put to him that he grabbed her by the back of her head and threw her into the metal storage rack and he said:
That’s all made up, what so she can hurt herself, a metal one hey, and then I picked her up, I’m trying to get out of the house, and I picked her up she reckons and was it dropped her again?
It was put to him that he picked her up and threw her into and damaged the Barbie Dreamhouse. He said, “I can’t even chill out with people anymore”.
The Magistrate said, “I’ll take it that he didn’t do those things – that he says he didn’t do those things”.
It was put to Mr Lawrence the children were crying, and his answer was “She caused a scene in front of her children. Even if the ex-girlfriends don’t like me the children still always do”.
The Magistrate said:
Q.He’s denied it. Can I just ask, were you wearing rings at the time.
A.Yeah, I’ve been stabbed and shot a few times, so I wear a ring.
…
A.I always wear at least one ring. It is a good excuse to say that I’ve hit her and I wear a ring? I don’t know, there’s a little mark there.
In re-examination, Mr Lawrence said he wears rings on his right hand. He said, “It’s mostly so I don’t have to hit people or something, you know what I mean, so that they don’t –”. When asked by the Magistrate to show the ring, he said, “I’ve been stabbed and shot and that, I like this side of town”. He said that he is a featherweight and was always getting gang bashed. He agreed he would have been wearing the ring he showed the Court when he went to Ms Fatchen’s home on 13 June 2021.
As is clear from my summary, Mr Lawrence evidence was often tangential, rambling, and at times nonsensical in both examination and cross-examination. It is hard to discern what underlies his unusual behaviour. In this regard, I note his counsel’s comment to the Magistrate that Mr Lawrence is an unusual man who had obvious behavioural issues. Mr Lawrence, who appeared by AVL at the hearing of the appeal, was very restless and at one stage stood up prompting his counsel tell him, “Mr Lawrence you need to sit still while this is going on, okay?”.
Counsel’s closing submissions at trial
Just prior to closing submissions, the Magistrate said he expected the submissions would be very simple, there were two different versions, the prosecution had to prove their case beyond reasonable doubt, and it was for him to assess the witnesses.
The prosecution submitted that Mr Lawrence attended Ms Fatchen’s home, punched her and threw her into a metal storage shelf and dollhouse, she received cuts to her lips, and her evidence was clear and concise.
Mr Lawrence’s counsel submitted the photos of Ms Fatchen’s injuries were equivocal and did not resemble, absent expert evidence, injuries sustained from two forceful punches. It was submitted that there was no evidence of the children’s distress or any photos of the damage to the Barbie Dreamhouse. It was accepted that Ms Fatchen gave concise evidence, and that Mr Lawrence was an unusual man who had obvious behavioural issues. Counsel submitted regard should be had to Mr Lawrence’s evidence of his relationship with Ms Fatchen. It was submitted the exhibit D1 messages were damning, could not have been concocted in the manner suggested by the prosecution and, at the very least, should cast doubt on Ms Fatchen’s version of events, and there was significant doubt as to where the truth lies.
The Magistrate’s reasons
The Magistrate commenced his reasons for judgment by reminding himself Mr Lawrence “is presumed innocent, prosecution have the onus beyond reasonable doubt to prove the offence. The prosecution needs to prove all the elements of the assault beyond a reasonable doubt, which in summary involves the intention to apply force to” Ms Fatchen.
In his analysis, the Magistrate made the following 13 points:[9]
[9] [2023] SAMC 12 at [19].
1.I observed Ms Fatchen to be a credible and reliable witness. She gave clear evidence and was not prone to exaggeration. She agreed in her oral evidence that being punched once may not have been correct, and she agreed earlier, when she said in her statement that she had been punched twice, may be more accurate. It is observed the offences occurred about 18 months ago. She maintained her evidence in cross‑examination.
2.The photographs in Exhibit P2 corroborate her version, there is dried blood in photos 2, 3 and 4, and a long graze to her neck, about 5 cm, in photographs 4, 5 6 and 7. These were also observed by Brevet Sergeant Kot, in [her] statement at para.7 in Exhibit P1.
