McKenzie v Police - [2015] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCKENZIE v POLICE
[2015] SASC 78
Judgment of The Honourable Justice Nicholson
20 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
Appeal against conviction. On 13 March 2015, following a one day trial in the Christies Beach Magistrates Court, the appellant was convicted of the offence of basic assault causing harm, contrary to section 20(4) of the Criminal Law Consolidation Act 1935. The charged offence resulted from an incident that occurred during a game of Australian Rules Football. The appellant was alleged to have struck his direct opponent with a closed fist to the face away from the play, resulting in the victim sustaining a broken jaw.
Four fundamental contentions were relied on: the prosecution case was not fully put to the appellant during cross-examination; the Magistrate failed to direct himself as to the law underpinning a charge of assault under section 20(4); the Magistrate failed to properly weigh and evaluate the oral evidence submitted at trial; and the Magistrate failed to provide adequate reasons supporting his finding of guilt beyond reasonable doubt.
Held: Appeal allowed on the basis of the fourth contention. The Magistrate’s reasons as to the burden of proof and its application were not consistent with a finding of guilt beyond reasonable doubt. The conviction is set aside and the matter remitted to the Magistrates Court for re-trial before a different Magistrate.
Criminal Law Consolidation Act 1935 (SA) s20; Evidence Act 1929 s34P, referred to.
Police v McKenzie [2015] SAMC 20; Browne v Dunn (1893) 6 R 67; Bryant v Police [2003] SASC 260; Baird v Police SASC, unreported, Judgment S6325, 11 August 1997, BC 9704130; Giumelli v Johnston SASC, unreported, Judgement 1880, 2 October 1989; Watherstone v Woolven (1987) 139 LSJS 366; Martin v The Department of Transport, Energy and Infrastructure [2010] SASC 141; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Liberato v R [1985] HCA 66, (1985) 159 CLR 507; Abnett v Korber SASC, unreported, Judgment 9363, 2 September 1986, considered.

MCKENZIE v POLICE
[2015] SASC 78
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This is an appeal against conviction. The appellant was charged, by way of information and summons dated 12 March 2014, with the offence of basic assault causing harm contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA). The charge arose out of an incident that occurred during a game of Australian Rules Football between the Edwardstown Football Club and the Happy Valley Football Club. The appellant, representing Happy Valley, is alleged to have deliberately punched his direct opponent, the complainant, with a closed fist to the face away from the play in the early stages of the game. The complainant fell to the ground. He suffered a broken jaw and required surgery. The appellant, at all times, has maintained that he did not punch the complainant but attempted a blocking movement with his arm, within the rules, but which accidentally caught the complainant across the face.
On 11 February 2015, the appellant entered a plea of not guilty in the Christies Beach Magistrates Court and a one day trial ensued. Various witnesses were called by both parties. On 13 March 2015, the Magistrate delivered his reasons for finding the appellant guilty of the offence as charged. The sentencing of the appellant has been stood over awaiting the outcome of this appeal.
The notice of appeal was filed on 27 March 2015. However, an amended notice of appeal was provided to the Court and to the respondent two days prior to the hearing of the appeal which took place on 6 May 2015. Permission to file the amended notice of appeal was not opposed and was granted. The amended notice relies on various overlapping grounds which can be grouped so as to give rise to four fundamental contentions. The appeal should be allowed and a new trial ordered because I am not persuaded that the Magistrate necessarily applied the criminal burden of proof (the fourth contention). As such, I will deal only briefly with the appellant’s other contentions.
Factual background
The football game was a semi-final match in the Southern Football League and took place on the afternoon of 7 September 2013 at Bice Oval, Christies Beach. At the commencement of the game the appellant and the complainant were matched up, that is, marking one another with the complainant playing in the position of half-forward flank and the appellant in the corresponding position of half-back flank.
The eyewitness accounts given at trial as to the precise manner by which the complainant sustained his injury differed in critical respects. However, the following is common ground. At approximately the 10 to 15 minute mark of the first quarter, Happy Valley registered a behind.[1] Edwardstown’s resultant kick-in from its goal square took the play to about the 50 metre arc of the end it was defending. As the possession of the ball was being contested by a congested group of players near the boundary, the appellant and the complainant were jogging, at slow pace and in very close proximity to one another, through the middle of the ground. At a location approximately 40 metres away from the play, the complainant was struck to the left side of his face by the appellant and fell to the ground. He was awarded a free kick and, after taking the free kick, was assisted from the ground.[2]
[1] In Australian Rules Football points can be scored by kicking a goal between the defending team’s central posts (six points) or kicking to the side of one of the central posts but between that post and another, outer, post (one point). The latter is referred to as a “behind” or, affectionately, by devotees of other football codes, as a point for trying.
