Lobosco v Police - [2021] SASC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
LOBOSCO v POLICE
[2021] SASC 4
Judgment of the Honourable Justice Bleby
28 January 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
EVIDENCE - ADDUCING EVIDENCE - COURSE OF EVIDENCE - EVIDENCE BEFORE TRIAL - AFFIDAVITS AND STATUTORY DECLARATIONS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - EVIDENCE IN CONTRADICTION
Appeal against conviction.
The appellant was convicted of aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) following a trial before a Magistrate.
On the night of 29 December 2018, the appellant was travelling in a taxi in Edwardstown. The taxi stopped behind a car in which the alleged victim, Mr Robinson, was supervising his daughter as she was learning to drive. On the prosecution case, the victim’s daughter stalled the car at a set of traffic lights, prompting the taxi driver, Mr Antonopoulos, to honk his horn. Mr Robinson got out of the car, went around to the back and pointed to the ‘L’ plate. He returned to the car, where his window was down. Meanwhile, the appellant exited the taxi and approached the front passenger window where Mr Robinson was now sitting. There was an exchange between the appellant and Mr Robinson, during which the appellant produced an extendable baton from a pouch. As Mr Robinson got out of the car and stood up, the appellant struck him multiple times with the baton.
The appellant’s case was that he made no physical contact with Mr Robinson at the car, and never had anything in his hands. Rather, Mr Robinson challenged him and pushed the door open. He pushed back, but Mr Robinson, who was a larger man, pushed his way out. The appellant fled. Mr Robinson was the aggressor and chased him to a nearby car park.
The appellant appeals the conviction on the following grounds:
1. Having admitted the 4 page statement of Jim Antonopoulos as having been agreed, the learned trial magistrate erred in making a number of findings inconsistent with the contents of that statement;
2. In the alternative the defendant was deprived of procedural fairness, as a result of the prosecution neither calling the witness as a prosecution witness, nor presenting the witness for cross-examination;
3. The learned trial Magistrate erred in directing herself that it was open for her to place greater weight on the witnesses 'whose evidence I heard and accept';
4. In the alternative, the learned Magistrate erred in failing to warn counsel as to her view on the status of the agreed statement.
Held, granting an extension of time to file the Notice of Appeal and dismissing the appeal:
1. The fact that a witness statement is tendered without challenge to any of its contents does not make the contents of the statement immutable and thereby bind the prosecution;
2. The magistrate was entitled to make findings inconsistent with the contents of the affidavit of Mr Antonopoulos;
3. The defence proceeded in a manner consistent with the understanding that the affidavit was always going to be subject to scrutiny by the magistrate. It was not necessary for the magistrate to warn the parties as to her view of its status.
Magistrates Court Act 1991 (SA) ; Criminal Law Consolidation Act 1935 (SA) s 20(4); Summary Offences Act 1953 (SA) s 21F(1)(b); Evidence Act 1929 (SA) s 34KA, referred to.
The Queen v Apostilides (1984) 154 CLR 563563; R v M, RS (2018) 131 SASR 24; Frunks v Police [2016] SASC 120, considered.

LOBOSCO v POLICE
[2021] SASC 4

Magistrates Appeal: Criminal

BLEBY J: This is an appeal against conviction pursuant to s 42 of the Magistrates Court Act 1991 (SA). On 18 June and 2 July 2020, the appellant was tried before a magistrate on a charge of aggravated assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), and a charge of using a prohibited weapon contrary to section 21F(1)(b) of the Summary Offences Act 1953 (SA). The first charge was aggravated due to the appellant’s use of the prohibited weapon.
The prosecution case, based primarily on the evidence of a Mr Robinson, was that on 29 December 2018 at about 10:30pm, Mr Robinson was supervising his daughter, Jordan, as she was learning to drive. Mrs Robinson was a passenger in the back seat. Jordan stopped the car at a set of traffic lights at the intersection of South Road and Raglan Avenue in Edwardstown. When the lights turned green, she stalled the car. A taxi behind started beeping its horn, so Mr Robinson got out of the car, went around to the back and pointed to the ‘L’ plate. He returned to the car, where his window was down.
