Nasr v Police - [2017] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NASR v POLICE
[2017] SASC 138
Judgment of The Honourable Justice Blue
25 September 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE CONFLICT OF EVIDENCE
Appeal against conviction by Magistrate for assault.
The complainant previously acted as solicitor for the appellant and there had been disputes between them concerning costs.
On 4 May 2016 the appellant and his former partner appeared at a directions hearing in the District Court in division of property proceedings. The complainant also appeared because he had lodged a caveat and charging orders over the appellant’s interest in the jointly owned property. The complainant claimed that he was still owed $1,180. The appellant took strong offence to this claim, contending that all costs claimed had been resolved by a compromise agreement the previous year.
At the end of the hearing, there was an altercation between the appellant and the complainant. The complainant later gave evidence that he felt something brush against him and turned to see the appellant and the appellant said “Why are you doing this to me?” and “I’m going to get you”, raising his arm with a fist at the same time. The appellant later gave evidence denying this, saying that he said “How dare you lie to the Judge?” and pointed his finger rather than raising his fist.
At the trial, evidence was given by the appellant’s former partner, who said that she did not witness the first part of the confrontation but did hear the appellant say “How dare you lie to me?”. She did not hear the complainant say “Why are you doing this to me?” or “I’m going to get you” and did not see the complainant raise his arm. A Sheriff’s officer gave evidence that she did not see the altercation but was informed of it by the complainant immediately after it occurred.
The Magistrate accepted the complainant’s evidence beyond reasonable doubt and rejected the appellant’s evidence beyond reasonable doubt. The Magistrate was not satisfied beyond reasonable doubt that the appellant intentionally made contact with the complainant when brushing against him or that the appellant raised his fist as opposed to raising his arm. The Magistrate found the charge proved and recorded a conviction.
The appellant appeals against the conviction on the grounds that the Magistrate:
1.       did not give any or sufficient consideration to the evidence of the appellant’s former partner or the Sheriff’s officer which did not support the complainant’s evidence;
2.       disregarded her findings that it was not proved beyond reasonable doubt that the appellant intentionally made contact with the complainant or that he raised his fist;
3.       erred in finding that the elements of assault were proved beyond reasonable doubt.
Held:
1.       The evidence of the appellant’s former partner and of the Sheriff’s officer was not inconsistent with the complainant’s account (at [54]).
2.       The fact that the Magistrate was not satisfied beyond reasonable doubt that the appellant made contact with the complainant or that the appellant raised his fist did not entail that the appellant must be found not guilty (at [62]).
3.       No error has been demonstrated in the Magistrate’s acceptance beyond reasonable doubt of the complainant’s evidence and rejection beyond reasonable doubt of the appellant’s evidence (at [72]).
4.       No error has been demonstrated in the Magistrate’s finding that the elements of the offence were proved beyond reasonable doubt (at [76]-[78], [85]).
5. Subsection 20(3) of the Criminal Law Consolidation Act 1935 creates only a single offence of assault (at [83]-[84]).
6.       The conduct of the investigating officer, the prosecutor and the Magistrate was not such as to vitiate the Magistrate’s finding of guilt (at [87]-[96]).
7.       Appeal dismissed (at [97]).
Criminal Law Consolidation Act 1935 (SA) s 20, referred to.
Romeyko v Samuels (1971) 2 SASR 529, discussed.

NASR v POLICE
[2017] SASC 138
Magistrates Appeal: Criminal
BLUE J:

This is an appeal against conviction by a Magistrate.
On 1 March 2017, following a trial, a Magistrate found the appellant Abou Nasr guilty of assaulting Brian (Patrick) Black on 4 May 2016,[1] recorded a conviction and imposed a fine.
[1] Criminal Law Consolidation Act 1935 (SA) subsection 20(3).
The appellant, who appears in person, appeals against the conviction on the grounds that the Magistrate erred:
1.in not giving any or sufficient consideration to the witness evidence that did not support the prosecution case;
2.in not finding that Mr Black committed a felony by making a false accusation against the appellant;
3.in disregarding her finding that it was not proved beyond reasonable doubt that the appellant raised his fist against Mr Black;
4.in disregarding her finding that it was not proved beyond reasonable doubt that the appellant intentionally made any physical contact with Mr Black;
5.in finding that the elements of assault were proved beyond reasonable doubt, including that the appellant’s conduct did not lie within the limits of what could be generally accepted in the community as normal incidents of social interaction or community life.
Background
Sometime before 2004 the appellant was in a relationship with Ms V. They had one child. They owned a house at Greenhill.
In 2004 Ms V instituted an action in the District Court for division of property pursuant to the De Facto Relationships Act 1996 (SA) (the District Court action).