[2] No match official, including the umpire, gave evidence and there was no evidence before the Magistrate concerning why the free kick was awarded.
The complainant was taken to the Emergency Department of the Flinders Medical Centre for treatment. Scans revealed two fractures to his lower mandible and a partly erupted molar tooth on his lower left side in line with the posterior fracture. The latter was thought to be consistent with having been caused by the injury to his jaw. The following day the complainant had an operation in which two plates and screws were inserted into the fracture sites of his lower mandible. The molar tooth lying in the fracture line was extracted. The complainant spent two nights in hospital. He continues to experience pain and discomfort as a result of the injury, particularly when eating.
The nature of the injuries suffered suggest that a forceful blow was most likely involved, particularly given that the players were only jogging. However, there was no expert evidence before the Magistrate on the question of whether such injuries were more or less likely to result from a closed fist punch to the head as opposed to a blocking motion across the upper chest which accidentally slid upwards to the head. As a consequence, the Magistrate was reliant on the competing eye witness accounts of how the blow was struck.
The appellant was charged, in accordance with the rules of the competition, with the offence of “striking”. A (football) tribunal hearing was convened on 17 September 2014. The appellant pleaded not guilty to the charge. However, the charge was found to have been made out and the appellant was suspended for a number of matches. The Magistrate, quite correctly, directed himself to ignore these events. However, the complainant reported the incident to the South Australian police which resulted in these proceedings.
The evidence led at trial
The prosecution adduced evidence from the complainant and from Mr Brenton Hales, a spectator. According to the complainant, he and the appellant were about 40 metres away from the play with no one else in their near vicinity. The complainant was jogging through the centre of the ground and the appellant was following close behind but slightly to the complainant’s left. As he was watching the play downfield he was struck by the appellant with a closed right fist to the left side of his jaw. After he fell to the ground, the appellant stood over him and said “I told you I would get you”.
During cross-examination, the complainant admitted that he did not see the actual strike occur. However, he recalled seeing a fist as it came into contact with his face. He deduced that he had been struck by a “closed fist roundhouse blow” to the face. It was put by counsel for the appellant that the complainant’s account was merely a reconstruction of events based on his conversations with club officials at training in the week following the game. This was denied. The complainant agreed with the general propositions that pushing and shoving commonly occurs away from the play during a game of Australian Rules Football and that players often get seriously hurt in the normal course of a game. However, the complainant maintained that this incident was different in that it involved a deliberate act of violence occurring away from the ball and outside the rules of the game.
It was put to the complainant that leading up to the incident he had been acting aggressively towards the appellant, that he had been throwing his elbows, arms and fists around at other players in a “liberal” manner and that, on at least two occasions, he had illegally struck players from Happy Valley away from the ball. The complainant strenuously denied those allegations.
Mr Hales attended the game in his role as a talent scout and recruiter for South Adelaide, a club in the South Australian National Football League. He arrived only a few minutes before the incident occurred. Mr Hales was about 30 or 40 metres from where the incident took place and said that he had an unrestricted view of what unfolded. He recalled seeing a Happy Valley player punch an Edwardstown player to the jaw whilst they were walking towards the southern end of the oval. The Edwardstown player fell to the ground as a result. He later identified the two players involved as the complainant and the appellant. According to Mr Hales, the two were side by side at the time of the incident with the appellant on the complainant’s right-hand[3] side. Mr Hales said that the appellant struck the complainant on the left side of his face with his right fist.
[3] In this respect, Mr Hales’ evidence was inconsistent with that of the complainant, the appellant and the appellant’s team manager (Mr Brenton Page) who all recalled the appellant being on the left. The relative positions of the protagonists at the time the blow was struck was of importance to the defence case for a reason to be explained.
During cross-examination it was put to Mr Hales that he may have been mistaken and that, consistent with the complainant’s evidence, the appellant was actually on the left-hand side and slightly behind at the time of the incident. It was also put that the contact to the face was accidental and occurred when the appellant sought to block the complainant’s run by extending an arm across his chest. Mr Hales denied those suggestions.
