MAustralian National UniversityEL v Police - [2010] SASC 169

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MANUEL v POLICE
[2010] SASC 169
Judgment of The Honourable Justice Kourakis
4 June 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - OPINION OF TRIAL JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED
Appellant, a registered nurse, convicted of five counts of assaulting elderly residents of nursing home where she worked – prosecution case based on testimony of three residential care workers employed by nursing home – appellant also gave evidence – outcome of prosecution depended on assessment of credit of carers and appellant – Magistrate’s first step was to conclude that appellant’s testimony unreliable and therefore unacceptable wherever it conflicted with any part of carers’ testimonies – that step essential to Magistrate’s reasoning to ultimate conclusion that offences proved beyond reasonable doubt – appellant appeals convictions – whether reasons given by Magistrate for adverse assessment of appellant’s credit misapprehended the evidence and not supported by it – whether, notwithstanding errors, on the evidence offences are proved beyond reasonable doubt – whether matter should be remitted for retrial or whether information should be dismissed.
Held: Appeal allowed – Magistrate’s reasons for adversely assessing appellant’s credit misapprehended the evidence and not supported by it – not possible for appeal court to find offences proved beyond reasonable doubt – matter remitted for retrial because carers’ evidence gives coherent account of offences charged and a Magistrate who hears their testimony may be able to resolve any inconsistencies in their evidence.
Magistrates Court Act 1991 S 42, referred to.

MANUEL v POLICE
[2010] SASC 169
Magistrates Appeal: Criminal

KOURAKIS J: The appellant was convicted of five counts of assaulting elderly residents of a nursing home in which she was employed as a registered nurse. The offences were committed against three residents.
The prosecution evidence comprised almost entirely the testimony of three residential care workers (the carers) who were also employed by the nursing home. The appellant was, at the time of the offences, their supervisor. The carers had made no complaint about the appellant’s conduct before a manager of the nursing home commenced to investigate the incidents as a result of information received from a person who was not a witness in the proceedings. The appellant gave evidence. She denied committing the offences and denied any improper conduct in the performance of her work. The outcome of the prosecution therefore necessarily depended on the assessment of the credit of the carers called by the prosecution on the one hand and the appellant on the other. In particular the issue was whether, having regard to the creditworthiness of the carers, the prosecution had proved the commission of the offences beyond reasonable doubt.
After undertaking an analysis of the evidence, the Magistrate found that the carers had truthfully recounted the incidents to which they testified. However, as the very first step in that analysis the Magistrate dealt with the credibility of the appellant. The Magistrate concluded that step of his reasoning by finding that the appellant’s testimony was so totally unreliable that he would not accept any part of it where it conflicted with the evidence of any of the prosecution witnesses. It is plain from the structure of the Magistrate’s reasons that his adverse and dismissive assessment of the appellant’s testimony was an essential step in reasoning to his ultimate conclusion that the evidence of the prosecution witnesses was creditworthy and proved the offences beyond reasonable doubt.
The appellant contends that the reasons given by the Magistrate for his adverse assessment of the appellant’s credit misapprehended the evidence and are not supported by it. The particular credit findings which are challenged are:
·That in her evidence the appellant had dishonestly portrayed herself as a hard working person who put in more than she was required to do.
·That the appellant’s testimony exaggerated to the point of falsehood the poor work performance of the carers who had testified against her.
·That the appellant had falsely claimed that one of the carers had sexually harassed her.
·That the appellant’s evidence that she made an effort to keep an eye on a particularly difficult resident while completing paperwork was false.
The appellant’s contentions should be accepted. I shall explain my reasons for so concluding by reference to the evidence below.
The errors of fact to which I have referred were material steps in the Magistrate’s reasons. The question which therefore arises is whether, notwithstanding the errors, the convictions should be confirmed because I can be satisfied on the evidence before me that the offences are proved beyond reasonable doubt. The adjudication of this matter essentially depends on the resolution of conflicting testimony; there are few objective circumstances and accepted facts to guide my assessment. It will rarely be possible for an appeal court in a case like this to find that the offences are proved beyond reasonable doubt where the Magistrate’s credit findings are vitiated by error.[1] I am not so satisfied in this case. I will deal with the evidence further below.
[1] Cf Mak v Police [2008] SASC 342; Barry v Police [2009] SASC 295.