Sometime before 2012 a proceeding was instituted in the Federal Magistrates Court between the appellant and Ms V relating to custody.
In October 2012 the appellant engaged Lamont Black Lawyers to act for him in the Federal Magistrates Court proceeding. Mr Black, a principal of that firm, had the conduct of the matter.
In July 2013 the appellant terminated his instructions to Lamont Black Lawyers and commenced to act on his own behalf in the Federal Magistrates Court proceeding. Lamont Black Lawyers rendered an account to the appellant, which he refused to pay.
Mr Black applied to the Supreme Court for adjudication of his costs. The appellant disputed liability and a Master directed Mr Black to bring an action in the Magistrates Court to determine liability.
Mr Black instituted an action in the Magistrates Court. In October 2013 a Magistrate granted judgment in favour of Mr Black and ordered that the appellant pay costs fixed at $20,000.
In November 2013 Mr Black applied to the Magistrates Court for and was granted a charging order over the appellant’s interest in the Greenhill property (the first charge). The Court ordered that the appellant pay Mr Black’s costs of the application in a fixed sum.
At some point Mr Black lodged a caveat over the appellant’s interest in the Greenhill property (the caveat).
In July 2014 a Master completed the adjudication of costs and in September 2014 an allocator for $31,041 was issued.
In September 2014 Mr Black applied to the Magistrates Court for and was granted a further charging order over the appellant’s interest in the Greenhill property (the second charge). The Court ordered that the appellant pay Mr Black’s costs of the application in a fixed sum. The total of the costs ordered in respect of the November 2013 and September 2014 charging orders (the charges) was $1,180.
Mr Black issued a creditor’s petition in the Federal Circuit Court against the appellant based on the allocator. The costs that would have been ordered if the Court had made a sequestration order against the appellant were $5,930. Ultimately the petition was dismissed as a result of the settlement agreements referred to below.
In November 2014, at an informal mediation, the appellant and Mr Black entered into a settlement agreement under which the appellant was to pay $55,000 by instalments in full satisfaction of the judgment debts (including the costs in the bankruptcy petition) (the November 2014 agreement).
The appellant subsequently paid $30,000 by instalments to Mr Black, leaving a balance of $25,000.
In January 2015 the appellant and Mr Black entered into a further settlement agreement under which the appellant was to pay $18,000 in full satisfaction of the balance of $25,000 due pursuant to the November 2014 agreement and Mr Black agreed to withdraw the caveat upon receipt of the payment (the January 2015 agreement). On 12 January 2015 the appellant paid $18,000 to Mr Black.
On 4 March 2016 Judge Millsteed delivered reasons for judgment in the District Court action. Judge Millsteed decided that the Greenhill property should be sold and the proceeds paid into Court for division between the parties but first that each party should have two months to agree to purchase the other’s interest in the property. Judge Millsteed referred to the caveat and the charges. Judge Millsteed said that the Court would inform Mr Black of the proposed orders and invite submissions on 4 May 2016 as to whether he wished to appear and make a claim in respect of the proceeds of sale.[2]
[2] Judge Millsteed also referred to a statutory charge in favour of the Legal Services Commission and said that the Court would give a similar notice to the Legal Services Commission. A representative of the Legal Services Commission appeared on 4 May 2016 and informed Judge Millsteed that the debt had been paid out, the charge had been removed and the Commission had no interest in the matter.
On 7 March 2016 the appellant telephoned Mr Black and requested him to remove the caveat. There were then communications between the appellant and Mr Black in the course of which Mr Black agreed to withdraw the caveat but also told the appellant that he was obliged to pay $1,180 for the costs of the charges. In due course, Mr Black withdrew the caveat. On 8 March 2016 the appellant lodged a complaint with the Legal Profession Conduct Commissioner about Mr Black’s demand for payment of monies, alleging that it amounted to blackmail.
On 2 May 2016 Mr Black filed in the District Court action an affidavit sworn on 27 April 2016 setting out the history of his dealings with the appellant (the first Black affidavit). He sought orders that the appellant pay $1,180 to him to remove the charging orders; that the January 2015 agreement be set aside on the ground of misrepresentation; and that the appellant pay his costs of preparing the affidavit and attending on 4 May 2016.
On 4 May 2016 at 9.17 am the District Court action came before Judge Millsteed for directions. Mr Black appeared as well as Ms V and the appellant. Mr Black handed to the appellant a copy of his affidavit filed on 2 May 2016. Mr Black contended in accordance with his affidavit that the appellant had as part of the January 2015 agreement agreed to pay $1,180 (in addition to the $18,000) after finalisation of the District Court action and this had been reiterated in March 2016. The appellant disputed this and contended that the payment of $18,000 in January 2015 was in full satisfaction of all outstanding claims. Judge Millsteed adjourned the matter to 3 June 2016.
