Parish v Police - [2018] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PARISH v POLICE
[2018] SASC 18
Judgment of The Honourable Justice Lovell
27 February 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Appeal against conviction.
The appellant was convicted of one count of assault causing harm after a trial in the Magistrates Court. Appellant appealed the conviction - whether the Magistrate's reasons were adequate and whether findings made by the Magistrate were open on the evidence.
Held (allowing the appeal):
1. The Magistrate failed to adequately explain his factual findings.
2. Factual findings made by the Magistrate were not open on the evidence.
Order: Conviction set aside and matter remitted to the Magistrates Court for retrial before a different Magistrate.
Magistrates Court Act 1991 s. 42, referred to.
Fox v Percy (2003) 214 CLR 118, applied.

PARISH v POLICE
[2018] SASC 18
LOVELL J:

Mr Troy Parish (“the appellant”) was in a relationship with Ms Marinke Wiggins (“the complainant”). Ms Wiggins alleged that on 10 April 2015 the appellant subjected her to a series of assaults. The appellant was charged with one count of assault causing harm. The matter proceeded to trial for two days in the Magistrates Court. The complainant gave evidence that during the incident the appellant bit her on the left cheek and then on the bottom lip causing the harm alleged by the prosecution. The appellant denied assaulting the complainant or biting her. On 18 November 2016 the Magistrate convicted the appellant of assault causing harm.
On 8 June 2017 the Magistrate sentenced the appellant to a period of 12 months imprisonment with a non-parole period of eight months, the sentence to be served on home detention bail. The appellant appealed the conviction.
Extension of Time
This appeal was filed on 30 June 2017, more than seven months after the appellant was found guilty on 18 November 2016. Permission to appeal is required from 21 days after the original decision is made. The appellant asked for “such extension of time as may be required, if any” in his filed Notice of Appeal.
The respondent submitted that the delay between the Magistrate’s decision and the commencing of the appeal was significant and that at the time of the appeal being heard the appellant had yet failed to adequately explain the delay. The Appellant eventually submitted material explaining the delay after the appeal had been heard. In its written reply to the further material the Respondent maintained its objection to an extension of time.
On 21 November 2016 counsel for the appellant sent a letter to her instructing solicitor which included acknowledgment of the 21 day period in which to initiate an appeal. Material provided to this Court establishes a miscommunication then occurred between the appellant and his lawyers. Despite that misunderstanding there was still a failure to lodge an appeal within 21 days from delivery of the sentence on 8 June 2017, as the notice was lodged on 30 June 2017.
The delays in this matter are most unfortunate. However I am satisfied that the appellant was not fully informed of the need to lodge an appeal within 21 days of the date of Judgment. The grounds of appeal are reasonably arguable and the appellant would clearly suffer prejudice if the extension of time was not to be granted.
I grant the extension of time.
Principles on Appeal
The appellant’s right of appeal against conviction arises pursuant to section 42 of the Magistrates Court Act 1991 and is by way of rehearing. It is not an appeal de novo and usually proceeds on the documents albeit with power to receive further evidence. The court hearing the appeal is required to conduct a real and independent review of the evidence put before the magistrate and come to its own conclusions.[1] The court however must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence given at trial. The court should always bear in mind that it did not hear or see the witnesses and it should not interfere with a magistrate’s findings of fact unless they are demonstrated to be wrong by “‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”.[2] As the plurality stated in Fox v Percy: [3]
In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
(Citations Omitted)
[1]    Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141 at [38]-[39] (White J); Pol v City of Port Adelaide Enfield [2017] SASC 116 at [15] (Nicholson J).
[2]    Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 687 (French CJ, Bell, Keane, Nettle and Gordon JJ).
[3]    Fox v Percy (2003) 214 CLR 118, 128 [29] (Gleeson CJ, Gummow and Kirby JJ).
Overview
The Notice of Appeal contains 10 grounds of appeal. Many relate to errors of fact allegedly made by the Magistrate. Given my findings it is not necessary for me to deal with all grounds.
The Magistrate was faced with what can be described generally as an “oath against oath case”. When assessing the credibility and reliability of the complainant the Magistrate relied upon the evidence of two prosecution witnesses, Dr Koo and Senior Constable Kuchel, to provide “significant and independent support for the victim’s version of events”. He also found that the evidence of those two witnesses did “not support the defendant’s version of events”. These two findings were crucial to his ultimate acceptance of the complainant’s evidence and the finding of guilt.