The next question which arises is whether the matter should be remitted to the Magistrates Court for retrial. That question depends largely on my assessment of the strength of the prosecution evidence. It is accepted by the appellant that she has a case to answer. However, if I were satisfied on my reading of the transcript that the proper verdict was not guilty, or even that the prospects of a conviction are so low that the appellant should not be further vexed by another trial, I should dismiss the information now. On this issue the appellant also relies on evidential material that was not adduced in evidence at trial. Some of that material reveals significant inconsistencies between earlier statements made by one of the carers and her evidence at trial. Other material suggests that the carer whom the appellant accused of sexual harassment had also harassed other female carers at about the same time. Finally, there is also material which showed that the carers had a motive to at least embellish their evidence against the appellant in order to keep their employment. The appellant says that the frailties of the prosecution case are such that the information should be dismissed.
I have decided that I should remit the matter to the Magistrates Court for retrial. The appellant accepts that she has a case to answer. On the face of it the evidence of the carers gives a coherent account of the offences charged. Even though I am unable to resolve the inconsistencies in the evidence of the carers in favour of the prosecution on the transcript, a Magistrate who hears their testimony may well be able to do so. I shall elaborate on my reasons for so deciding below.
The charges
The appellant was convicted on two counts of assaulting the resident Mrs F between January and February 2008 by striking her around the head and shoulder with a cushion or pillow. The appellant was convicted on a further count of assaulting the resident Mr C by bringing him to the ground and then dragging him along a carpeted floor. Although the Magistrate recorded that conviction with respect to an offence committed in “about March 2008”, it appears from his reasons that the offence most probably occurred in early April. Finally, the appellant was convicted on two counts of assaulting the resident Mrs H by using excessive force, on one occasion with her foot, to roll Mrs H from a commode back on to her bed.
The evidence
As I earlier observed, the prosecution case was essentially based on the testimony of the three carers. On weekdays the carers often worked the same shifts as the appellant. One of the three carers, SD, was an enrolled nurse. She worked both weekend and weekday shifts. She testified that on an occasion in January 2008 she saw the appellant hit Mrs F around the right side of her head with a cushion. Just before the assault Mrs F, who had been sleeping in a recliner, had awoken and started yelling. SD testified that when Mrs F was hit with the cushion Mrs F shook her head and stopped yelling. It was on that evidence of SD that the Magistrate convicted the appellant on the first count of assault against Mrs F.
SD testified that she saw a similar incident about a week later. According to SD, the appellant said to Mrs F as she assaulted her “the machine is going to get you”. The prosecution alleged that the incident described by SD was the offence charged in the second count of assault with respect to Mrs F. However, in cross examination SD acknowledged that she had told a manager of the nursing home who had interviewed her in August 2008 that the second occasion she had witnessed had occurred just five minutes after the first. The Magistrate found that he could not be satisfied whether the second of the incidents witnessed by SD occurred five minutes or one week after the first. As will be seen, however, the Magistrate convicted the appellant of the second count of assault against Mrs F relying on the evidence of another witness, DG.
SD also gave evidence with respect to the alleged assault on Mr C. Mr C was a difficult patient to manage because he would wander about the nursing home and behave both offensively and violently. SD testified that on a day in March 2008 she followed Mr C into a room adjacent to the lounge area intending to restrain him. Before SD reached Mr C the appellant approached him from behind and placed her foot or knee behind Mr C’s knee and pulled him back. Mr C collapsed to the floor. The appellant referred to the manoeuvre she had just executed as a “controlled assist to the floor”. SD then called out to the other residential care worker DG to help put Mr C into a chair. The appellant dragged Mr C across the floor on his back for about four metres. SD and DG then helped Mr C into a chair. A little later, when an incontinence pad was changed, SD noticed a carpet burn on one of Mr C’s buttocks. SD testified that she had seen the appellant use the “controlled assist manoeuvre” on about 10-15 times before the occasion in March 2008 on which she noticed the carpet burn.
Finally, SD gave evidence of an occasion in June 2008 on which the elderly patient Mrs H was being transferred from a commode back on to her bed. At a point when Mrs H had just one of her knees on the bed the appellant put her foot on Mrs H’s bottom and pushed her into the bed. SD gave evidence that Mrs H did not suffer any apparent injury as a result of the assault.
In cross-examination SD agreed that she had not mentioned that the appellant had dragged Mr C along the ground when she gave a statement to police on 12 August 2008. She also agreed that she did not, in that statement, mention that the appellant had said to Mrs F that “the machine is going to get you”. SD denied that the appellant had ever counselled her in relation to taking smoking breaks.