The appellant gave evidence. He put in issue and relied on his good character. He was 32 at the time of trial and has played football for over 20 years. He represented the South Adelaide Football Club in the South Australian National Football League at the height of his career. From 2002 to 2014 he played for the Happy Valley Football Club in the Southern Football League and was the captain for four years. During the course of his 12 years of senior football in the Southern Football League the appellant has been reported on only one other occasion; in 2002 or 2003 for allegedly head butting an opponent. That charge was dismissed. The appellant never received a suspension during his time in the Southern Football League and won two best and fairest awards for his club.[4]
[4] The appellant contends that the Magistrate failed to properly consider or give appropriate weight to the evidence of the appellant’s good character. I reject this contention. The Magistrate did not expressly direct himself (as one ordinarily would a jury) that the character evidence was relevant to the likelihood of the appellant having committed the alleged offence, and, perhaps, as bearing on his credit. However, the potential relevance of unchallenged good character evidence is ordinarily well understood by experienced judicial officers. In a trial by Judge alone the question usually will be whether or not any such evidence has been overlooked. Here the Magistrate identified and summarised the appellant’s character evidence in his Honour’s reasons (see Police v McKenzie [2015] SAMC 20 at [6]). I am satisfied it was taken into account and given appropriate weight.
According to the appellant, at the start of the game there was pushing and shoving between him and the complainant. It was the complainant who said words to the effect “I’m going to get you”. Shortly prior to the incident he observed the complainant to strike a Happy Valley teammate, Mr Huebner, with an elbow to the chest in an attempt to impede his run. The complainant then turned to run through the centre of the ground. The appellant was on his left and a little bit behind but still within arm’s reach. As the two were jogging about a kick away from the play, the complainant started to run off into space and the appellant extended his right arm horizontally across the complainant’s upper chest in an attempt to impede and knock him off balance. In doing so, the appellant made accidental contact to the head. The appellant said it was not his intention to hurt the complainant. He initially thought the complainant had been feigning for a free kick. The appellant denied saying words to the effect “I told you I would get you”. Rather, he said “What are you doing mate, are you an Academy Award winner or something?”
Four other witnesses were called by the defence; Mr Brenton Page, the Happy Valley team manager, Mr Anthony Huebner and Mr Justin Schurgott, teammates of the appellant, and Denise Schurgott, the mother of Justin and who was a spectator on the day.
Mr Page saw the incident. He said he had a habit of making file notes following discussions or events that he thought may lead to something further. He made such a file note in relation to the incident on the morning after the game. He refreshed his memory from the file note. According to Mr Page, the complainant was throwing his arms and elbows at the appellant in a “liberal” manner from the early stages of the game. He said that the complainant struck two other players from Happy Valley with blows that were outside the rules and spirit of the game in the lead up to the incident.
In relation to the incident itself, Mr Page recalled the appellant and the complainant jogging side by side. The appellant, who was on the left of the complainant, repeatedly extended his right arm across him. There was pushing and shoving between the two, after which the appellant threw out his right arm. The blow appeared to glance off the left shoulder of the complainant and into the side of his head.
Mr Huebner’s, Mr Schurgott’s and Ms Schurgott’s evidence concerned events prior to the complainant leaving the field, during which he allegedly interfered with players off the ball in a manner outside of the rules.[5] None of these three witnesses saw the incident involving the appellant and the complainant.
[5] It is unnecessary on this appeal to consider the admissibility of this type of evidence and, if admissible, its purpose or relevance. It is also unnecessary to consider whether this evidence concerned alleged “discreditable conduct” such that the requirements of section 34P of the Evidence Act 1929 may have been engaged.
The Magistrate’s reasons
The Magistrate reminded himself that the presumption of innocence applied in favour of the appellant and that it was for the prosecution to establish beyond reasonable doubt that he assaulted the complainant.
The Magistrate summarised, in some detail, the oral evidence of each witness. His Honour found the evidence of the two prosecution witnesses, the complainant and Mr Hales, to be honest and reliable. However, the Magistrate was troubled by the inconsistency in their accounts concerning their respective recollections of the position of the appellant immediately prior to the incident. That inconsistency caused “practical problems” for the prosecution case.
[The complainant’s] evidence suggests he was struck with a fist to the left side of this [sic: his] face. On [the complainant’s] evidence he and the [appellant] were running in the same direction and the accused was slightly behind [the complainant] and to the left. Mr Hales’ observations are significantly different. He said the [appellant] was on the right side of the victim and they were side by side. He said the blow was struck with the [appellant’s] right fist and struck the victim to the left side of his face. [The complainant] and Mr Hales both cannot be correct in their recollection of events. In cross-examination Mr Hales was told the evidence of [the complainant] was the accused was on his left just prior to the incident not on the right. Mr Hales was asked if his recollection may be wrong and he maintained the alleged assault occurred just as he had related. Defence counsel suggests it is not plausible for the [appellant] to have struck [the complainant] to the left side of his face with a right hand regardless of whether he was on the left or right of [the complainant].[6]
[6] Police v McKenzie [2015] SAMC 20 at [12].