3.I observed [Mr Lawrence] to be discreditable and unreliable. His answers to questions were often vague and imprecise, along with inappropriate smiling at times and laughter.
4.He gave different accounts of the same basic topic at different times in his evidence. For example, in evidence in chief, he said he met Ms Fatchen while at Whyalla High School via the father-to-be of her children, Shaun Walker. He then went on to describe a long sexual relationship he had with her. But in cross-examination, he said he met Ms Fatchen through Tinder 12 years ago, when he was about 20 years of age. Query – whether Tinder was operating 12 years ago. But later in cross‑examination he indicated that it was Tyson i.e., Ms Fatchen’s brother, who introduced them, which is another account. But the one consistent with evidence from Ms Fatchen on that topic.
5.[Mr Lawrence] agreed he does wear rings and produced a large ring during his evidence he said he would wear at the time of the incident.
6.[Mr Lawrence] at one stage called Ms Fatchen a “beautiful person”, they would see each other once a month, mostly at her place, hinting they would have sex, that it was good, it was great.
7.On Ms Fatchen’s account, she has never been in a relationship with [Mr Lawrence], nor had sex with him, or ever lent him money. On [Mr Lawrence’s] account, he says Ms Fatchen has caused injury to herself and made up the story about him. [Mr Lawrence] said Ms Fatchen did not want him to leave the house on 13 June 2021, that he does not “hit chicks”. [Mr Lawrence] stated Ms Fatchen had been in a 10 year relationship, that she loves him.
8.[Mr Lawrence] also describes smoking “weed” with Ms Fatchen strictly at her house.
9.I do not believe [Mr Lawrence’s] account. Ms Fatchen appeared level-headed, as opposed to [Mr Lawrence’s] account. Reinforced by his inappropriate laughing and description of the sexual relationship between them.
10.I have not forgotten the Facebook Messenger messages described by [Mr Lawrence] in Exhibit D1. Ms Fatchen denies these communications, although she agrees it is her picture on them with a kangaroo. I do not know how this technology works, nor was evidence led on this aspect. She agrees she is known as Jenna but stated her view that it is easy to replicate such messages and send them. I accept Ms Fatchen’s version that she did not send the messages to [Mr Lawrence].
11.Mr McGrath was critical of police for not photographing the dolls house said to be damaged, nor the metal shelves referred to in evidence. While I agree that it would have been helpful, it does not, in my view, derogate otherwise from my analysis.
12.[Mr Lawrence’s] description of the relationship he has had with Ms Fatchen appears bizarre and lacking reality, as opposed to her account of knowing him essentially through her brother.
13.[Mr Lawrence] agreed in evidence that there was an issue with Ms Fatchen’s brother, Tyson, about the registration of a motor vehicle, which corroborates her account of [Mr Lawrence] wanting to speak to her brother about that topic.
(Emphasis added)
Having detailed his analysis, the Magistrate found that the prosecution had proved their case beyond reasonable doubt and rejected Mr Lawrence’s defence beyond reasonable doubt. The Magistrate said, in his view, the defence had largely been made up by Mr Lawrence against a background of his dysfunctional attitude and belief as to the relationship he had with her.
His Honour concluded finding “that on the morning of 13 June 2021, [Mr Lawrence] firstly punched Ms Fatchen to her face twice, secondly grabbed her head and threw her into a storage rack, and finally picked her up, by her head, and [threw] her into her daughter’s Barbie dreamhouse”.
Submissions
Ground 1 – The Magistrate erred at law by framing the trial as a choice between Mr Lawrence’ evidence and Ms Fatchen’s
Mr Lawrence submitted that the forensic contest at trial was whether the Magistrate could be satisfied of Mr Lawrence’s liability for assault beyond reasonable doubt on the evidence of Ms Fatchen.
Counsel for Mr Lawrence submitted that Mr Lawrence’s case was that Ms Fatchen’s evidence was not consistent with her purported injuries, and she was making up allegations because he refused to be in a relationship with her. It was contended that, to resolve this contest, the Magistrate was required to exclude Mr Lawrence’s evidence as a reasonable possibility beyond reasonable doubt. It was further contended that this step had to be taken before returning to the question of whether he could resolve the evidential contest to the criminal standard with the burden being on the prosecution to prove the elements of the offence. It was submitted this was not the approach of the Magistrate and a plain reading of his judgment at [19] framed the forensic contest as a comparison of Ms Fatchen’s evidence and Mr Lawrence’s evidence. It was argued that the Magistrate’s findings are little more than a comparison of competing versions of events.