RR was a male residential care worker who worked at the nursing home at the time of the alleged offences. RR testified about an incident involving Mr C which occurred in about June 2008. He said that when he saw the appellant dragging Mr C along the carpet he intervened by lifting up Mr C and taking him to his room. RR later saw Mr C on several occasions during that shift but did not see the appellant with him. In cross-examination RR agreed that when he was first interviewed by a manager of the nursing home on 13 August 2008 he did not report any such incident; RR only made the allegation when he was spoken to by the manager for a second time on that day. RR also agreed that he had told the appellant some stories which he claimed were true but which, objectively, seem very improbable. RR denied that he had sexually harassed the appellant. He also denied that the appellant had spoken to him about being lazy and taking lengthy smoking breaks.
DG was the third of the carers who worked at the nursing home at the time of the alleged offences. She testified that on a day in February 2008 she saw Mrs F seated in a Princess Chair in the day room and heard her calling out. DG then saw the appellant flick a pillow with both hands around Mrs F’s shoulder and head region. She heard the appellant say “the machine is going to get you”. When Mrs F continued to call out the appellant repeated her threat about the machine. It was on this evidence that the Magistrate convicted the appellant on the second count of assaulting Mrs F.
DG described an incident, which she placed in March 2008, involving Mr C. DG testified that she saw the appellant bring Mr C to the ground and drag him along the floor. DG said that Mr C’s pants and incontinence pad came down when he was dragged. She testified that she later observed a friction burn mark on his buttocks.
DG also gave evidence of an incident which occurred when both she and the appellant went to Mrs H’s room because her bed alarm had gone off. They found Mrs H turned sideways towards the commode next to her bed. DG testified that the appellant forcefully shoved Mrs H’s shoulders causing her to fall back onto the bed.
In cross-examination DG agreed that she had told a manager of the nursing home who spoke to her on 13 August 2008 that she had never seen the appellant handle a patient badly. According to DG, she informed the manager of the appellant’s conduct about three to four days later by email. DG also admitted that she had received a letter putting her on a final warning in terms of her employment. DG claimed that she was not at that time concerned about continuing employment with the nursing home because she had already accepted an alternative offer. DG denied that the appellant had counselled her in relation to taking smoking breaks.
The evidence of SD and DG about the friction burn suffered by Mr C was supported by the evidence of GR. GR was a registered nurse who was employed at the nursing home for four and a half years until July 2008. GR testified that she observed an abrasion on Mr C’s sacral area on 9 April 2008. GR’s attention was drawn to the wound by a residential care worker because a dressing that had been placed on it had come off. GR then initiated a wound management plan for that injury. GR thought that the wound was about 24 hours old.
The appellant gave evidence. She graduated as a registered nurse in 1999. She had worked at the nursing home from about 2005. The appellant denied hitting Mrs F with a pillow and making any comment about a machine. The appellant denied ever using excessive force to place Mrs H on to her bed and bringing Mr C to the floor. She denied using the expression “controlled assist”.
Further evidence
On appeal the appellant through an affidavit of her solicitor tendered further evidence. It was contended that the convictions should be set aside and the information dismissed because of the frailties in the prosecution evidence adduced before the Magistrate together with the further evidence.
It appears from the affidavit of the appellant’s solicitor that the further evidence must have always been in her possession but that she failed to appreciate its significance. Some, but not all, of it may have been in the possession of her counsel. The further evidence was not tendered at trial and, apart from the warning letter to DG to which I referred earlier, the material was not cross-examined on. I shall refer to the further evidence in greater detail below. Broadly, it comprised evidence of prior inconsistent statements, material from which it might be inferred that the carers had a motive to fabricate their evidence and other material going to their credit.
The appeal grounds
The appellant pursues five grounds of appeal. The appellant contends that the convictions should be set aside because they are unreasonable and against the weight of the evidence. In a related ground, the appellant complains that the Magistrate erred in failing to have sufficient regard to the infirmities and dangers of the prosecution evidence. She also complains that the Magistrate both failed to exclude evidence of offending other than the charged assaults and that he misdirected himself on that evidence after it was received. The primary ground argued on the appeal is that the Magistrate erred in his approach to the credibility of the appellant. The appellant also relies on the cumulative effect of all five grounds. As I have concluded that the convictions should be set aside because of the Magistrate’s erroneous approach to the assessment of the appellant’s credit, the only other ground that I need consider is whether the convictions were against the weight of the evidence. If I were of that view, the proper order would be to allow the appeal and dismiss the information and no question of remittal would arise.