After Judge Millsteed adjourned, there was an altercation between the appellant and Mr Black which gave rise to the charge of assault. The altercation was partially witnessed by Ms V and a sheriff’s officer Ms Hamann.
Senior Constable Bowden and Constable Gerhardy attended at the District Court. Senior Constable Bowden spoke briefly to Mr Black.
Senior Constable Bowden and Constable Gerhardy conducted a video recorded interview of the appellant. The appellant said that he approached Mr Black and said “How dare you lie to the Judge in front of me; you’re a lawyer for Christ’s sake”, waving one finger at Mr Black, while standing four to five feet away and then walked away. He said that he was upset at Mr Black but not angry. He denied touching or making contact with Mr Black and denied threatening or assaulting him.
Mr Black subsequently emailed a statement to Senior Constable Bowden, which she put into a standard form statement which was ultimately sworn by Mr Black on 22 June 2016 (the first Black statement). Mr Black said that just outside the courtroom he felt his body or arm being touched and turned to see the appellant. He said that the appellant was very aggressive and said “Why are you doing to this to me?” and “I’m going to get you”. He said that at the same time the appellant raised his right hand, holding something in it and his hand was in a fist position. He said that he believed that the appellant was going to strike him and he moved away and spoke to a Sheriff’s Officer.
On 9 May 2016 the appellant sent by email to Mr Black an unsworn affidavit in the District Court action responding to Mr Black’s affidavit filed on 2 May 2016. The appellant subsequently swore an affidavit on 18 May 2016 which I assume was largely in the same terms.
On 11 May 2016 Senior Constable O’Donohue took a statement from Mr Black which was sworn by Mr Black on that day (the second Black statement).
On 20 May 2016 the police filed in the Magistrates Court an application for an intervention order against Mr Nasr in relation to Mr Black and his family.
On 30 May 2016 Mr Black filed in the District Court action an affidavit in response to the appellant’s affidavit (the second Black affidavit) addressing amongst other things the altercation of 4 May 2016.
On 4 August 2016 Senior Constable Bowden took a statement from Ms V, which she affirmed on that day.
On or before 5 August 2016 Senior Constable Bowden prepared a police apprehension report summarising statements taken from Mr Black, Ms V and Ms Hamann and the appellant’s account during the interview (the police apprehension report).
On 23 August 2016 Senior Constable Bowden took a statement from Ms Hamann, which she subsequently affirmed on 30 August 2016.
On 29 and 30 August 2016 respectively Constable Gerhardy and Senior Constable Bowden prepared their own statements which they each affirmed.
On 30 November 2016 a complaint was filed by the Police in the Magistrates Court against the appellant alleging that on 4 May 2016 he assaulted Mr Black in contravention of subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the Act).
On 8 December 2016 the appellant swore an affidavit responding to the allegations and gave a copy to the police prosecutor. He exhibited most of the documents referred to above, including all of the statements prepared by the police, the police apprehension report, Mr Black’s two affidavits and his own unsworn affidavit in the District Court action and certain communications between Mr Black and himself.
The trial and verdict
The trial took place on 31 January 2017. The appellant appeared in person. The prosecution called Mr Black, Ms Hamman, Ms V and Senior Constable Bowden and tendered the video recorded interview of the appellant. The appellant gave evidence along the same lines as his account in his interview by the police on 4 May 2016. The appellant tendered his affidavit. Although the Magistrate heard oral evidence from the appellant in lieu of receiving his affidavit as his testimony, the exhibits to the affidavit were treated as if they were received as evidence.
On 1 March 2017 the Magistrate delivered reasons for judgment. The Magistrate briefly summarised the background. The Magistrate noted that English is the appellant’s second language and took into account the possibility that words spoken by him and to him may be occasionally misunderstood. The Magistrate referred to the definition of assault contained in subsection 20(1), and referred in particular to paragraphs (c) and (e) of that definition.
The Magistrate summarised Mr Black’s evidence. In relation to his cross-examination, the Magistrate said:
The defendant’s cross examination of Mr Black concerned details surrounding the manner in which persons left the courtroom and in what sequence. There was also an attempt to establishing inconsistency in the account given by Mr Black in his earlier statements and evidence, but without success. In his cross examination of the complainant, the defendant suggested that he was simply upset at Mr Black and stated to him “How dare you lie to me in front of the judge. You’re a lawyer for Christ’s sake.” Mr Black rejected this version of events. The witness was not shaken in cross-examination. In my view, he gave a consistent and credible account of the incident and he presented as an honest and reliable witness.