I pause here to add that the prosecution only had to prove, and the Magistrate only had to be satisfied beyond reasonable doubt about, the elements of the offence of assault causing harm pursuant to section 20(4) of the Criminal Law Consolidation Act 1935. It was not part of the prosecution case to prove precisely how any such assault occurred, although the competing evidentiary positions concerning what occurred and how it occurred will have an important bearing on whether the required state of satisfaction is reached.
In short, the elements of the offence to be proved by the Crown are an intentional act causing contact with the complainant that was not consented to or was otherwise lawful and which caused harm. It was never in contest that the appellant intentionally struck the complainant and broke his jaw. The offence does not call for any consideration of a specific intent. The only issue in contention was the question of unlawfulness. If the contact was within the rules or, if outside the rules, within the ordinary expectations of participants in the game (see further below) the contact would be lawful even if it accidentally or unintentionally caused serious harm such as a broken jaw.
Ultimately, a number of the appellant’s complaints concerning the manner by which the trial was conducted and the Magistrate’s reasons carry little weight. The case, essentially, turned on the question of fact whether it was a deliberate closed fist punch (well outside the rules) or a deliberate block, within the rules and lawful and impliedly consented to but which had unintended consequences.

I return to my summary of the Magistrate’s reasons. His Honour took into consideration the fact that the complainant and Mr Hales both said that the blow from the appellant was landed by his right fist, and the practical difficulties this created given their respective accounts as to the position of the appellant relative to the complainant. His Honour resolved that difficulty in the following ways.[7]
One of the prosecution witnesses must be wrong, but that is not, in my view a reason to consider either or both to be unreliable. It is not the first time witnesses have a different memory of the same event and this is more likely to be the case where the event involved was of very brief duration. Any contact between [the complainant] and the defence [sic] would have occupied no more than a second.
Both prosecution witnesses said the blow was struck with the [appellant’s] right hand. [Defence] counsel says it is almost impossible to deliver a blow with the right hand to the left side of the defendant’s [sic: complainant’s] face in circumstances where according to both prosecution witnesses the [appellant] and [the complainant] were both facing in the same direction. I understand the practical issues but again that does not mean there was no punch…Despite their differences the one thing the prosecution witnesses agree on is the [appellant] punched [the complainant].
[7] At [15]-[16]. See also at [12] discussed further below.
The Magistrate rejected any suggestion of partiality on the part of Mr Hales, notwithstanding a previous affiliation with the Edwardstown Football Club as a player and more recently as coach. The Magistrate found Mr Hales to be the only truly independent witness.
The Magistrate then turned to consider the witnesses called by the appellant. His Honour made only one finding concerning the appellant. It was, in my view, a significant finding.[8]
His evidence was plausible and nothing he said or did suggested he was intending to deceive.
[8] At [13].
However, the Magistrate was troubled by the fact that all of the other defence witnesses, were in one way or another closely associated with the Happy Valley Football Club. His Honour found Mr Schurgott, Mr Huebner and Ms Schurgott to be unimpressive witnesses; the evidence of the latter two was described as “unconvincing”.[9] The Magistrate also indicated concerns with the evidence of Mr Page, in particular, with respect to his file note of the incident.
I am intrigued by the last line of Mr Page’s file note. It says ‘this file note has been made to ensure accuracy of events in case there is a future consequence/action’. I question why Mr Page would include these words in the file note or why he would imagine there would be any action in the future. There was no report at the time and on his version of events there was no prospect of such action because (on his view) [the appellant] was acting within the rules. This closing line in the file note causes me some discomfort about Mr Page’s evidence.[10]
[9] Of course, none of these witnesses saw the incident.
[10] At [17].
The Magistrate concluded his analysis as follows:[11]
[11] At [19]-[20].
Despite the differences in the recollections of [the complainant] and Mr Hales, I am satisfied there was an assault. It is hardly surprising they may each have a different memory of an incident which lasted no more than an instant, but the differences are not such as to cause me to dismiss the evidence of either of them. Where there is a conflict between the evidence of the prosecution witnesses and that of the defence witnesses, I prefer the evidence of [the complainant] and Mr Hales.
Findings
I make the following findings beyond reasonable doubt:
1    I find Mr Hearn [the complainant] and Mr McKenzie [the appellant] were engaged in a game of football in which they were immediate opponents.
2    I find there was a clash between Mr Hearn and Mr McKenzie as a result of which Mr McKenzie [sic: Mr Hearn] sustained a fracture to his jaw.
3    I find Mr Hearn’s injury resulted from a blow delivered by the defendant.
4    I find Mr McKenzie struck Mr Hearn with a clenched right fist; and
5    I find Mr McKenzie intended to strike Mr Hearn.
And
I find the charge proved.