Sufficiency of the evidence
In my view the convictions are not against the weight of the evidence. There is a reasonably strong coherence in the accounts given by the carers. Their accounts strike me as quite plausible; their description of events and the conduct of those involved are consistent with what I would expect based on my experience of human behaviour.
There are fairly obvious reasons why the prosecution witnesses may not have reported the incidents when they first observed them. The witnesses themselves gave some such reasons, including a concern about their working relationship with the appellant and their future employment. It may even be the case that those witnesses themselves harboured inappropriate attitudes about how the difficult residents with whose care they were entrusted should be managed. There are also fairly obvious reasons why they might not have disclosed all that they knew about the appellant’s conduct when they were first interviewed. They may have been concerned about the consequences for the appellant, who was their work colleague. They may have been worried about their own employment and career for not intervening or reporting the matters earlier. They may have felt guilt themselves.
On the other hand, the inconsistencies may be the product of fabrication. However, the motives for fabrication put to each of the carers during cross-examination do not appear to be all that strong. In my view in the following passage the Magistrate correctly observes that, by ultimately disclosing the information, the witnesses placed themselves at some risk:
The evidence given can only be considered on the basis they have made false allegations about the defendant, if it is not true. They would not have subjected themselves to public scrutiny if they had remained silent about their omission to report these incidents. This is not a case where assaults had obviously occurred, with the question being who was responsible. If they had remained silent, there would have been no charges laid and no trial, and therefore no public condemnation of the failure to perform their duties. In these circumstances, it would have been logically in the best interests of the witnesses [SD], [DG] and [RR] to have maintained their silence about what they had seen, even if it was true.[2]
[2] Judgment of Mr Snopek SM, 11 December 2009, at [136].

It is convenient now to also deal with the further evidence on which the appellant relies to impugn the soundness of her conviction. In my view the power of the Court to receive evidence pursuant to s 42 of the Magistrates Court Act 1991 is wide. Even though s 42 uses the words “fresh evidence”, in my view that term should be understood in its context as further evidence. The restrictive approach taken to the receipt of fresh evidence on motions for new trials should not be applied to the statutory power conferred by s 42 of the Magistrates Court Act 1991.[3] In the exercise of the discretion given by that provision, this Court must balance the interests of the public in the finality of litigation against the interests of justice in the particular case. The diligence, or lack thereof, of the parties and their legal representatives are relevant considerations. They are, however, not determinative. Because it is my view that the material, even if it were to be received, does not render the convictions unsafe, I am prepared to deal with this issue on the basis that the further evidence should be admitted in the exercise of my discretion pursuant to s 42 of the Magistrates Court Act 1991 without finally deciding that issue.
[3] Woolongong Corporation v Cowan (1955) 93 CLR 435 at 444 per Dixon CJ; Orchard v Orchard (1972) 3 SASR 89 at 98-100 per Bray CJ; Mickelberg v The Queen (1989) 167 CLR 259; CDJ v VAJ (1998) 197 CLR 172 at 184-5 [51] per Gaudron J, at 195-200 [89]-[104] per McHugh, Gummow and Callinan JJ.
The further evidence includes the warning letter sent by the nursing home, in substantially the same terms, to the three witnesses SD, DG and RR. The carers were admonished but told that their employment would not be terminated if they complied with certain conditions. The letters provided in part:
[SD], [DG], [RR] you need to understand that your actions, or lack of, have brought you close to having your employment terminated without notice. However, [the nursing home] has taken into consideration the mitigating explanations that you have presented and your co-operation from this point forwards with the investigating authorities. On the understanding that you have shown true remorse in this situation and have give [sic] [the nursing home] the undertaking that you will comply with all the directives in this letter the disciplinary action issued to you on this occasion will be a final warning. (emphasis added)
The letters are evidential material on which the credit of the carers can be impugned by cross-examination and by adducing evidence that the letters were sent because they establish a motive on their part to give evidence against the appellant.
The appellant also tendered further evidence which showed that complaints had been made against RR for sexually harassing other workers in the same period in which the appellant alleged that he had harassed her. At the very best RR could have been cross-examined on that material to test his credit generally and the credibility of his denial of harassing the appellant in particular.