The Magistrate summarised the evidence of Ms Hamman and Ms V. She said that each was a credible witness not shaken in cross-examination. She said that she had considered the differences in the witnesses’ respective accounts as well as the appellant’s arguments in considering the reliability of the prosecution witnesses.
The Magistrate referred to the evidence of Senior Constable Bowden and summarised what the appellant said during his interview. The Magistrate summarised the appellant’s evidence. The summary included the following passages:
He conceded that he was angry at Mr Black for refusing to remove the caveat and had confronted him in an email about it.…
Mr Nasr admitted that after the hearing ended, he approached Mr Black, pointed his finger and said ‘How dare you lie in front of me to the Judge’. He denied threatening Mr Black, touching him or raising his fist. On Mr Nasr’s version, he was the last person to leave the court, a point which he emphasised a number of times. A similar point emphasised concerned whether Mr Black held open the door when leaving the court, however, I find that little turns on this evidence.
Mr Nasr denied being aggressive, maintaining that he was ‘firm’…
He acknowledged that when he confronted Mr Black after the hearing, he may have raised his voice, but he did so not to intimidate Mr Black, but to make himself feel better.
He agreed that he was ‘semi-attacking’ Mr Black because he ‘lied to the Judge’. He said that he wanted to give him the point.
Mr Nasr rejected the evidence from sheriff’s officer Hammond (sic) concerning his angry demeanour when dealing with Mr Black.
The Magistrate made the following conclusions:
Notwithstanding the allowances made for communication challenges for the defendant, I formed an unfavourable view of his credibility as a witness. He was shaken at times during cross-examination. The concessions made on some topics were only made when pressed repeatedly.
I consider that on Mr Nasr’s own admissions, the offence of assault is made out in the sense that he accosted or impeded Mr Black in a threatening manner.
Where there are differences between the account given by Mr Black and the defendant, I accept the version given by Mr Black beyond reasonable doubt with the following qualifications.
Having regard to all of the evidence, including that of the defendant, I make the following findings of fact proven beyond reasonable doubt:
During the hearing in the District Court on 4 May 2016 the defendant behaved in a belligerent manner in which he expressed his anger and resentment towards Mr Black to the Judge for causing a caveat to be placed on the matrimonial home.
When the hearing concluded, Mr Black moved without delay to the door to exit, sensing that he should keep his distance from the defendant.
The defendant pursued Mr Black and approached him in a hostile and aggressive manner.
The defendant did make physical contact with Mr Black by brushing up against him, however, the evidence does not satisfy me beyond reasonable doubt that this physical contact was intentional.
The defendant raised his voice at Mr Black from a distance of about 30 cm away and during this time he raised one hand and gestured at Mr Black in a threatening manner.
Whilst addressing Mr Black, the defendant’s demeanour remained aggressive and threatening and he shouted words which included ‘Why are you doing to this to me?’, ‘I’m going to get you’ and ‘Why are you lying?’.
The evidence does not satisfy me to the requisite standard that it was a fist which was raised, but I find beyond reasonable doubt that the defendant raised his hand and gestured in a threatening manner towards Mr Black whilst angrily berating him. I accept beyond reasonable doubt that the effect of this behaviour led Mr Black to reasonably fear that he might be struck by the defendant. I find it proven to the requisite standard that the defendant intended to cause Mr Black to fear violence, or a real possibility of violence.
The elements of basic assault are made out on both limbs referred to above, although in my view, the assault is best characterised as one in which the defendant ‘accosted or impeded’ Mr Black. I find that the defendant’s actions were intentional and without consent.
Evidence of Ms V and Ms Hamman

The first ground of appeal is:
1.The Magistrate erred in not giving any or sufficient consideration to the witness evidence does not support the police and the accuser evidence.
Ms V gave evidence that she was the last to leave the courtroom and did not see the initial part of the interaction between the appellant and Mr Black. She said that she had a bundle of documents in her hand and was trying to sit down so she was not really listening to the interaction between them. She characterised it as the appellant yelling at Mr Black. She said that she then heard the appellant say to Mr Black “How dare you lie, you lying bastard”. She said that she was about three metres away at this point. Her evidence proceeded as follows:
A. His face was really, the expression was very, very angry.
Q. How close was he to Mr Black at that point, the distance between the two.
A.A little bit closer than you would be if you were just having a conversation with someone, but like, a bit close, yes.
…
Q. What happened as this was going on, what happened next.
A.Well, those were Mr Nasr’s last words and then he, it was really very angry and then he walked off abruptly.
In cross-examination, Ms V gave the following evidence:
Q. Did you see Mr Nasr hitting or pushing Mr Black.
A.No.
Q. Did you see Mr Nasr raising his fist at Mr Black.
A.No, but I didn’t witness the entire conversation was already taking place as, before, I walked into the foyer. But what I – I didn’t see, what I saw I didn’t see that you were hitting him.