The contentions on appeal
The appellant’s case on appeal, in essence, rests upon four fundamental contentions.
The first fundamental contention is that the prosecution case was not fully put to the appellant during his cross-examination; as a result, he suffered unfairness in not being able to properly address the case put against him. There are two aspects to this Browne v Dunn[12] argument. First, it was unfair that Mr Hales’ evidence that the appellant was positioned to the complainant’s right prior to the incident occurring was not put to the appellant during cross-examination. The appellant contends that the unfairness accorded to him in this respect is apparent from the fact that Mr Hales’ evidence featured prominently in the Magistrate’s reasons and, as such, the appellant should have been given an opportunity to rebut it.
[12] The so called rule in Browne v Dunn is so ubiquitous in Anglo-Australian jurisprudence citation is hardly necessary; but in case someone wants to read the case – (1893) 6 R 67.
The second aspect relates to the manner in which the prosecution put its version of the alleged assault to the appellant in cross-examination. The prosecutor did not put to the appellant that he punched the complainant to the face. Rather, the action was put as a “strike to the face” and a “hit…to the face”. It was submitted that the failure to use the word “punch” meant that a material characteristic of the prosecution case was not put to appellant. Again, it is submitted that the appellant was thereby prevented from fully addressing the case put against him.
There is nothing in the Browne v Dunn complaint. The appellant was fully on notice of the prosecution case before he elected to give evidence. The prosecution declarations had been disclosed and both the complainant and Mr Hales had completed their examinations in chief and been cross-examined. The complainant’s evidence in chief to the effect that he received a roundhouse hit with closed fist to the face[13] was directly challenged by the appellant’s counsel,[14] as was Mr Hales’ evidence that he saw a punch to the jaw[15] and that the appellant had struck from a position alongside and to the right of the complainant.[16]
[13] Trial transcript at p5.
[14] Trial transcript p19, 21.
[15] Trial transcript p44 (XN), p59-60 (XXN).
[16] Trial transcript p45, 47 (XN) and p53-59 (XXN).
The appellant gave evidence that was entirely consistent with his counsel’s cross-examination in these respects and, I infer, with his instructions to counsel. It was, at all times, common ground that the central factual dispute concerned whether the appellant punched with a close fist to the face (being outside the rules and expectations) or blocked in a manner that was within the rules and expectations. The conflict on the Crown case concerning the relative positions of the protagonists was apparent by the close of the Crown case.
The cross-examination of the appellant was very brief. Nevertheless, I am satisfied that the appellant was fully and fairly on notice of the case he had to meet and that he met it during his examination in chief. Further, the appellant’s counsel was unable to point to any prejudice or embarrassment. The appellant’s case was fully put in the evidence adduced on his behalf and in his counsel’s submissions.
The appellant’s second fundamental contention is that the Magistrate failed to address or direct himself in relation to the law as it applies to assaults under section 20(4) of the Criminal Law Consolidation Act 1935 (SA). The appellant submits that in finding the appellant guilty of assault, contrary to section 20(4), the Magistrate was obliged to satisfy himself that the contact made by the appellant to the complainant’s face was intentional, and that the complainant did not consent to the contact. The appellant argues that the Magistrate failed to address either issue in sufficient detail, such that his reasoning as to the basis on which the appellant was found guilty of assault suffered from a fatal inadequacy.
It is true that the Magistrate did not list the elements of the offence under section 20(4) and address them one by one with reasons for finding each element proved beyond reasonable doubt. In many, perhaps most cases, this would be a required and important aspect of the obligation to provide proper reasons. However, in this case, for the reasons earlier given, this was unnecessary. Once the central factual enquiry had been determined against the appellant the answers to questions of whether the act was intentional and not consented to by the complainant inevitably followed.
Section 20(2) provides as follows.
(2)However—
(a) conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and
(b) conduct that is justified or excused by law cannot amount to an assault.
There is a line to be drawn with respect to conduct that occurs on the sporting field particularly with body contact sports such as Australian Rules Football. Not all rough play, whether or not causing injury, that falls outside the rules of the game so as, for example, to give rise to a free kick or a player being charged with an offence before a football tribunal, will necessarily constitute a criminal assault. The law in this respect has been explained in a number of authorities in this State.[17] For example, in Bryant v Police[18] Perry J said this.
On the appellant's account of the matter, as supported by the witnesses called on his behalf, it is clear that the charge of assault could not be made out. This is so because Australian Rules football is very much a contact sport played in circumstances in which there will inevitably be a good deal of physical contact between the players, even on occasions violent contact. Furthermore, it must be accepted that participants in this sport must be regarded as having assumed the risk that opposing players will not always play according to the rules. In the result, even if there is an infringement of the rules resulting in physical contact or injury, it does not follow that this will necessarily give rise to criminal liability. In that respect I refer to the judgment of Johnston J in Watherston v Woolven.