The main grounds of complaint are that the Magistrate failed to; take into account evidence which supported the appellant’s case; adequately explain his reasoning for the factual findings he did make and take into account or give proper weight to the evidence of the defence witness Mr Doug Kench. The appellant submitted that the Magistrate erred in relying on the evidence of Dr Koo and Senior Constable Kuchel.
For the reasons that follow I agree with the appellant’s submissions and the appeal must be allowed.
Review of the Evidence
I set out the important parts of the evidence. It is not necessary for me to discuss all of the evidence.
Evidence of the complainant
The complainant gave evidence that she and the appellant had been in a relationship for about six years before the incident in question. From about mid -June 2014 she used to stay with the appellant “off and on”. The appellant lived in a house near Auburn; the house was owned by his aunt and uncle, Janet and Doug Kench.
The complainant spent the night of the 9 April 2015 with the appellant. Two of her children, ‘L’ and ‘J’, slept there as well. They were aged approximately 11 or 12 and 13 years old respectively. The complainant also had a daughter ‘C’ but at that time she was living in Victoria.
At around 9am the complainant woke up as “Troy had been banging round quite loudly in the kitchen”. The appellant and the complainant had an argument about ‘C’ and then matters “escalated”. The complainant said she wanted to leave. She “grabbed her stuff”, her children and went to get her laptop but decided to go to the toilet first. She went to the laundry to get her “dirty clothes” but “didn’t quite make it” as the appellant hit her from behind. This incident occurred between the toilet and the laundry area. She fell to the ground. The appellant hit her a few more times to the back of the head. He then grabbed her hair and “pushed her head into the ground and into the wall.” The complainant remembered that her head hit the concrete floor. The complainant then alleged that “he continuously hit my head against the wall and the floor”. She asked him to stop. She said she just wanted to leave. He bent over and bit her on the left cheek.
The complainant said that by this time the appellant had “started to work up a sweat” and went and “dried himself off in the bathroom”. The complainant started to make “her way up the hallway” when the appellant “came back again”. He hit her in the back of the head once and about four further times to the “stomach or the ribs”. She fell to the ground. This occurred in the hallway.
When on the ground the appellant put one hand around her neck and the other hand across her mouth and nose. He threatened her by saying she wasn’t going to see her children and that she was “gonna go to sleep”. She had difficulty in breathing.
He then bit her lip and told her that he loved her. She said “that is not what love is”. The appellant let her go and then there was a knock at the door which he answered. It was the appellant’s uncle Doug Kench.
The appellant went to his bedroom after opening the door. With the front door open the complainant left the house and walked slowly towards her car passing Mr Kench on the way. Mr Kench by this stage was standing by the gate “near his ute”. She looked at Mr Kench “to like say thank you”.
Mr Kench drove off and the appellant approached her car. He told her to go “fetch her children” and “to come back”. She said no, “that was it”. The complainant then collected the two children from the dairy. The complainant had her children then ring two of her friends and arranged to meet them at the park in Auburn. On meeting at the park one friend looked after the two children and the other took the complainant to the Clare Hospital.
Under cross examination the complainant agreed that two nights before the alleged assault her car had run out of petrol while she was travelling home to the appellant’s house. She rang the appellant’s mobile telephone but he did not answer. When she arrived home he told her he had been asleep and not heard the telephone ring. She denied she was angry about that. It was part of the appellant’s case that the complainant was angry with him about that incident. She denied that on the morning of the 10 April 2015 she was angry because the dog had made a “mess” and she had to clean it up. She denied starting an argument that morning with the appellant and striking him on the side of the head with a plate.
When cross examined about the hospital attendance the complainant stated she arrived at about 5pm. I quote the evidence on this topic as it is relevant to topics discussed later.
Q.And you got to the hospital at what time.
A.About 5. It went on for about four hours.
Q.What, sorry.
A.The beating went for four hours.
Q.Four hour beating.
A.Roughly, yes.
QWhen you spoke to police on 10 April 2014, you never mentioned that you’d been beaten for four hours did you.