The appellant contends that Ms V’s evidence was inconsistent with the evidence of Mr Black and should have caused the Magistrate to have a reasonable doubt about the accuracy of Mr Black’s account.
However, Ms V only witnessed the last part of the interaction between the appellant and Mr Black. While she did not hear the appellant say as Mr Black had testified ‘Why are you doing to this to me?’ or ‘I’m going to get you’, she was not in a position to deny that this was said because there was conversation between the appellant and Mr Black before she started listening and she could not say what it was. While she did not see the appellant touch Mr Black as Mr Black testified, on Mr Black’s account this occurred at the very beginning of the interaction and she did not witness the beginning of the interaction. While she did not see the appellant raise his arm, it was common ground between Mr Black and the appellant that he did raise his arm, the difference being that the appellant testified that he pointed his finger whereas Mr Black testified that he was holding something in a closed fist. It cannot be said that Ms V’s evidence was inconsistent with Mr Black’s evidence.
Ms V’s evidence to some extent corroborated the appellant’s evidence because she confirmed his account that he said to Mr Black “How dare you lie …” However, her evidence also to some extent corroborated Mr Black’s evidence because she confirmed that the appellant was very angry and was closer to Mr Black than during normal conversation.
While it is necessary to assess all of the evidence in the case holistically, it cannot be said that Ms V’s evidence required the Magistrate to reject those parts of Mr Black’s evidence which the Magistrate accepted.
The Magistrate summarised the evidence given by Mr Black and Ms V and it is evident from the summary that Ms V did not corroborate the appellant’s evidence in respect of the critical part of the altercation but equally that she may not have witnessed that part of the altercation. There is no basis to conclude that the Magistrate did not, as the appellant contends, give consideration to Ms V’s evidence insofar as it did not affirmatively support Mr Black’s evidence.
Ms Hamman gave evidence that on 4 May 2016 she entered the courtroom towards the end of the civil matter to prepare for the criminal matter listed for 9.30am. She left the courtroom to speak to the litigants in the criminal matter and her focus was on this. Mr Black told her that he had just been assaulted. She did not hear any conversation between Mr Black and the appellant or see any physical interaction between them. At that point, they were about four feet apart and the appellant was adopting an aggressive stance toward Mr Black with an angry face and aggressive demeanour.
In cross-examination, Ms Hamman confirmed that she did not see the appellant push Mr Black or raise his fist to Mr Black or hear the appellant say anything to Mr Black.
The appellant contends that Ms Hamman’s evidence was inconsistent with the evidence of Mr Black and should have caused the Magistrate to have a reasonable doubt about the accuracy of Mr Black’s account. However, because Hamman did not witness any part of the altercation, her evidence is neutral.
This ground, considered in isolation, is not established.
Aspects not found to be proved beyond reasonable doubt
The third and fourth grounds of appeal are:
3.The Magistrate erred in law in disregard the evidence does not satisfy her Honour to the requisite standard that the appellant did raised his fist against the accuser.
4.The Magistrate erred in law in disregard the evidence does not satisfy her Honour that the appellant did not make any physical contact with the accuser.
The Magistrate said in her reasons for judgment in the passage more fully extracted at [42] above:
The evidence does not satisfy me to the requisite standard that it was a fist which was raised
Mr Black gave evidence that the appellant had an object in his right hand and raised his right hand upwards holding that object in his fist. Mr Black said that he was not sure at the time what the appellant was holding but with hindsight it was probably his baseball cap which he always wore. The appellant gave evidence that he pointed his finger because he was not happy with what he had heard inside the courtroom.
The fact that the Magistrate was not satisfied to the requisite standard that it was a fist which was raised by the appellant does not entail that the Magistrate ought to have found that Mr Black was not an honest witness because on Mr Black’s account the appellant was holding an object such as a baseball cap which was consistent with the appellant not raising a fist as such. Nor does it entail that the Magistrate ought to have found that Mr Black was not a reliable witness for the same reason.
It is evident that the Magistrate took into account this lack of satisfaction when nevertheless finding beyond reasonable doubt that the appellant did raise his hand and gestured in a threatening manner towards Mr Black whilst angrily berating him because the latter finding appears in the same sentence as the former.
The Magistrate said in her reasons for judgment in the passage more fully extracted at [42] above:
The defendant did make physical contact with Mr Black by brushing up against him, however, the evidence does not satisfy me beyond reasonable doubt that this physical contact was intentional.
Mr Black gave evidence that he felt a brush to his arm, turned around and saw the appellant in front of him. Mr Black did not see the appellant make contact with him and it was entirely consistent with his evidence that the contact was unintentional. The fact that the Magistrate was not satisfied beyond reasonable doubt that the contact was intentional was incapable of reflecting adversely on Mr Black’s honesty or reliability as a witness.