While actions as described by the appellant and his witnesses may amount to an infringement of the rules, they could be not [sic] amount to the relatively extreme conduct which would fall outside the boundary of the risks which participants must be taken to have accepted.
On the other hand, a king hit, or a direct punch to the nose of the kind described by the witnesses called by the prosecution, could be construed as at least having the potential to give rise to criminal liability.
And in Baird v Police[19] King AJ explained the position in the following way.
The incident occurred in the course of an Australian Rules football match. Australian Rules football is a body contact sport, and those who engage in it are taken to consent to the body contact which occurs within the rules of the game.
I think moreover that those who engage in Australian Rules football must also be taken to consent to the commonplace infringements of the rules which occur in the course of that game in the effort of players to gain an advantage over their opponents so long as those infringements are the commonplace infringements which are to be expected in the course of the game and are not perpetrated with the intention of causing bodily injury to the opponent.
No consent can be implied, however, to a blow struck behind the play. Quite clearly players in a game of football do not consent to being struck behind the play. That is what the magistrate found to be proved in this case. He found it to be proved by the evidence beyond reasonable doubt that the appellant struck Shearn on the face when the ball was some considerable distance away and the two men were no longer engaged in a contest for the ball or in any form of shepherding or other tactical manoeuvre properly associated with the game.
[17] See, for example, Bryant v Police [2003] SASC 260 (Perry J); Baird v Police SASC, unreported, Judgment S6325, 11 August 1997, BC 9704130 (King AJ); Giumelli v Johnston SASC, unreported, Judgement 1880, 2 October 1989 (FC: King CJ, Mohr and Prior JJ); Watherstone v Woolven (1987) 139 LSJS 366 (Johnston J).
[18] [2003] SASC 260 at [13]-[15] (citations omitted).
[19] SASC, unreported, Judgment S6325, 11 August 1997, BC 9704130 at p2.
The Magistrate did not, in his reasons, outline the correct legal approach to the question of unlawfulness. Had this been a jury trial, a failure to direct on the law and its application to the facts of this case may have had force. However, the appellant never seriously contested, if at all, that on the complainant’s case (roundhouse punch with closed fist to the face) the element of unlawfulness would be made out. In my view, it was unnecessary as the case unfolded before the Magistrate for his Honour to expressly direct himself on the law in this respect.
According to the appellant’s third fundamental contention, the Magistrate failed properly to weigh and evaluate the oral evidence submitted at trial, and to apply to that evidence the requisite standard of proof. The appellant submits that the Magistrate erred in failing properly to reconcile the material difference in the oral testimonies of the two prosecution witnesses concerning the positions of the protagonists immediately prior to the incident.
According to the appellant, the Magistrate erred in favouring the evidence of the complainant and Mr Hales over the evidence of the appellant’s witnesses including the appellant himself. The appellant also submits that, given that the inconsistencies between the two prosecution accounts concerned a matter central to the case relied on by the prosecution, the Magistrate could not have been satisfied beyond reasonable doubt that an assault occurred.
The proper approach on an appeal against conviction from the Magistrates Court where it is alleged that the evidence did not lend sufficient support to the conviction is as described by White J in Martin v The Department of Transport, Energy and Infrastructure.[20]
[20] [2010] SASC 141 at [36]-[39].
As previously noted, the appellant’s first ground of appeal is that the Magistrate’s verdict was unsafe and unsatisfactory. A ground of appeal in these terms is commonly seen in appeals under s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). It is, however, inapplicable to appeals under s 42 of the Magistrates Court Act 1991 (SA).
The present appeal is an appeal by way of rehearing.[21] The function of this Court in hearing and determining an appeal against conviction under s 42 of the Magistrates Court Act is quite different from that of the Court of Criminal Appeal in hearing and determining an appeal under s 353(1) of the CLCA. This point was made by Perry J in Taylor v Hayes:[22]
While I suppose that there is no harm in using words such as “unsafe, unjust or unsatisfactory” or “cannot be supported having regard to the evidence”, or the words “miscarriage of justice” in the expression of grounds in support of an appeal under the Justices Act, they are words which are of more particular significance in relation to appeals under s 353 of the Criminal Law Consolidation Act.
Grounds of appeal under the Justices Act when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the Magistrate’s findings. While it must give due weight to the advantage held by the Magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the Magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for hearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the Magistrate upon which it was open for him to reach the decision the subject of the appeal.[23]
In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.[24]
Accordingly, although the appellant’s criticisms of the Magistrate’s decision are important, this Court must review the whole of the evidence put before the Magistrate.