A.If you worked out the timeframe, that’s how it worked out to be.
Q.So are you saying from the time that you allege you were hit in the lobby area til the time you got out of the house and saw Doug Kench, four hours had elapsed.
A.About that.
Q.And you say it starts at about 10 o’clock in the morning.
A.Yep.
Q.So that would take it till about 2 PM and your children were in the house this whole time.
A. I gather, or up at the dairy. I have a safety plan.
Q.Going back to the lobby area.
A.Yes.
Q.How long do you say the beating went on for in the lobby.
A. A long time.
Q.How long is a long time.
A.A long time, enough for you to actually almost stop breathing and not move.
Q.Are we talking five minutes, 10 minutes, one hour, how long.
A.More than an hour, more than two.
Q.More than two hours in the lobby.
A.Yes.
Q. The whole time this is going on, do you say that Troy is in there beating you.
A.Yes.
Q.And that’s continual, is it for the two hours.
A.More or less, yes.
Q.And then you say he’s worked himself up into a sweat.
A.Yes.
Q.And has to go and wipe himself down.
A. Yes.
Q.Did you see him wiping himself down.
A.Yes, I did.
Q.What were you doing at that time.
A.Lying down in a foetal position.
Q.So you see him wiping himself.
A.Yes.
Q.What do you do.
A.I lay there.
Q.How long did you lay there for.
A.Until he dried himself off and he came back which wasn’t long.
Q.When he comes back, what did you do.
A.I asked him to let me go, let me leave.
Q.In that lobby area, looking at P2 again, if we look at the top of the lobby area there’s a door that goes out, is that correct.
A.As in the back door?
Q.Yes.
A. Yes.
Q.Why didn’t you go out that back door.
A.You can’t.
Q.Why not.
A.It’s a padlock.
Q.Where’s the padlock.
A.Top and bottom.
Q.You’ve never mentioned anything about being unable to exit that door before now, have you.
A. Yes, I have.
Q.Who did you tell that to.
A. I’ve said that to the police once before.
Q. Which police.
A.Clare police.
The complainant identified Senior Constable Kuchel as the person to whom she made the statement. She was in hospital at the time she spoke to Senior Constable Kuchel. Senior Constable Kuchel, when he gave evidence, denied she said this to him.
I pause to note that the complainant was alleging that she was “beaten” by the appellant for up to four hours. Clearly this evidence caught counsel for the appellant by surprise as the cross examination quoted above demonstrates. No doubt it caught the prosecuting counsel by surprise as well. However, upon further cross examination, the complainant maintained that the beating occurred for a long time, sufficiently long for the appellant to have worked up a sweat.
The evidence in chief, and indeed the prosecution case, was based on the assumption that the events in question were so closely connected in time and place as to be a continuous course of conduct such that one count of assault causing harm could be laid. Clearly this evidence seriously undermined that assumption.
The complainant agreed that Mr Kench knocked at the door and that the appellant went and spoke to him. She agreed that she had to walk past him to get to her car. The complainant agreed that she didn’t make any complaint to Mr Kench about what had just happened.
The complainant denied the appellant’s version of events that was suggested to her in cross examination.
There was no re -examination by the prosecutor on the topic of the time period of the alleged assault.
Evidence of Dr Koo
Dr Koo examined the complainant at the Clare Hospital at 2.35pm. Dr Koo had access to the hospital notes and by referring to the notes she was able to say that the complainant arrived at the Hospital at 1.50pm. At that time the complainant spoke to the triage nurse. Dr Koo, when asked about her examination stated:
Q.Just your observations on that day when you saw her.
A.On examination tender above left ear not boggy ears.
Q.I will get you to slow down.
A.Ears are normal, tender upper cervical spine, laceration over left lower cheek. Tender right lower mandible. Mouth was normal. Shoulders were normal, good range of motion. Bite marks, i.e. circular red raised lesions.
Objection.
Discussion.
…
Q.What led you to believe or your observations that it was a bite mark.
A.In my notes I’ve written that they were circular and red and raised and they looked human sized to me as in they weren’t really large or they weren’t really tiny and so well normally with an examination I ask the patient what they look like bite marks to me and she confirmed that they were.
Q.Can you continue on with your observations.