In addition, the further evidence on which the appellant relies comprises other prior inconsistent statements made by SD. The most significant of those statements concerns SD’s observations of the appellant’s handling of Mr C. In a statement made by SD in the course of the nursing home’s investigation, SD claimed that she had seen the appellant bring Mr C to the floor on only one occasion, but that she had heard others relate similar incidents. In stark contrast, SD testified at trial that she had herself seen the appellant use that manoeuvre on many occasions. SD could properly have been cross-examined on that statement and the statement could be tendered on the issue of her credit if she did not distinctly admit it.
The carers RR and SD have not had an opportunity to respond to the further evidence. Although the material is significant and raises further questions about their credibility, I cannot make that assessment on the papers. The assessment of the credibility of their responses can only be properly determined on a hearing in which they are tested by cross-examination and their oral testimony evaluated.
I do not find the motives for fabrication to be of sufficient weight to warrant the dismissal of the information on the transcript of the evidence alone without such an evaluation of their testimony. If the carers were hostile to the appellant because of the way in which she supervised them, it is surprising that they did not accuse her when they were first interviewed. Nor do the warning letters, alone or in conjunction with other matters, call for a dismissal without assessing the carers’ oral testimony, because by the time the letters were sent the allegations had already been made.
For these reasons, I am not persuaded that the proper verdict on each of the charges, on both the trial evidence and the further evidence, is not guilty. I would therefore dismiss the appeal on this ground.
Errors in the assessment of the appellant’s credit
Plainly enough I am not in a position to assess the demeanour of the witnesses who testified before the Magistrate. The Magistrate’s assessment of the appellant’s poor demeanour must, at least in the circumstances of this case, be accepted. I also accept also that the Magistrate’s reasons for arriving at his adverse assessment of the appellant’s credit must be considered in the light of his conclusion about her demeanour.
As I earlier observed, the Magistrate commenced his analysis of the evidence with a consideration of the credibility of the appellant. He said:
[110]I will deal with the defendant’s evidence first. I found the defendant to be an unimpressive witness and do not believe her denials as to the incidents forming the basis of the charges have the ring of truth about them. The defendant’s demeanour was poor and she could not resist denigrating the character of the important prosecution witnesses at every opportunity. In contrast she took every opportunity to create the image that she was a hard-working person who loved her job and was prepared to put in extra to her employer and residents.
[111]A very obvious example was the impression she created by always attending work at least an hour before the start of her shift. She would help the evening shift, restock and set up for the commencement of her night shift. Then in cross-examination it comes out that the defendant did not have a driver’s licence. If she did not go to work with her partner, she would either have to travel by bus late at night, catch a taxi or try to organise a lift. The defendant did not go early for some altruistic purpose, but because of practicalities through not having a licence.[4]
[4] Judgment of Mr Snopek SM, 11 December 2009, at [110]-[111].
It is, in my view, necessarily implicit in the last sentence of [110] of his reasons that the Magistrate found that the appellant had created a false image that she was a hard working person who loved her job. The Magistrate appears to have found that the image was a false one because of the evidence which emerged in the appellant’s cross-examination that it suited her travel arrangements to be dropped off at work early by her partner.
It must first be observed that the evidence of the appellant’s attitude to her work was given primarily by the prosecution witnesses. The prosecution witnesses testified that the appellant arrived for her shifts about an hour beforehand and that she spent the time preparing for the shift ahead. I emphasise that the evidence given by the prosecution witnesses was, not only that the appellant attended early, but that she also commenced preparing for her shift before she was required to. She did not, for example, arrive early but then read a book or newspaper whilst having a coffee as she was well entitled to do. The registered nurse RR, for example, gave evidence that the handover would commence before time and that the appellant appeared to be busy organising her shift. RR agreed that the appellant had excellent clinical skills and worked well with her colleagues. RR did testify that the appellant always complained about her work but she was the only prosecution witness who did so. The witness SD said that the appellant was devoted to her work and worked hard. SD agreed that the appellant would arrive early to organise the shift ahead. In her examination-in-chief, the appellant did no more than testify that she started work about an hour early by organising the shift ahead. That fact was never disputed.