It was submitted that the Magistrate was required to give himself a Liberato v The Queen[10] direction to resolve the conflict between Mr Lawrence’s evidence and that of Ms Fatchen, which he did not do, and, as a consequence, this Court is unable to infer he applied the correct test in making his findings.
[10] Liberato v The Queen (1985) 159 CLR 507.
Mr Lawrence also complains about the use of the adjective “discreditable” by the Magistrate to describe his evidence. It was submitted the Magistrate used the term in the context of his observation of Mr Lawrence’s demeanour and, as such, it is liable to give rise to an inference that he took an adverse view of Mr Lawrence’s character, particularly due to the Magistrate’s repeated observations that Mr Lawrence was inappropriately behaved and laughed while giving evidence.
It was pointed out that the Magistrate would have been entitled to not believe Mr Lawrence’s evidence where it conflicted with Ms Fatchen’s evidence and was entitled to observe and make criticisms of his demeanour to assess his truthfulness as a witness. It was submitted that this does not appear to have been the Magistrate’s process of reasoning. It was further submitted that what the Magistrate was not entitled to do was simply disbelieve Mr Lawrence or prefer Ms Fatchen’s evidence where it conflicted without returning to the ultimate issue of liability.
The respondent reminded the Court that where a judge’s finding depends to any substantial degree on the credibility of a witness, such finding must stand unless the appellant can satisfy the Court that the trial Judge failed to use, or palpably misused, their advantage or otherwise acted on evidence that was inconsistent with facts incontrovertibly established on the evidence, or which was glaringly improbable.[11]
[11] Fox v Percy (2003) 214 CLR 118 at [66] citing Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
The respondent referred to Brevet Sergeant Kot observing that Ms Fatchen had injuries to her lips and that there were broken parts on her lips. I note Ms Fatchen referred to her top lip, not lips, sustaining injury.
It was submitted that defence counsel did not, at any stage, put to Ms Fatchen an account of how her injuries were caused. It was not put to her in cross‑examination that she caused the injuries to herself, that she attacked Mr Lawrence, or that the injuries were caused by accident or in self‑defence.
The respondent referred to Mr Lawrence’s inconsistent evidence regarding when he met Ms Fatchen. When first asked when he met her, he said he had known her for probably longer than six years and that he could have met her through her boyfriend, whom he had known since he was 14. The respondent noted that Mr Lawrence is currently 32 and that he gave evidence that he commenced a relationship with Ms Fatchen when he was “18 to 20” years of age and had first had sex with her 12 years ago. In cross-examination, Mr Lawrence said that he met her on Tinder when he was about 20. He said had known her brother for four years and agreed that the brother might have introduced him to Ms Fatchen. It was submitted Mr Lawrence agreed he had attended Ms Fatchen’s house looking for her brother, that he had asked Ms Fatchen about her brother and the car, and he was upset with Ms Fatchen. It was pointed out Mr Lawrence gave evidence that he was attacked and that he was constantly charged at by Ms Fatchen, but it was not explored further by defence counsel.
It was submitted that it was clearly open to the Magistrate to reject Mr Lawrence’s evidence where it differed from that of Ms Fatchen. It was submitted that Mr Lawrence’s evidence could be appropriately described as inconsistent, vague, and imprecise. It was submitted that the details of his defence case were unclear, for example, how he came to know Ms Fatchen, how it was he came to be at her home, in what circumstances she came to attack him, how she attacked him, where she attacked him, how she came to have the injuries she clearly sustained to her mouth and the back of her neck. It was submitted that many of the hard-to-discern particulars of the defence case were not put to Ms Fatchen.
It was contended that it was appropriate for the Magistrate to find Mr Lawrence to be discreditable given the number of unresponsive answers he gave during his evidence, which had the effect of bringing into question the reputation of both Ms Fatchen and her brother.