Meanwhile, the appellant exited the taxi and approached the front passenger window where Mr Robinson was now sitting. There was an exchange between the appellant and Mr Robinson, during which the appellant produced an extendable baton from a pouch. Mr Robinson was unable to raise the window as the car remained stalled. Fearing for his safety, he tried to exit the car. The appellant pushed the car door back against him and he pushed it out. As Mr Robinson got out of the car and stood up, the appellant struck him multiple times with the baton. He sustained various injuries, including a broken arm on account of attempting to protect his head.
The appellant’s case was that he was a passenger in the taxi. When the car in front stalled, the taxi driver beeped the horn. Mr Robinson got out of the car and came around to the driver’s side door of the taxi. He was yelling and pointed at the ‘L’ plate, and then went back to the car. The appellant then said to the taxi driver that he would get out to see if Mr Robinson was okay. He went to ask if everything was ‘okay and fine’. He made no physical contact with Mr Robinson at the car, and never had anything in his hands. Rather, Mr Robinson challenged him and pushed the door open. He pushed back, but Mr Robinson, who was a larger man, pushed his way out. The appellant fled. Mr Robinson was the aggressor and chased him to a nearby car park.
Mr Robinson, Mrs Robinson and Jordan gave oral evidence. Their evidence was largely consistent and reflected the prosecution case. Mrs Robinson accepted in cross-examination that Mr Robinson was frustrated when he exited the car. She did not see her husband approach the taxi driver, but conceded that it was possible that he did so. She said that when the appellant approached Mr Robinson at the window, there was an exchange of words, the content of which she could not recall. She said it was not the type of conversation where the appellant was checking on the people in the car.
Jordan accepted that when her father went around behind the car and pointed to the ‘L’ plate, he had said something to the car behind, but she did not know what he said. She said that when the appellant presented at the car window, he was almost yelling at her and her dad. She saw a pouch in the appellant’s hand, and that he produced, suddenly, a cylindrical object. She saw her father open the car door to push him out of the way. Her father was not angry at that stage. Mr Robinson ran into the Hungry Jacks car park, with the appellant following. When they came back, Mr Robinson was chasing the appellant.
The fourth prosecution witness was the taxi driver, Mr Antonopoulos. The transcript simply records that following a ‘discussion re agreed facts’, the prosecution tendered his 4-page affidavit. He was not called to give oral evidence.
The evidence of Mr Antonopoulos was to the effect that the appellant and his family were regular customers of his taxi service, and that he had known them for about a year. With respect to the incident, his evidence was that Mr Robinson approached the driver’s side of the taxi and started swearing and abusing him. Mr Antonopoulos remained calm and told Mr Robinson that he had just beeped to get their attention as he thought that the driver may have forgotten to take off.
His evidence was then as follows:
The male passenger got back into his car. Paolo [the appellant] then jumped out of the front passenger seat of my car and looked upset. He told me he was upset that the male was yelling at me and he was going to ask the male why he was swearing at me. Paolo approached the car by walking up to it on the passenger side. I saw the passenger door open on the vehicle and the male who had yelled at me got out and started chasing Pablo [sic]. Pablo [sic] then ran away from the car with the male chasing him towards the shopping centre car park.
His evidence was that he did not see the appellant holding anything when he got back into the taxi, and that he did not see the appellant and Mr Robinson physically touch each other. Further, other than what he was able to recount in paragraph 8 of his affidavit, above, he said that he did not see what had happened between the appellant and Mr Robinson.