These two grounds, considered in isolation, are not established.
Satisfaction beyond reasonable doubt
The second and fifth grounds of appeal are:
2.The Magistrate erred in the fact that the accuser commit a felony with false accusation made against the appellant.
5.The Magistrate erred in the law the appellant is presumed innocent unless and until proven guilty by admissible evidence, SA police and her honour could not proof admissible evidence that the appellant establish the elements of the offence of basic assault beyond a reasonable doubt all evidence support the appellant claims, a relevant matter division 7 – Assault – 20(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.”
The Magistrate’s acceptance of Mr Black’s evidence and rejection of the appellant’s evidence
The appellant contends that the Magistrate erred in accepting Mr Black’s evidence beyond reasonable doubt. The appellant contends that there were inconsistencies between Mr Black’s versions of the incident because in Mr Black’s second statement he said that he “pushed the court door open so it wouldn’t close on others leaving the Court”, thereby implying that he allowed the others to leave the courtroom before he did; whereas in his second affidavit he said that he “was one of the first to leave the Courtroom”. However, in Mr Black’s first statement given shortly after the events in question, Mr Black has said that he opened the door and it remained open and this was the evidence that he gave before the Magistrate. Considered in context, there was no inconsistency between the different versions given by Mr Black as to who left through the door first.
The appellant contends that Mr Black gave evidence that he did not know the purpose of the hearing on 4 May 2016 before he attended and this is contradicted by the fact that he had filed his first affidavit on 2 May 2016 seeking orders by Judge Millsteed.
Mr Black’s evidence in chief included the following passage:
Q. For what purpose were you there that day.
A.I received a letter from the chambers of Judge Millsteed asking me to attend on that date. As an officer of the court, I attended. I had no knowledge of what it was about.
Considered in isolation, this answer might be understood as indicating that Mr Black had no knowledge why he was attending. However, Mr Black gave the following further evidence in chief:
Q. When did you become aware as to your reason for being there..
A.I had received communication from the defendant saying that he had come to an agreement in court, but it was only whilst at court I found out what it was for.
…
Q.I’m not going to ask you to go into detail but basically the purpose of that hearing was for what.
A.The defendant and his de facto ex had commenced proceedings in the District Court under the old family law provisions.… Ultimately a decision had been reached by Judge Millsteed as to what was to happen and he sought guidance as to Magistrates Court charge on the defendant’s property and a caveat had been registered to protect the debt.
In light of this later evidence, it is evident that the matter of which Mr Black said at the outset he had no knowledge was the exact issues between the appellant and Ms V as opposed to Mr Black’s own role as a third party to the action. In any event, the appellant was not cross-examined in relation to any inconsistency between his evidence in this respect and his affidavit filed on 2 May 2016, which could only be relevant to credit. This topic of Mr Black’s prior knowledge of the purpose of the hearing on 4 May 2016 had no intrinsic importance and was not a matter about which there would be any purpose in Mr Black lying and hence not a matter likely to affect his credit.
There were differences between the evidence of Mr Black and the evidence of the appellant. There was a difference whether Mr Black left the courtroom first or last, Mr Black giving evidence that he left the courtroom first after leaving the door open for the others and the appellant giving evidence that Mr Black left the courtroom last after holding the door open for the others. However, this was such an unimportant topic that any difference in recollection was very unlikely to affect the Magistrate’s assessment of the honesty or reliability of the respective witnesses. There were critical differences as to whether the appellant brushed against Mr Black, said “I’m going to get you”, was unusually close to Mr Black when speaking to him and was aggressive towards Mr Black. These differences were irreconcilable and the Magistrate was called on to decide whether she was persuaded beyond reasonable doubt that Mr Black’s account was accurate and the appellant’s denial was false. This turned on her assessment of the evidence given by Mr Black and the appellant. The Magistrate had the considerable advantage of seeing and hearing the witnesses give evidence.
The appellant put to Mr Black in cross-examination that Mr Black had attempted to extort $10,000 from him which Mr Black had compromised as part of the November 2014 and January 2015 agreements. Mr Black denied this and said that while he referred to the sum of $10,000 as being secured by the caveat, he did not demand payment of it or assert that it was payable. This issue could only be relevant to Mr Black’s credit. In any event, the relevant communications exhibited to Mr Nasr’s December 2016 affidavit do not establish that Mr Black demanded payment of $10,000.