It was submitted that the Magistrate, who had had the opportunity to observe and assess Ms Fatchen’s demeanour firsthand, found Ms Fatchen to be a credible and reliable witness. Her injuries were “corroborated” by the observations of Brevet Sergeant Kot, and the photographs that comprise exhibit P2 were entirely consistent with the injuries sustained by a person punched in the mouth by someone wearing a ring and thrown into a plastic doll’s house.

It was pointed out Mr Lawrence conceded that he attended Ms Fatchen’s home to speak to her brother and he agreed that there was an issue regarding the registration of the Volkswagen. It was submitted this, therefore, “corroborated” Ms Fatchen’s account as to why Mr Lawrence came to her home.
The respondent submitted that, following his analysis, the Magistrate specifically stated he rejected Mr Lawrence’s defence beyond reasonable doubt and that the prosecution had proved their case beyond reasonable doubt. It was contended that when the directions at [2] of the Magistrate’s judgment and his conclusion at [22] are considered, this is clearly not a case where he has erred by conflating a preference for the evidence given by Ms Fatchen with the establishment of the elements beyond reasonable doubt. It was submitted that the Magistrate was not required, in the circumstances of this case and given the nature of Mr Lawrence’s evidence, to state with specificity what evidence he accepted or rejected before returning to whether the prosecution had proved its case beyond reasonable doubt.
Ground 2 – The Magistrate erred at law by providing inadequate reasons to resolve the forensic contest at trial
Mr Lawrence complains that the Magistrate did not believe his account and found he made it up without explaining what aspects of his evidence the Magistrate accepted or rejected. He complains about an absence of findings as to why the Magistrate accepted Ms Fatchen’s evidence concerning the authorship of the messages in exhibit D1 and complains about an absence of findings in relation to the inconsistency between Ms Fatchen’s evidence and the paucity of injuries to her mouth.
Mr Lawrence pointed out that it was common ground that he and Ms Fatchen were at the house and that they had an argument. Mr Lawrence submitted that the Magistrate was duty bound to explain which parts of his evidence he accepted or, at least, could not exclude as a reasonable possibility, before returning to the ultimate question of liability. He pointed out that the Magistrate’s conclusion that he largely made up his evidence is incongruous with the reality that his evidence and Ms Fatchen’s evidence were consistent to an extent.
It was submitted that the injuries inflicted on Ms Fatchen were a significant issue at trial. It was unchallenged on Mr Lawrence’s evidence that he was wearing a ring on his right hand at the time. The Magistrate accepted the photographs were injuries to Ms Fatchen’s lip and neck, but there were no reasons dealing with the inconsistency of her evidence about the assault and the fact that the injuries were likely to be greater if struck by a fist wearing a large ring. The Magistrate determined that Mr Lawrence’s evidence had largely been made up. It was argued this could be read as the Magistrate saying that part of Mr Lawrence’s evidence was true, but it is not possible to interpret or infer which parts of Mr Lawrence’s evidence were accepted or rejected.
Mr Lawrence submitted that in finding Ms Fatchen did not author the messages in exhibit D1, the Magistrate made no comment about the probative value of this evidence and did not explain why he accepted Ms Fatchen’s evidence.
Mr Lawrence contended that, considering the Magistrate found Ms Fatchen did not author the messages, it is concerning there are no findings at all about who authored the messages purportedly from “Jenna”. It was submitted there is no alternative candidate, and that Ms Fatchen’s evidence on this subject was a self‑serving assertion that it would be just as easy to replicate the messages. It was pointed out that Ms Fatchen admitted she often went by the name Jenna, and she agreed her Facebook profile was labelled “Jenna Fatchen” and her profile picture was a picture of her feeding a kangaroo, as depicted in exhibit D1.
Mr Lawrence submitted the Magistrate’s failure to deal with the essential features of his case means that this Court is unable to assess whether his rejection of the case was open to him, especially when Ms Fatchen’s evidence about her Facebook profile lent support to Mr Lawrence’s evidence that she was the author of the messages and he went around to her house for the reasons he expressed in his evidence.