[21] Magistrates Court Act 1991 (SA) s 42(1); Supreme Court Civil Rules 2006 (SA) r 286(1).
[22] (1990) 53 SASR 282.
[23] Ibid at 291-2.
[24] See generally Fox v Percy [2003] HCA 22 at [25]-[29]; (2003) 214 CLR 118 at 126-8; Warren v Coombes (1979) 142 CLR 531 at 551.
In the present case, significant weight must be given to the advantage enjoyed by the Magistrate in seeing and hearing the witnesses. This was a case where the material inconsistencies would cause a fact finder to pause (as did the Magistrate) before forming a concluded view. However, they were not such as to cause the Magistrate’s finding that the appellant struck the complainant with a clenched right fist to be “glaringly improbable” or “contrary to compelling inferences”.[25]
[25] Fox v Perry [2003] HCA 22; (2003) 214 CLR 118 at [29].
A trier of fact, properly instructed, is always entitled to accept some parts of the evidence of a witness but reject other parts. A trier of fact, in a case such as the present, would be entitled to accept the evidence of both prosecution witnesses that a punch was thrown but reject as unreliable, in all the circumstances, the evidence of one or other or both as to the location of the protagonists at the precise time the punch was thrown. There are any number of ways that the appellant, whether coming from the left or the right, might have manoeuvred himself so as to be able to land a right handed punch to the left side of the complainant’s jaw. The Crown only had to satisfy the Magistrate beyond reasonable doubt that this element of the offence (the punch) occurred. It did not have to prove beyond reasonable doubt the precise method, although the evidence in this respect was relevant to any state and level of satisfaction that a punch was thrown.
On my independent review of the evidence, and bearing in mind the natural advantages available to the Magistrate in this type of case, I am satisfied that it was open to the Magistrate to find the charge proved beyond reasonable doubt.

If the second and third fundamental contentions were the only complaints concerning the Magistrate’s reasoning process I would dismiss the appeal. However, I am troubled by the way in which the Magistrate has expressed his process of reasoning to conviction. The fourth fundamental contention is that the Magistrate failed to provide adequate reasons for his finding of guilt beyond reasonable doubt.
The concern here is not so much a lack of or inadequacy of reasons but that the reasoning, as expressed, does not support the conclusion reached of guilty beyond reasonable doubt.
The Magistrate could only convict if he had been satisfied beyond reasonable doubt of the accuracy of the appellant’s evidence to the effect that he saw a clenched fist immediately before he felt the blow and of Mr Hales’ evidence that he saw (from 30 to 40 metres away) a punch to the face. There is scope for there to have been error in their respective perceptions and the Magistrate would need to have rejected that possibility as not being a reasonable one in the circumstances.
Ordinarily, an acceptance of the prosecution witnesses beyond reasonable doubt would entail a rejection of the appellant’s and Mr Page’s evidence that the appellant engaged in a lawful blocking action that accidentally misfired. In a case such as this the injunction of Brennan J in Liberato v R[26] is apposite.
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is "a gross simplification".
[26] [1985] HCA 66; (1985) 159 CLR 507 at [11].
Further, on the facts of this case, there is little room for the appellant, if his evidence was in fact incorrect, to have been truthful but unreliable.[27] An acceptance of the prosecution witnesses and a rejection of the defence witnesses, ordinarily, would imply a finding that the appellant had not told the truth.
[27] It is conceivable, but unlikely, that a person would deliberately punch a person with a closed fist on the football field but later remember it or innocently reconstruct it as a lawful blocking to the upper chest with a forearm.
It is in this context that I need to, again, review the Magistrate’s path of reasoning to guilt. His Honour summarised the effect of the appellant’s evidence,[28] and Mr Page’s evidence[29] with a focus on what they said occurred at the time of the incident. His Honour then, correctly, reminded himself that the appellant was entitled to the presumption of innocence throughout the trial and that the prosecution was required to prove his guilt beyond reasonable doubt.
[28] At [6]-[7].
[29] At [8].