A.So the bite marks I’ve written here; left posterior axilla, left middle upper arms, tender also with a small bruise; right humerus near right axilla, right forearm. She also had spinal tenderness over the thoracic level T5 and T10. Tender left flank abdomen, soft, tender no obvious bruising. Hips and lower limbs lower range of motions reduced sensation to both feet. Multiple scratch marks, I’ve put here possibly scabies.
When cross examined Dr Koo accepted that she was not trained in odontology. She agreed that she was not able to “give an analysis” of what may have caused a mark relying solely on what she observed because she also relied on the history given to her by the patient. Dr Koo, in her capacity as a general practitioner, had seen the complainant previously.
Importantly, Dr Koo did not describe the mark on the left cheek of the complainant as a bite mark. She described it as a laceration. Photographs tendered by the prosecution clearly indicate that the mark on the left cheek, which can be seen in photographs one, six and seven of Exhibit P1, is linear not circular. Dr Koo did not include the cheek or lip in her description of where on the complainant’s body she observed the bite marks. Further Dr Koo found no abnormality in the mouth area. The mark that can be seen on the right section of the complainant’s lower lip in photographs one, two, four and five of Exhibit P1 is also linear not circular. Dr Koo was not asked to look at the photographs when she gave her evidence.
Dr Koo has noted a possible bite mark occurring on the back left armpit of the complainant (photograph 13 of Exhibit P1). The other marks described are not obvious in the photographs. Dr Koo’s evidence does not support the evidence of the complainant that she was bitten on the cheek and on the lip. To the contrary Dr Koo’s evidence is inconsistent with the complainant’s evidence.
The complainant in her evidence did not describe having being bitten in the areas described by Dr Koo. Dr Koo was not asked if the marks she identified as possible bite marks were consistent with them having occurred at the time of alleged assault. It may be that she would have been unable to do so had she been asked.
Dr Koo recorded that Ms Wiggins complained of tenderness in various areas of her body during the course of the examination. Tenderness is a report of a subjective symptom; it cannot be objectively assessed. She was not asked to describe the demeanour of the complainant during the course of the consultation at the hospital.
Evidence of Senior Constable Kuchel
At 5pm on the 10 April 2016 Senior Constable Kuchel attended at the Clare Hospital and took a statement from the complainant. He said he spoke to her for quite some time. He noted that she was “flighty and scared crapless by the looks of it”. Senior Constable Kuchel said that her “eyes were going and she was had that startled, sort of, scared look about her.”

Senior Constable Kuchel agreed in cross examination that the complainant did not tell him at any time that she could not get out of the back door of the farm house because it was padlocked. This was contrary to the evidence of the complainant.
Evidence of the Appellant
The appellant gave evidence that the complainant was angry with him on the morning of the 10 April 2015. There was a discussion about the dog “mess” and also about the complainant’s daughter ‘C’. During the argument the complainant became angry, picked up a plate and struck the appellant on the side of the head. She said she was going to leave. As he walked up the hallway the complainant grabbed him around the throat. He threw his head back and may have made contact with her nose. There was a struggle and they fell to the ground. The appellant landed on his stomach and the complainant was on top of him. It was then he heard Mr Kench’s ute arrive. He said he thought the struggle, starting with the incident with the plate and concluding with the appellant and the complainant on the floor of the hallway, would have taken about five minutes.
The prosecutor complied with the rule in Browne v Dunn[4] and put the complainant’s evidence to the appellant for his comment. He did not suggest to the appellant that the incident took a few hours. The appellant denied assaulting her and denied biting her on the cheek and the lip. He denied getting angry when hit on the head with the plate. He agreed that when Mr Kench turned up he did not complain about Ms Wiggins’ behaviour.
Evidence of Mr Kench.
[4] (1894) 6 R 67.
Mr Kench was called as a witness by the appellant; he is the appellant’s uncle.
On 10 April 2015 he was working on a neighbour’s “air seeder”. He received a call at 12.06 pm from Mr Allen. He did not answer the call but Mr Allen left a message. In the message Mr Allen said that the complainant’s son had rung him and told him (Mr Allen) there was a fight going on and that there was blood everywhere.
Mr Kench left to drive to the appellant’s property. Mr Allen rang again at 12.11pm and this time Mr Kench answered the telephone. He told Mr Allen he had listened to the message and was on his way “over there”. He had to drive a little over a kilometre to get there.