In response to this ground, the respondent said it must be kept in mind that the Magistrates Court is a court of summary jurisdiction. The respondent referred to the following statement of Doyle CJ in R v Keyte in support of the submission that in a case in which evidence of a complainant is crucial and the trial Judge accepts that evidence, a detailed explanation is not necessarily required:[12]
I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.
[12] (2000) 78 SASR 68 at [56].
It was submitted that the Magistrate clearly found Ms Fatchen to be a credible and reliable witness and such a finding is consistent with the evidence she gave.
In relation to Mr Lawrence’s complaints that there is an inconsistency between the evidence of Ms Fatchen and the nature of the injuries she alleged she sustained, the respondent argued the complaint is purely speculative and based on the opinion of counsel rather than grounded on any evidence to that effect. It was submitted that the injuries sustained were, in fact, entirely consistent with Ms Fatchen being hit to the mouth by Mr Lawrence, who was wearing a ring or rings.
It was contended that in rejecting the defence case beyond reasonable doubt, finding Ms Fatchen to be a credible and reliable witness, and finding that the photographs[13] corroborated Ms Fatchen’s version, there was no real inconsistency for the Magistrate to resolve as to the causation and nature of Ms Fatchen’s injuries.
[13] Exhibit P2.
In relation to exhibit D1 and the complaint that the Magistrate was bound to provide reasons as to why he accepted Ms Fatchen’s evidence as to the authorship of the messages, it was submitted that the reasons can be inferred and would appear to be obvious and based on the Magistrate’s assessment of the credibility and reliability of Ms Fatchen, the lack of evidence as to the technology underpinning Facebook Messenger profiles, and Mr Lawrence’s evidence being imprecise, vague, and inconsistent.
Ground 3 – The Magistrate erred at law by misdirecting himself on the elements of assault
Mr Lawrence complains that the Magistrate failed to articulate the elements of assault apart from the application of physical force.
It was submitted that there remains a question regarding the third element of unlawfulness and whether the Magistrate failed to direct himself or make any mention of the statutory defences and whether he was satisfied that the assault was committed without lawful excuse. It was argued that the Magistrate’s failure to mention the third element of assault was relevant to Mr Lawrence’s evidence that Ms Fatchen had tried to blackmail him and had attacked him. It was contended that, notwithstanding Mr Lawrence’s evidence that he did not apply force to Ms Fatchen, it was open to the Magistrate to find that he did and that it was necessary to direct himself as to whether the evidence raised a defence prior to returning to the question of whether the third element had been proved.
In relation to this ground of appeal, the respondent said that the Magistrate did not misdirect himself on the elements of assault and that his Honour noted the prosecution needed to prove all the elements of assault and summarised this as an intention to apply force to Ms Fatchen. It was pointed out that there was no evidence led that the conduct in issue was anything other than voluntary or in self‑defence or otherwise committed without lawful excuse. Accordingly, it was submitted there was no requirement that the Magistrate set out the elements of the offence of assault in full.
Ground 4 – The Magistrate erred in fact and law by finding that Mr Lawrence’s evidence about the car registration corroborated Ms Fatchen’s evidence
Mr Lawrence complains about the Magistrate’s observations that his evidence regarding the registration of the car corroborated Ms Fatchen’s evidence in this topic. Mr Lawrence submitted that corroboration is a species of evidence that is independent of a witness, but which tends to support a witness’ evidence in a material particular. Mr Lawrence submitted it is difficult to explain how the Magistrate could have concluded that the agreement by Mr Lawrence on the topic in cross-examination amounted to corroboration. It was submitted there was no dispute Mr Lawrence was at Ms Fatchen’s house. It was submitted the evidence between Mr Lawrence and Ms Fatchen diverged on what occurred when Mr Lawrence arrived at Ms Fatchen’s house. It was submitted the differing motivation for Mr Lawrence’s attendance was a contradiction of Ms Fatchen’s evidence by the defence, which undercut support for Ms Fatchen’s credibility.[14] It was submitted there is no evidence the prosecution had led evidence as corroboration and the Magistrate’s reasons do not disclose any of the reasoning that the authorities in R v Schlaefer[15] and Eade v The King[16] require. It was submitted that the Magistrate’s inclusion of point 13 in his reasons regarding the corroboration of Ms Fatchen’s evidence by Mr Lawrence’s evidence is an important part of his analysis of Ms Fatchen’s evidence. It was contended the Magistrate’s apparent line of reasoning was impermissible and could not be used to support Ms Fatchen’s evidence to enhance her credit.