The Magistrate described the complainant and Mr Hales as “honest and reliable witnesses”. However, his Honour recognised and discussed the “practical problems” that their evidence presented for the prosecution. In this respect and as set out at [21] above, his Honour said this.[30]
My observations of the prosecution witnesses are [the complainant] and Mr Hales were honest and reliable witnesses. I did not observe in them any hesitation or reluctance to answer questions nor did I observe any attempt at evasion. Even so their evidence does produce some practical problems for the prosecution. [The complainant’s] evidence suggests he was struck with a right fist to the left side of this [sic: his] face. On [the complainant’s] evidence he and the [appellant] were running in the same direction and the [appellant] was slightly behind [the complainant] and to the left. Mr Hales’ observations are significantly different. He said the [appellant] was on the right side of the victim and they were side by side. He said the blow was struck with the [appellant’s] right fist and struck the victim to the left side of his face. [The complainant] and Mr Hales cannot both be correct in their recollection of events. In cross-examination Mr Hales was told the evidence of [the complainant] was the accused was on his left just prior to the incident not on the right. Mr Hales was asked if his recollection may be wrong and he maintained the alleged assault occurred just as he had related. Defence counsel suggests it is not plausible for the defendant to have struck [the complainant] to the left side of his face with a right hand regardless of whether he was on the left or right of [the complainant].
Plainly, and notwithstanding his Honour’s description of the complainant and Mr Hales as being “reliable witnesses”, the Magistrate had concerns about their “reliability” with respect to the important evidentiary issue of how the physical contact unfolded – “[they] cannot both be correct in their recollection of events”.
[30] At [12].
His Honour then made findings as to the extent he accepted or rejected the evidence of the defence witnesses. The only finding made in this respect concerning the appellant is contained within the following passage.[31]
The defence witnesses fell into two categories, that is those who were involved in or saw the incident and those who did not see it. The [appellant] admits to striking [the complainant] to the head but denies there was an intention to make contact with [the complainant’s] head or to cause any harm to him. Consistent with [the complainant’s] evidence the accused said he was to the left and slightly behind [the complainant]. His evidence was plausible and nothing he said or did suggested he was intending to deceive. Mr Page’s version was very close to that of the accused.
The language of the italicised finding connotes first, that the complainant’s evidence was believable and, second, that there was no apparent intention to deceive the court, that is, to be untruthful. To this point, the Magistrate’s language is redolent of a finding that the appellant’s account was reasonably possible. Such a conclusion would be inconsistent with a finding of guilt beyond reasonable doubt.
[31] At [13] (emphasis added).
The Magistrate next dealt with and dismissed, as unimpressive and unhelpful, the other defence witnesses. His Honour then discussed and ultimately placed significant weight on the evidence of Mr Hales, whom he characterised as “the only witness who could be described as independent”.[32] According to his Honour “his observations [could not] easily be dismissed”.[33] His Honour for a second time described him as “a reliable and honest witness”.[34]
[32] At [17].
[33] At [17].
[34] At [17].
His Honour then dealt with other matters not necessary to set out here and concluded in the manner earlier set out but which bears repeating in the present context.[35]
[35] At [19]-[20] (emphasis added).
Despite the differences in the recollections of [the complainant] and Mr Hales, I am satisfied there was an assault. It is hardly surprising they may each have a different memory of an incident which lasted no more than an instant, but the differences are not such as to cause me to dismiss the evidence of either of them. Where there is a conflict between the evidence of the prosecution witnesses and that of the defence witnesses, I prefer the evidence of [the complainant] and Mr Hales.
Findings
I make the following findings beyond reasonable doubt:
1 to 5 [see earlier]
And
I find the charge proved.
The language – “[Mr Hales’] observation [could not] easily be dismissed” and “I prefer the evidence of [the complainant] and Mr Hales” – is not the language of proof beyond reasonable doubt. It is language more akin to the civil burden of balance of probabilities. My concern with this language is compounded by the failure of the Magistrate to expressly disbelieve and reject the evidence of the appellant. The finding that “his evidence was plausible and nothing he said or did suggested he was intending to deceive” is not the language of excluding the appellant’s account as a reasonable possibility.
The Magistrate may well have been persuaded beyond reasonable doubt but I cannot be satisfied of this given these modes of expression. In this respect, the observation of Von Dousa J in Abnett v Korber[36] is apposite and determinative.
The mere recital of a correct direction on the onus of proof at the commencement or conclusion of a judgment will not justify the result if, upon consideration, the court’s reasoning or findings illustrate either that an incorrect onus of proof was applied in fact or that there was evidence, not rejected by the court, which left open reasonable doubt about elements of the offence charged.
[36] SASC, unreported, Judgment 9363, 2 September 1986 at pp6-7.
Conclusion
I allow the appeal on the basis of this fourth contention. I have not had the advantage of seeing and hearing the witnesses and given my conclusion above with respect to the third contention, I consider that the appropriate exercise of the discretion is to order a re-trial. I make the following orders:
1. appeal allowed;
2.the appellant’s conviction for assault is set aside; and
3.the matter is remitted to the Magistrates Court for re-trial before a different Magistrate.