There are a number of matters to note with respect to this affidavit. First, Mr Antonopoulos’s account of the appellant’s words when he got out of the taxi differed materially from, and indeed contradicted, the appellant’s own account. Secondly, he was unable to shed any light on what had actually occurred between the appellant and Mr Robinson. Thirdly, his evidence as to the existence of the weapon was extremely limited, being only that he did not see the appellant holding anything when he got back into the taxi. The Robinsons’ evidence was that the appellant had produced an extendable baton from a pouch when at the side of their car. The main support the affidavit gave to the appellant was that it supported the appellant’s account that Mr Robinson had been abusive at the driver’s side of the taxi when he had first got out of his car.
The magistrate expressed that she was satisfied beyond reasonable doubt of the following facts:[1]
[1] Magistrate’s Reasons for Judgment, 10 August 2020 at [56].
·On 29 December 2018 at Edwardstown, Jordan Robinson was learning to drive, supervised by her father Mr Robinson, and stalled the family car at traffic lights;
·Mr Antonopoulos was driving a taxi and was stationary behind the Robinson’s car when it stalled;
·Mr Lobosco was a passenger in the taxi driven by Mr Antonopoulos;
·Mr Antonopoulos tooted his horn at least twice when the Robinson’s [sic] car did not move when the traffic light changed to green;
·Mr Robinson got out of the car and went to the rear of the car and pointed to the L plate, he then returned to front passenger seat of his car and shut the door, the window was down;
·Mr Lobosco got out of the car and approached the front passenger side of the Robinson’s car where Mr Robinson was seated;
·Mr Lobosco produced an extendable baton from a pouch and flicked it open;
·Mr Robinson was concerned for his safety and so pushed his way out of the car to be on level ground with Mr Lobosco;
·As Mr Robinson was getting out of the car, Mr Lobosco struck him on multiple occasions with the baton, across his back, left-hand side and left arm which he had raised to protect his head;
·As a result of the strikes with the baton at the car, Mr Robinson sustained a non-displaced, stable fracture to the distal part of the ulna bone;
·The strikes with the baton were deliberate;
·Mr Robinson did not consent to the strikes;
·Mr Lobosco had no lawful authority to strike Mr Robinson; and
·The extendable baton was an offensive weapon.
Accordingly, the magistrate found the appellant guilty of aggravated assault causing harm, but said that she would hear from the parties as to whether the second count of using a prohibited weapon had been laid as an alternative to Count 1, the elements of that count being encompassed in the circumstances of aggravation. It appears that the prosecution withdrew Count 2 on 10 August 2020, the day on which judgment was delivered.
On 9 October 2020, the appellant filed a Notice of Appeal, over a month out of time. At the hearing of the appeal on 9 December 2020, I granted an extension of time.
The appellant advances four grounds of appeal. The appeal revolves around the treatment of the affidavit of Mr Antonopoulos (Antonopoulos affidavit) by the magistrate and the motivations of the parties in their approach to this affidavit. On the hearing of the appeal, the central argument presented by Mr Lang, counsel for the appellant, was that given the ambiguity that he submitted surrounded the approach to the Antonopoulos affidavit, the appellant was deprived of the benefit of that evidence and was denied procedural fairness. The lack of clarity in the process of agreeing the evidence led to the entire trial proceeding on a misunderstanding between the prosecution and defence. This argument underpins each ground.
Ground 1
Ground 1 complains as follows:
1.Having admitted the 4 page statement of Jim Antonopoulos (page 2 Transcript) as having been agreed, the learned trial magistrate erred in making a number of findings inconsistent with the contents of that statement. (Reasons page 4 para 23-25; page 8 para 49)
As I have identified above, page two of the trial transcript records that there was a ‘discussion re agreed facts,’ followed by the affidavit being admitted by the magistrate. By an affidavit dated 2 December 2020, the police prosecutor who conducted the trial gave the following account of the events leading to this tender:[2]
On the morning of the trial and prior to the trial commencing, I had a discussion with Ms Johanson confirming the Affidavits and other documents that I would tender as agreed statements, including Mr Antonopoulos’ Affidavit and agreed facts that would be part of my opening address.