[14] Exhibit D1.
[15] (1984) 37 SASR 207.
[16] (1924) 34 CLR 154.
The respondent submitted Ms Fatchen gave evidence that Mr Lawrence attended her home screaming about and trying to find her brother to transfer registration for the car. It was submitted this comprised evidence as to the reason why Mr Lawrence not only attended her home that morning but also why he was upset. It was argued that the evidence is relevant to a fact in issue, and that Mr Lawrence did not give direct evidence that Ms Fatchen invited him over, rather he asserted that she sent him messages which comprise exhibit D1, which she denied sending. It was contended that not only did Mr Lawrence give evidence that he had purchased a vehicle that was registered in Ms Fatchen’s brother’s name, but he also agreed that he attended the house to see her brother. When he was asked in cross-examination what he said to Ms Fatchen, he stated that he asked about her brother and “all that”. He agreed that he asked her about her brother and the car and was upset with her. He gave evidence that upon his attendance there were tense words about a motor vehicle. It was submitted this was entirely consistent with Ms Fatchen’s evidence on the topic and corroborates her account as to why he attended, became upset, and assaulted her.
Consideration
As Mr Lawrence’s complaints in grounds 1 and 2 overlap, I will consider them together. There can be no doubt Mr Lawrence’s evidence on certain topics was confusing and, on my assessment, open to various interpretations. In relation to how long he had known Ms Fatchen, his evidence could be as submitted by the prosecution. It could also be that he met Ms Fatchen through the father of her children and through Tinder, bearing in mind his assertion of a sexual relationship with her. Mr Lawrence agreed it was plausible he met her through her brother. The effect of his evidence may be that, having had a clandestine relationship of many years, Ms Fatchen’s brother formally introduced him to Ms Fatchen six years ago, noting his evidence:
I mean I’m friends with her brother and her boyfriend, it’s pretty embarrassing that I’m having sex with her, you know what I mean.
Mr Lawrence agreed that there was an argument or tense words about the car at Ms Fatchen’s home. He gave evidence that upon arrival he asked Ms Fatchen about her brother “and that” and checked his phone and found he did not have any money. This evidence suggests that, upon attendance at Ms Fatchen’s home, both the car and the money he owed Ms Fatchen were discussed. The discussion about the car “got nowhere”. He said Ms Fatchen thought he had cash, did not want him to leave, and blackmailed him. He gave evidence she said, “If you leave, I’m calling the cops”. Mr Lawrence said he did not touch Ms Fatchen and that she “made a scene” by attacking him and charging constantly. In response to the following question in cross-examination:
And you’re asking about Tyson because he’s got this car that essentially you own because you’ve put all of your savings into this car, so it’s your car and you want the car back, is that right.
Mr Lawrence said, “Probably so I can pay her, she’s got kids”. This answer suggests Mr Lawrence wanted the car and to pay back the debt he owed Ms Fatchen. He said he was “pissed off” he could not pay her. Mr Lawrence had said in examination-in-chief, the car “was a struggle to sell”. He also gave evidence he was about to go out of town “with some other chick … and they had money to go out of town and she didn’t believe me I was broke”. This, together with his evidence “she just thought I had cash”, suggests his account is that Ms Fatchen was of the belief he had money as he was going out of town, but it was the person he was going out of town with who had money, not him.
In response to being asked whether he was upset with Ms Fatchen, he said he was “not chilled like today”. When it was put to him that he punched her in the mouth, he said “She would’ve been like a mutant she done that herself”.
The Magistrate, in stating he did not believe Mr Lawrence’s account, said Ms Fatchen appeared level-headed as opposed to Mr Lawrence’s account. In saying “Reinforced by his inappropriate behaviour laughing and description of the sexual relationship between them”, the Magistrate appears to be saying either the inappropriate behaviour reinforced his disbelief in Mr Lawrence’s account or that it reinforced his assessment of Ms Fatchen’s demeanour as level-headed. The Magistrate referred to Mr Lawrence’s description of his relationship with Ms Fatchen as bizarre and lacking reality as opposed to Ms Fatchen’s account of knowing Mr Lawrence through her brother.