The appellant did not put to Mr Black in cross-examination that he had attempted to extort $1,180 from him which Mr Black had compromised as part of the November 2014 and January 2015 agreements, although it is clear that the appellant believed that this had been the case. This issue could only have been relevant to Mr Black’s credit. In any event, the documents exhibited to Mr Nasr’s December 2016 affidavit are not capable of establishing one way or the other whether the sum of $1,180 was included in the compromise the subject of the November 2014 and January 2015 agreements.
I have reviewed the whole of the evidence including not only the evidence given by Mr Black and the appellant but also the evidence given by the other witnesses and the documents tendered by the appellant. It cannot be said on the whole of the evidence that it was not open to the Magistrate to prefer the evidence of Mr Black over that of the appellant or to be satisfied beyond reasonable doubt that Mr Black’s account was accurate and the appellant’s denial was false.
The elements of the offence
Section 20 of the Act provides:
20—Assault
(1)A person commits an assault if the person, without the consent of another person (the “victim”)—
(a)     intentionally applies force (directly or indirectly) to the victim; or
(b)     intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
(c)     threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—
(i)the person who makes the threat is in a position to carry out the threat and intends to do so; or
(ii)there is a real possibility that the person will carry out the threat; or
(d)     does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or
(e)     accosts or impedes another in a threatening manner.
(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.
(3)A person who commits an assault is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 2 years;
(b)for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 3 years;
(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 4 years.
(4)A person who commits an assault that causes harm to another is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 3 years;
(b)for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 4 years;
(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 5 years.
Note—
This offence replaces section 40 (assault occasioning actual bodily harm) as in force prior to the commencement of this subsection and, consequently, see Coulter v TheQueen (1988) 164 CLR 350.
The Magistrate proceeded on the assumption that section 20 creates a single offence of assault, not five separate offences coinciding with the five paragraphs of subsection (1). I return to that assumption later.
The Magistrate found that the third limb contained in paragraph (c) of the definition of assault contained in subsection 20(1) was established. The Magistrate found that:
1.the appellant threatened to apply force to Mr Black;
2.the appellant’s conduct led Mr Black reasonably to believe that he might be struck by the appellant (ie that there was a real possibility that the appellant would carry out the threat);
3.the appellant’s actions were intentional and were intended to cause Mr Black to believe that there was a real possibility of violence; and
4.the appellant’s actions were without consent.
Given the Magistrate’s findings beyond reasonable doubt accepting the evidence of Mr Black and rejecting the evidence of the appellant, it was open to the Magistrate to find each of these elements proved beyond reasonable doubt. The Magistrate proceeded on the basis that it is an element of the paragraph (c) limb that the defendant intends to threaten to apply force and intends the victim to believe that the defendant is in a position to carry out the threat and intends to do so or there is a real possibility that the defendant will do so. Although this element is not explicitly included in paragraph (c), I proceed on the assumption in favour of the appellant that it is implicitly included having regard to the inclusion of intention in other limbs of the definition.
The Magistrate did not explicitly address subsection 20(2)(a) which provides that conduct lying 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. However, this issue did not arise if the Magistrate accepted the evidence of Mr Black, in which case the appellant’s conduct could not be regarded as normal social interaction.
The Magistrate implicitly addressed subsection 20(2)(b) because the Magistrate found that the appellant’s actions were without consent and consent would have been the only possible lawful justification or excuse.
A single offence or five offences?
On the hearing of the appeal, the appellant contends that section 20 creates five separate offences coinciding with the five paragraphs of subsection (1). The respondent contends that section 20 creates a single offence of assault. Although this point was not taken by the appellant at trial, I address it on its merits.
The question whether section 20 creates a single offence of assault or five separate offences coinciding with the five paragraphs of subsection (1) is a question of statutory construction.[3]
[3] O'Sullivan v Truth & Sportsman Limited (1957) 96 CLR 220 at 224 per Dixon CJ, Williams, Webb and Fullagar JJ; Romeyko v Samuels (1971) 2 SASR 529 at 552 per Bray CJ (with whom Bright and Sangster JJ agreed).
In Romeyko v Samuels,[4] Bray CJ (with whom Bright and Sangster JJ agreed) said:
The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics.[5]
[4] (1971) 2 SASR 529.
[5] At 552.

In F, BV v Magistrates Court of South Australia & Another,[6] Kourakis CJ (with whom Gray J agreed) said:
The general rule of construction is that where basic conduct is proscribed if it occurs in any one or more of the circumstances prescribe by a statute, only a single offence is created.[7]
[6] [2013] SASCFC 1; 155 SASR 232
[7] At 95.
The structure of section 20 makes it clear that (leaving aside the aggravated forms of the two offences in respect of which is unnecessary to decide) two and only two separate offences are created by the section. Subsection 20(3) creates the offence of assault, which has a maximum penalty for a basic offence of imprisonment for two years, and subsection 20(4) creates the offence of assault occasioning harm, which has a maximum penalty for a basic offence of imprisonment for three years. Subsection 20(1) does not create any offence at all, but merely defines what is meant by the word “assault” in each of subsections 20(3) and (4) which create the offences.