I advised Ms Johansen [sic] that Mr Antonopoulos had attended Court in answer to the witness summons and was in attendance outside the Courtroom. Due to Mr Antonopoulos’ Affidavit being an agreed statement, I would not be calling him as a witness and advised him he could leave which he immediately did.
[2] Affidavit of Edward Thomas Collins, 2 December 2020, [5]-[6].
Mr Lang submitted that in taking this course, the prosecution eschewed any dispute in respect of the contents of the Antonopoulos affidavit, and that by implication, defence counsel took this course as meaning that the assertions within the statement were not in contention.
The appellant did not seek to adduce on appeal any evidence of defence counsel at trial.
The fact that a witness statement is tendered without challenge to any of its contents does not make the contents of the statement immutable and thereby bind the prosecution. The obligation on the prosecution to call all relevant witnesses, including those who do not support the prosecution case, is well understood. If a prosecutor proposes not to call a material witness, it is necessary that they are able to point to ‘identifiable circumstances’ that ‘clearly establish’ that the witness is unreliable.[3] As this Court recently reiterated:[4]
The test to be applied by a prosecutor in determining whether or not to call a witness considered unreliable imposes a high threshold. The prosecutor must be able to point to “identifiable circumstances clearly establishing unreliability”.[5] The witness must be unreliable to the extent that if he or she were called by the prosecution it would likely lead to a miscarriage of justice.
(Footnote in original)
[3]     The Queen v Apostilides (1984) 154 CLR 563 at 576 (The Court).
[4]     R v M, RS (2018) 131 SASR 24 at [66] (Hinton J, Peek and Nicholson JJ agreeing).
[5]     The Queen v Apostilides (1984) 154 CLR 563 at 576 (The Court).
The prosecution was required to lead the evidence of Mr Antonopoulos. It was a matter for the defence to determine the extent to which it would challenge that evidence. It did not do so at all. That was presumably based on a forensic assessment of the contribution that any challenge could have made to the defence case.
The mere failure by defence to require a prosecution witness to be available for cross-examination cannot elevate the status of the evidence in question to immutability. Neither can a statement by the defence that the receipt of the evidence is ‘agreed’.
To take the present case as an example, the main apparent difference between the evidence of Mr Antonopoulos and Mr Robinson was Mr Antonopoulos’s account that Mr Robinson came around to the driver’s side of the taxi and swore at and abused him. On appeal, it was argued that this account raised the possibility that Mr Robinson was the aggressor in the entire exchange. Assuming, for the sake of argument, that this is so (putting to one side the paucity of the balance of Mr Antonopoulos’s evidence as to the matters the subject of the charge), the manner of leading this evidence could not be said to bind the prosecution to its contents.
The prosecution was required to lead the evidence of both Mr Robinson and Mr Antonopoulos. The fact that there may be inconsistencies between the two accounts given in chief does not mean that the prosecution is necessarily bound by the version contained in the evidence that was admitted without challenge.
The prosecution could, of course, have bound itself expressly to a particular version of events by express agreement with defence as to the facts. However, the trial transcript does not suggest that it did so. Indeed, any suggestion that it did so is contradicted by the fact that the prosecution also adduced Mr Robinson’s evidence of his actions when he first got out of his car.
Mr Lang submitted that while the process as recorded on transcript and, for that matter, the account given by the police prosecutor of the statement being agreed, carried ‘an ambiguity’, the effect of the agreement was that ‘the prosecution themselves, by taking that course, eschewed any dispute in respect of the contents of that statement’. He further submitted that defence counsel ‘clearly’ inferred that this meant that the assertions in the statement were not in contention.