The appellant may be considered in a general sense to bear some responsibility for the decision of her counsel to elicit the evidence of her early starts from the prosecution witnesses without mentioning that she was dropped off by her boyfriend. However, that matter in my view is of little importance in the assessment of the credibility of the evidence actually given by the appellant. Moreover, the prosecution witnesses may not have been in a position to give evidence about the appellant’s travel arrangements of their direct knowledge. The appellant herself was not asked about her travel arrangements by her counsel in evidence-in-chief. She can hardly be criticised for not volunteering it. When the appellant was cross-examined about these travel arrangements, she was not at all evasive and immediately acknowledged that it fitted in with her partner’s shift work for her to be dropped off early.
Be that as it may, the evidence of the appellant’s travel arrangements did not detract from the fact that after arriving at the nursing home she applied herself with diligence to her work even before her shift commenced. That fact was never disputed. In my view, there was no satisfactory evidential basis on which the Magistrate could find that the appellant had “created” a false image that she worked hard. It was actually the fact that she worked hard. Nor should her credit have been so severely judged by the course the evidence took when she was not shown to have been the author of the forensic strategy mapped by her counsel.
The appellant herself never claimed that she “loved” her job. Again, the fact that she complained to RR is hardly a sufficient reason to take those complaints out of the context of all of the evidence and reach the damning conclusion expressed by the Magistrate in [110] of his reasons.
The Magistrate gave as a further reason for rejecting the appellant’s evidence the following:
[12]After hearing the defendant’s examination-in-chief, given her work appraisals of [SD], [DG] and [RR], I was left wondering how work duties were ever done. Based on the defendant’s summary of each worker, if what she said was true of their work performance, then I cannot believe she did not keep counselling records. The defendant’s explanation is that she did not want to be an ogre. I do not accept that. I am satisfied beyond reasonable doubt there were not counselling reports or records, because the work practices of the prosecution witnesses was [sic] acceptable. There were no records, because the defendant would have to justify her complaint at any enquiry by [MB].[5] (emphasis added)
[5] Judgment of Mr Snopek SM, 11 December 2009, at [112].
It is implicit in the emphasised part of that passage that the Magistrate found the appellant’s testimony about the carers’ work performance inherently incredible.
The criticism made by the appellant of the work performance of the carers was that their smoking breaks were frequently too long. The appellant testified that she spoke to SD and the other carers about their smoking breaks. The appellant also asked that the carers give her some notice before taking the breaks. According to the appellant, SD wished to take as many smoking breaks on weekday shifts as she did during the weekend.
The appellant’s evidence could not fairly be understood to allege that the carers did hardly any work. The criticism which the appellant made was about a relatively minor workplace practice. Plainly enough the nursing home still operated and work was done on the weekend notwithstanding the more frequent smoking breaks taken by staff. The Magistrate’s comment that he was left “wondering how work duties were ever done” implies that he found the appellant’s evidence about the work performance of her colleagues inherently incredible. In my view, the appellant’s testimony on this subject did not warrant that assessment.
The Magistrate then proceeded from that very adverse assessment, made on the face of the appellant’s testimony, to resolve against the appellant the evidential dispute between her and the carers about the whether she had counselled them with regards to smoking breaks. The forensic importance of this question was that the counselling may have been a motive for the carers to fabricate the allegation made against the appellant. Having wrongly dismissed the appellant’s account, it is not surprising that the Magistrate then accepted the carers’ evidence which denied the existence of any such motive on their parts.
The Magistrate also found that the appellant had lied about an aspect of her work practice. The appellant had testified that on occasion she completed her paperwork in the lounge room so that she could keep an eye on Mr C while he was restrained in a chair in that room. The Magistrate said:
[115]From the evidence I have heard and that has been tendered, there is no doubt that [Mr C] was a violent and difficult patient to handle, no doubt due to his medical condition. The defendant said that he tried to grab her on a number of occasions. Her evidence that she would take work out to the lounge room if other staff could not supervise him, is exaggerated and untruthful, but is an example of her exaggeration in attempting to portray herself as a caring, compassionate and calm person.[6] (emphasis added)
[6] Judgment of Mr Snopek SM, 11 December 2009, at [115].
I read the emphasised phrase as meaning that the appellant’s evidence on this aspect was exaggerated to the point of being untruthful and that the appellant did not adopt that practice.