The Magistrate said he rejected the defence beyond reasonable doubt. However, his analysis of Mr Lawrence’s and Ms Fatchen’s evidence suggests he contrasted their evidence against what his Honour perceived to be Mr Lawrence’s inappropriate behaviour and bizarre description of the relationship between them, which lacked reality.
The Magistrate was entitled to prefer the evidence of Ms Fatchen over that of Mr Lawrence. However, in a case which turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, as Doyle J stated in Chandler v Police:[17]
Each of these authorities emphasises the need in a criminal case to remain focused upon the finding that each of the elements of the relevant offence has been established by the prosecution beyond reasonable doubt. It is not sufficient for this purpose that the trier of fact (be it the jury, or the judge in the case of a trial by judge alone) rejects the defendant’s version of events. Nor is it sufficient that the judge or jury prefers the evidence of a prosecution witness or is satisfied (even beyond reasonable doubt) merely as to the truthfulness of that witness. It is necessary to consider whether, having regard to the evidence as a whole (which will include consideration of both the truthfulness and reliability of the prosecution witnesses) the prosecution has established each element of the relevant offence beyond reasonable doubt. The last of these cases, in particular, emphasises the need also for the judge’s reasons (in the case of a trial by judge alone) to make it plain that this approach has been followed.
[17] [2016] SASC 42 at [24], discussing Liberato v The Queen (1985) 159 CLR 507, R v Lavery (2013) 116 SASR 242, and Douglass v The Queen (2012) 86 ALJR 1086.
Mr Lawrence’s defence must be excluded as a reasonable possibility. The issue is not whether Ms Fatchen’s “version is to be preferred, but whether it (in conjunction with any other relevant evidence) establishes beyond reasonable doubt each of the elements of the offence”.[18]
[18] Chandler v Police [2016] SASC 42 at [37] (Doyle J).
In considering whether Mr Lawrence’s defence, having regard to the whole of the evidence, should be rejected as a reasonable possibility, it was necessary for the Magistrate to articulate what of his evidence he accepted, what he rejected, and what aspects he considered “had largely been made up”. It would appear the Magistrate considered that Mr Lawrence’s evidence about the issue with Ms Fatchen’s brother and the registration of the car supported Ms Fatchen’s evidence. It would also appear his Honour considered one of the accounts given by Mr Lawrence as to how he met Ms Fatchen supported Ms Fatchen’s evidence “on this topic”. The Magistrate noted Mr Lawrence showed a ring he wore on 13 June 2021 to the Court. His Honour only remarked the ring was “quite a large ring” and did not record observing any “points” on the ring as alleged by Ms Fatchen.
It was necessary to consider Ms Fatchen’s reliability particularly as she gave evidence that she “has anxiety” and “sometimes [forgets] things”, when asked why she could not recall having told police she was punched twice.
It was also necessary to carefully consider exhibit D1. I infer from the Magistrate’s analysis this must be an aspect of the defence he considered was made up. Whilst Ms Fatchen could give evidence about her experience with fake accounts of her profile, she was not asked, nor was there any evidence regarding, the ease with which she asserted fake profiles could be created. This was significant because the Magistrate said he did “not know how this technology works, nor was evidence led on this aspect”. In proceeding to “accept Ms Fatchen’s version that she did not send the messages to” Mr Lawrence, the Magistrate was, in effect, accepting her opinion “that it is easy to replicate such messages and send them” without interrogating exhibit D1 further.
Ms Fatchen did not give evidence that anyone to her knowledge was, at the time of her evidence or as at 13 June 2021, creating fake profile accounts of her Facebook account. Her evidence was limited to her experience with fake profiles as a teenager. I infer she was in her late 20s or early 30s in 2021.
Mr Lawrence’s counsel asked her:
Q.Okay, so it would be a pure coincidence that we have messages that purport to be from Jenna at 7.58 a.m. when you say that he got there at 8.40 a.m.
A.These are not message from me, I did not send these.