I reject that submission. Not only is it inconsistent with the balance of the prosecution case as led, it is clear from defence counsel’s address that the defence drew no such inference. In addressing the evidence of Mr Antonopoulos, counsel said:[6]
In our submission, he’s an independent witness. His statement was taken close to when this event occurred. It was taken in May 2019 as opposed to giving evidence 18 months later. He’s an independent witness and his evidence is consistent with the defendant’s evidence in court today as to never physically touching the male in any way. In our submission, your Honour has no reason to disregard Mr Antonopoulos’ statement. There is no issue as to his reliability and credibility and your Honour cannot simply just put that to one side and in our submission, that, combined with the defendant’s evidence creates reasonable doubt in relation to this matter.
[6] Trial Transcript 63.18-30.
These submissions are not consistent with the case on appeal that the defence implicitly understood the assertions in the Antonopoulos affidavit to be akin to immutable agreed facts. If that were the case, there would be no need for the submission that the magistrate had ‘no reason to disregard Mr Antonopoulos’ statement’ or to submit that there was ‘no issue as to his reliability and credibility’. To be clear, I consider these submissions squarely to be invitations to the magistrate as to the forensic conclusions she should reach, not submissions as to the immutability of the evidence of Mr Antonopoulos.

Further, those submissions appear in the wider context of defence counsel methodically addressing the evidence of each witness and highlighting inconsistencies. In this context, the Antonopoulos affidavit was treated as no different from the evidence of the other witnesses. Counsel submitted that there was ‘quite clearly a factual dispute as to what actually happened at that vehicle’.[7] This was followed by various submissions as to how the magistrate should view the evidence to resolve this factual dispute. In this way, the defence recognised both the contradictions in the evidence as requiring resolution, and the magistrate’s role as the trier of fact to weigh all of the evidence and come to a conclusion.
[7] Trial Transcript 63.32-34.
Ms Cairney, for the respondent, articulated (correctly, in my view) that it was the receipt of the Antonopoulos affidavit that was plainly agreed as between the parties. That is not at all the same thing as an agreement of a fact. The transcript does not disclose any agreement that could be said to place the affidavit beyond scrutiny. Its use was always going to be a matter for the trier of fact when assessing it against the other evidence that was called during the trial. I do not think that the prosecutor’s characterisation of the Antonopoulos affidavit as an ‘agreed statement’ in the affidavit tendered on appeal alters that assessment or even assists in the enquiry.
The magistrate was entitled to make findings inconsistent with the contents of the Antonopoulos affidavit. In Frunks v Police,[8] Doyle J considered the assessment of statutory declarations tendered at trial in the context of the admission of a statement pursuant to s 34KA of the Evidence Act 1929 (SA). His Honour said:[9]
Further, I accept that the Magistrate was entitled to reject as unreliable or untruthful the statements by Noble to the effect that he was the driver. Just because the statutory declarations were admissible under s 34KA of the Evidence Act, and were evidence of the truth of their contents, does not mean the Magistrate was required to accept them as reliable and credible. The Magistrate was entitled, indeed required, to assess the weight to be afforded to that evidence in the context of the evidence in the case as a whole, including that of the prosecution witnesses. In my view, bearing in mind the advantage the Magistrate had in seeing and hearing the various witnesses, I am not satisfied that he was in error in rejecting the reliability or truthfulness of Noble’s statements that he was the driver.
[8] [2016] SASC 120.
[9] Frunks v Police [2016] SASC 120 at [80].
While the Antonopoulos affidavit was not tendered pursuant to s 34KA or any analogous provision, these observations are nonetheless pertinent. It was the role of the magistrate as the trier of fact to assess the competing accounts. The appellant has neither established that the prosecution bound itself to the contents of the Antonopoulos affidavit as agreed facts, nor that the defence had necessarily inferred that this was the position. Ground 1 fails.
Ground 2
The second ground of appeal complains:
2.In the alternative the defendant was deprived of procedural fairness, as a result of the prosecution neither calling the witness as a prosecution witness, nor presenting the witness for cross-examination.