This construction is confirmed by the fact that clearly there can be, and in many cases it is likely that there will be, overlap between the various paragraphs of subsection 20(1) such that any conduct might be characterised as falling within two or more such paragraphs.
Conclusion
Having regard to the whole of the evidence, the appellant has not demonstrated that the guilty verdict is unreasonable or cannot be supported having regard to the evidence.
Other matters
There are no grounds of appeal relating to the conduct of the investigating officer, the police prosecutor or the Magistrate. However, the appellant makes contentions about their conduct, which I address for the sake of completeness and having regard to the fact that the appellant is not represented.
Conduct of the investigating officer
The appellant contends that the investigating officer wrongly recorded in the police apprehension report that the appellant told police that he had said to Mr Black “Why are you doing this to me?” in order to match Mr Black’s account. It is true that the appellant did not during the video recorded interview say that he said these words to Mr Black; rather he said that he said “How dare you lie”. It is also true that Mr Black told police that the appellant said to him “Why are you doing this to me?” However the Police did not tender the police apprehension report and would not normally do so at a trial: it was the appellant who did so. It was not put in cross-examination to Senior Constable Bowden that she deliberately wrongly recorded in the police apprehension report what the appellant had said. It is understandable that she mistakenly confused it with what Mr Black had told her. In any event, nothing turned on the credit or conduct of Senior Constable Bowden.
Conduct of the prosecutor
The appellant contends that the prosecutor made a disrespectful prejudicial comment at the beginning of the trial when she said that the prosecution was going to be relying on the record of interview conducted on 4 May 2016 as the appellant’s version and said:
A little muddled, your Honour.
In her reasons for judgment, the Magistrate said that the sound of the video was faint. Understood in context, the prosecutor was referring to the sound quality as being muddled rather than the appellant’s answers during the recorded interview.
The appellant contends that the prosecutor concealed the police apprehension report as inadmissible evidence. During his cross-examination of Mr Black, the appellant sought to put the police apprehension report before Mr Black and suggest that his evidence was inconsistent with what was recorded in it. The prosecutor objected on the ground that the report was written by the police and not by Mr Black. The objection was valid given that Mr Black’s first statement was the primary source and the police apprehension report was only a secondary source. Even if the objection had not been valid, the taking of the objection would not have amounted to misconduct by the prosecutor.
The appellant contends that the prosecutor maliciously prosecuted the proceeding against the appellant being fully aware of the false accusation made by Mr Black. There is no evidentiary basis for this contention. I note that in any event no application for a stay of the prosecution as an abuse of process on this or any other ground was made by the appellant.
Conduct of the Magistrate
The appellant contends that the Magistrate improperly interfered in the case and developed the prosecution case by asking the police prosecutor at the end of the evidence whether on the prosecution case the appellant’s conduct fell within paragraph (c) or paragraph (e) of the definition contained in subsection 20(1). However, it was appropriate for the Magistrate to ascertain what the prosecution case was in this respect.
The appellant makes a similar contention in relation to an amendment made by the Magistrate to the complaint to change the named subsection 20(3) to subsection 20(1) of the Act. Given that the complaint clearly alleged the offence of assault which is created by section 20 of the Act and subsection (1) defines assault while subsection (3) identifies the penalty, if in law the offence were created by subsection (1), it would not have been improper for the Magistrate to make the amendment. However, as observed above, the offence is in law created by subsection (3) and the complaint did not need amendment in this respect.
The appellant contends that the Magistrate wrongly found that he was annoyed with Mr Black during the District Court hearing on 4 May 2016. The appellant refers to paragraph 5 of the Magistrate’s reasons in which the Magistrate summarised the allegation that the appellant was said to have spoken to and gestured at Mr Black in an aggressive and threatening manner. In context, this was clearly a reference to the allegations and not a finding.
The appellant contends that the Magistrate wrongly found that the appellant gave an untrue version of events, referring to paragraphs 15, 22 and 28 of the Magistrate’s reasons. However, in these paragraphs the Magistrate was merely summarising the evidence of Mr Black, Ms Hamman and the appellant respectively.
The appellant submits that in respect of the matters the subject of the two previous paragraphs the Magistrate disregarded his written evidence being a transcript of the hearing on 4 May 2016. That transcript shows that the appellant took issue with Mr Black’s contention that he was still owed money but is incapable of showing one way or the other what emotion if any was displayed by the appellant.
Conclusion
The appellant has not demonstrated error by the Magistrate vitiating her finding of guilt. I dismiss the appeal.