Mr Lawrence said in cross-examination that it would have taken about 11 minutes to walk to Ms Fatchen’s home from Toni’s house and that he went straight there. The only message sent by Mr Lawrence in exhibit D1 is “Omw”. Mr Lawrence explained to the Magistrate this meant “on my way”. There was no evidence that Mr Lawrence went anywhere between sending that message, which appears to have been sent at 7:58 am on 13 June 2021, and arriving at Ms Fatchen’s home around 8:40 am. This is important because there was no evidence regarding whether Facebook messages can be fabricated to include fictitious time and date stamps. There was no evidence that a third party was operating Ms Fatchen’s real Facebook profile without her permission, or a third party was operating a fake duplicate of her Facebook profile, or that exhibit D1 was a doctored screenshot.
Questions were not asked about what appears to be a one minute and 26 second incoming video chat from the profile in the name of “Jenna” to Mr Lawrence’s profile recorded in exhibit D1 at 7:40 am. As the respondent pointed out, Ms Fatchen’s Facebook profile was not tendered at the trial.

The Facebook Messenger evidence should not have been discounted upon acceptance of Ms Fatchen’s evidence. The Magistrate needed to be satisfied the prosecution had excluded as a reasonably possibility that Ms Fatchen was the author of the messages and the person who made the video call to Mr Lawrence’s profile. If it is a reasonable possibility the messages recorded in exhibit D1 were authored by Ms Fatchen, they have significant weight where Ms Fatchen gave evidence that she “only really” interacted with Mr Lawrence “when he’s hung out with my brother” and she denied:
1.having had any communication with Mr Lawrence though her Facebook account;
2.having had a sexual relationship with Mr Lawrence;
3.knowing Mr Lawrence was coming around on the morning of 13 June 2021;
4.lending Mr Lawrence money;
5.sending the messages in exhibit D1; and
6.not telling the truth.
The messages in exhibit D1 suggest:
1.Ms Fatchen and Mr Lawrence communicated through Facebook Messenger;
2.Ms Fatchen had a relationship quite independent of when Mr Lawrence hung out with her brother;
3.Ms Fatchen wanted Mr Lawrence to supply her with weed;
4.Ms Fatchen had lent Mr Lawrence $50;
5.upon Mr Lawrence giving Ms Fatchen “a few buds”, she would forgive the debt of $50;
6.Ms Fatchen knew Mr Lawrence was on his way to her home on the morning of 13 June 2021; and
7.Ms Fatchen’s requests for weed and the debt of $50 were the reasons for Mr Lawrence attending her home.
Ms Fatchen’s evidence about forgetting things due to her anxiety, coupled with the fact she has not been excluded as the author of the messages in exhibit D1, undermines her assessment as reliable and credible witness.
On my assessment, the prosecution did not exclude as a reasonable possibility that Ms Fatchen was the author of the messages in exhibit D1 or that the tense words between Mr Lawrence and Ms Fatchen on 13 June 2021 included the issue of the $50 debt. Mr Lawrence’s defence was not excluded as a reasonable possibility.
Grounds 1 and 2 are made out and the appeal is allowed.
Whilst it is not necessary to consider grounds 3 and 4, I indicate in relation to ground 3 that it would have been preferable for the Magistrate to address each of the elements of assault. However, I agree with the respondent that the evidence did not require consideration of lawful excuse. Mr Lawrence maintained he did not touch Ms Fatchen and did not give any evidence that he touched her when she “attacked me, charged constantly”, would not let him leave, and tried to blackmail him. In relation to ground 4, it would have been preferable for the Magistrate to refer to aspects of the evidence given by Mr Lawrence as supporting or consistent with Ms Fatchen’s evidence rather than saying it corroborated her account.
Conclusion
Having reviewed the evidence and borne in mind the Magistrate’s advantage in assessing the credibility and reliability of the witnesses, I am not satisfied the evidence was sufficient to establish beyond reasonable doubt that Mr Lawrence is guilty of assault.
Mr Lawrence must be found not guilty.
I allow the appeal. I set aside the conviction and sentence imposed in the Magistrates Court. I enter a verdict of acquittal in respect of count 2 on the Information dated 26 July 2021.