There was no evidence put before me about the attitude of the parties towards the statement other than the affidavit of the police prosecutor and the transcript record of admission of the affidavit. I have rejected the appellant’s submission to the effect that the defence must have proceeded under a misapprehension of the nature of the ‘agreement’ of the affidavit. It was open for the defence to cross‑examine Mr Antonopoulos.
There was no deprivation of procedural fairness to the appellant due to any omission by the prosecution to call Mr Antonopoulos to give oral evidence. To the contrary, whether Mr Antonopoulos was required was a matter for the defence. Ground 2 fails.
Ground 3
The third ground of appeal complains:
3.The learned trial Magistrate erred in directing herself that it was open for her to place greater weight on the witnesses “whose evidence I heard and accept”.
This ground raises a matter of interpretation of the magistrate’s words. Mr Lang’s submission was to the effect that these words indicate that the magistrate rejected the Antonopoulos affidavit, at least in part, because the evidence was not tested.
The impugned passage of the magistrate’s judgment, in context, reads as follows:[10]
Mr Antonopoulos did not see Mr Lobosco or Mr Robinson physically touch each other. As Mr Antonopoulos’ evidence was agreed, I did not have the benefit of observing him and assessing his credit and demeanour. I note that he was seated in the driver’s seat of his taxi which was stationary behind the Robinson’s vehicle. He did not have the best vantage point to view what occurred at the front passenger side of the Robinson’s vehicle. I further note that it was 10:30pm and dark. He did not have the opportunity to expand on his account of the incident. Mr Antonopoulos’ evidence that he did not see Mr Lobosco or Mr Robinson physically touch each other does not cause me to doubt the account of Mr Robinson and Mrs Robinson in this regard. I place greater weight on the witnesses whose evidence I heard and accept. Mrs Robinson had an unobstructed and closer view of the interaction between Mr Lobosco and Mr Robinson.
[10] Magistrate’s Reasons for Judgment, 10 August 2020 at [49].
Ms Cairney submitted that when viewed in context, the statement complained of concerned the assessment of the primary dispute in the trial, with reference to the respective weight that should be placed on each witness, given the strength of their evidence.
I agree with this characterisation. The magistrate’s choice of words, in context, reveal that the placement of greater weight upon the witnesses that were ‘heard’ was not because those witnesses were heard, but for the reasons outlined in the surrounding sentences. Mr Antonopoulos did not have the best vantage point, being seated some distance from the exchange and on the opposite side of the vehicle, in circumstances where it was dark. Mrs Robinson, on the other hand, had an unobstructed and closer view of the interaction. Those observations provide the reason for the placement of greater weight upon the witnesses that were heard in court. Further, as Ms Cairney pointed out, Mr Robinson’s account was entirely consistent with the objective medical evidence of his physical injuries, and in particular his broken arm. Ground 3 fails.
Ground 4
Ground 4 complains:
4.In the alternative, the learned Magistrate erred in failing to warn counsel as to her view on the status of the agreed statement.
The appellant submitted, consistently with his main argument, that there was a lack of clarity from the outset as to the meaning of the agreement over the Antonopoulos affidavit. He submitted that there was no interaction between counsel and the bench as to any infirmity, or any potential disadvantage to the defence, by adopting the process of ‘agreeing’ the affidavit.
The initial difficulty with this submission is that the transcript does not record the discussion about the agreed facts. Neither has any evidence adduced on appeal improved the position.
In any event, I have already concluded that the defence proceeded in a manner consistent with the understanding that the affidavit was always going to be subject to scrutiny by the magistrate. In light of that, and given my interpretation of the magistrate’s treatment of the Antonopoulos affidavit, it was not necessary for the magistrate to warn the parties as to her view of its status. Ground 4 fails.
Conclusion
Having previously granted an extension of time to file the Notice of Appeal, I dismiss the appeal.