There was no evidence which contradicted the appellant’s evidence that she would, on occasion, take her work into the lounge room. Plainly enough the Magistrate rejected, in the sense of giving no weight to, the appellant’s evidence on this aspect of her work practise. He was entitled to do so. However, the rejection of her evidence cannot be transferred into evidence of its opposite. In the absence of evidence contradicting the appellant’s account that she occasionally worked in the lounge room in order to watch over Mr C, no positive finding could be made that she did not take her work into the lounge room. That finding is therefore not supported by the evidence and cannot stand.
The Magistrate also dismissed the appellant as unworthy of credit because of his disbelief of her account of sexual harassment by RR. The Magistrate said:
[113]I also do not accept that the defendant would have accepted persistent laziness and rudeness from her staff. Her evidence was she would verbally raise issues with [MB]. I do not believe her evidence, that she would not have complained about physical abuse from [RR], especially as [MB] considered him a creep according to the defendant’s evidence. It is also inconsistent with her report of physical abuse by [Mr C], a man with Alzheimer’s disease, and not of a co-worker.[7] (emphasis added)
[7] Judgment of Mr Snopek SM, 11 December 2009, at [113].
It is possibly implicit in the emphasised sentence in that paragraph that the Magistrate found that RR did not sexually harass the appellant and that her evidence that he had, and the reason that she gave for not reporting him, was false. Alternatively, the Magistrate may have meant only that, whether or not there had been any such harassment, he found the appellant’s assertion that she would not report such an event inherently incredible. Both possible findings are based on reasoning that the appellant’s failure to report RR is inconsistent with her preparedness to complain about Mr C. As counsel for the respondent accepted on the appeal, the circumstances of each case are very different. There are obvious reasons why a woman in the appellant’s position would hesitate before reporting a co-worker for sexual harassment but would be prepared to report the difficulties that she, and other carers, experienced in dealing with a patient like Mr C. This reason for rejecting the appellant’s evidence is also unsound.
I shall refer to one other matter. The Magistrate in [117] of his reasons appears to have found that the witness GR had denied the appellant’s claim that they had once discussed a complaint made by SD that a resident had not been adequately cared for. I do not understand the evidence in that way. GR did not deny that there was a conversation involving himself, the appellant and SD, in which SD made a complaint about the treatment of a resident. GR testified only that he could not recall such an incident. GR did emphatically deny the possibility that the patient mentioned by SD had ever been left unattended, but her evidence did not go beyond saying that she did not recall that conversation.
There were other aspects of the evidence on which the Magistrate relied to make his adverse assessment of the appellant’s evidence. I need not refer to all of them. The matters to which I have referred were plainly very important steps in the Magistrate’s reasons. They are of sufficient significance to vitiate the Magistrate’s assessment of the appellant’s credit. I accept that there were other matters on which the Magistrate relied which have a sounder basis. However, I cannot say, on a reading of the transcript alone, that those matters are sufficient to support his decision to totally reject the appellant’s evidence and his conclusion that the prosecution had proved the offences beyond reasonable doubt.
Remittal?
The inconsistencies on which the appellant relied at trial and the further inconsistencies revealed by other material on which the appellant would rely on a retrial may be, as the appellant alleges, the result of fabrication or exaggeration. On the other, hand the inconsistencies may be explicable on the basis that the witnesses were initially reluctant to disclose the full extent of their own direct knowledge of the appellant’s offending because they feared the consequences of the criticism they would attract for their acquiescence in and failure to report the appellant’s conduct earlier. I cannot decide where the truth lies and which is the better explanation for the inconsistencies on a reading of the transcript and the other material alone.
Nor can I assess whether the warning letters sent by the nursing home leave a doubt over the carers’ testimony without the benefit of seeing and hearing them give that evidence in the witness box. However, I am satisfied that, notwithstanding the inconsistencies and possible motives for fabrication, there are sufficient prospects of conviction on a retrial to warrant the remittal of the matter.
I acknowledge the financial and personal burden such an order places on the appellant. However, the public interest in the prosecution and judicial determination on the merits of these charges weighs strongly in favour of a retrial. Each of the victims in the matter suffered from dementia and, by reason of their mental condition and age, were extremely vulnerable. In increasing numbers, members of our community will find themselves in similar positions. It is of great public importance that substantial and plausible allegations of mistreatment of the frail and elderly are properly determined on their merits. For that reason, I do not exercise my discretion to dismiss the information because of the personal difficulties a retrial will cause the appellant.
Conclusion

I allow the appeal and set aside the appellant’s convictions recorded in the Magistrates Court. I remit the matter to the Magistrates Court for a retrial.