As he approached the house he saw the complainant’s son ‘J’. He spoke to him and ‘J’ repeated the information. As he arrived the appellant came out of the house. Mr Kench asked if everything was ok and the appellant told him he would speak to him later about it.
The appellant went back into the house and shortly after that the complainant came out of the house. Mr Kench observed that she “was showing signs of rage”. She was red faced and had a “black eye look”- a fierce eye look. She went back inside and then came back past him again. The complainant got in her car and drove off. She made no complaint to him.
Mr Kench did not go inside the house. He did not see any blood when he was at the property including on the complainant and the appellant.
Mr Kench had been a member of the local CFS for 27 years. As part of his training he had been taught to make notes of “incidents”. He recorded the times of the phone calls and made notes of his observations. His notes were tendered.
It was suggested to Mr Kench in cross examination that his notes do not record that “she had a look of rage”. He agreed that those words did not appear in his notes. Examination of the notebook reveals that he recorded that the complainant had a “rageface”.
The evidence of Mr Kench was not seriously challenged in cross examination. It was not suggested directly that his evidence was in any way affected because he was the appellant’s uncle.
The approach of the Magistrate
The Magistrate summarised the facts as follows:
I find proven beyond a reasonable doubt that the defendant struck the victim from behind to the back of her head as she walked towards the laundry. She then fell to the ground as a result and whilst on the ground the defendant struck her again to the back of the head, pulled her hair and forced her head against both the wall and the floor. The defendant then bent over and bit the victim on her left cheek. After the defendant had got up and taken himself to the bathroom for a short period of time he again struck the victim a number of times in the vicinity of the hallway. He then grabbed her around the neck with his other hand covering her nose and mouth and then at about that point, bit her on the lip.
Those are the facts that I find proven. I find the defendant guilty as charged.
The Magistrate noted, earlier in his reasons: “Magistrates quite often feel obliged to meticulously and thoroughly summarise each and every aspect of the evidence presented at a trail such as this”. The Magistrate noted that he had resolved to adopt a “somewhat simplistic and straight forward approach” to his giving of reasons. I have assumed he meant that he did not intend to go through the evidence of the witnesses in detail.
I agree with the Magistrate that it is not always necessary to summarise “each and every aspect of the evidence”. Some judicial officers find it helpful to do so as such a procedure can help resolve (or not) various issues in the mind of the writer. However it is not necessary to do so. The reasons however must be adequate. Simply summarising the evidence, without more, would not amount to adequate reasons.
What will amount to adequate reasons depends largely upon the forensic contest.[5] Generally a judge or magistrate should not only state the principles of law to be applied and the facts found, but also state “the reasoning process linking them and justifying the [findings of fact] and, ultimately, the verdict that is reached.”[6]
[5] R v Becirovic [2017] SASCFC 156.
[6] AK v Western Australia (2008) 232 CLR 438, 453 [44]; 454 [48] (Gummow and Hayne JJ); R v Riccardi [2017] SASCFC 128.
Reasons are not necessarily adequate because they reveal a chain of reasoning leading to a conclusion. A conclusion is not to be drawn from a collection of convenient facts that lead inevitably to that particular result. What is required is a careful assessment of all of the relevant facts, and where necessary, an explanation as to how the ‘inconvenient’ facts can be put to one side or given little weight.
I understand that the Magistrates Court is a very busy jurisdiction and that time to write judgments is accordingly limited. As stated I agree with the Magistrate that recitation of all of the evidence is often unnecessary. However reasons will usually need to contain some engagement with, and analysis of, those parts of the evidence that are disputed. Analysis of the important conflicts in the evidence and how they have been resolved will generally be necessary to underpin the final conclusions reached. Reasons do not need to be lengthy. What is required is that the reasons are sufficient for the appellate court to discharge its function.
For the reasons that follow I find that the Magistrate failed to provide adequate reasons. The problem was not that he failed to summarise in detail the evidence of the various witness; rather the problem lies in the fact that he has failed to analyse disputed evidence and provide reasoning as to how he reached a number of his final conclusions. Further on a review of the evidence his conclusions in relation to Dr Koo and Senior Constable Kuchel are not supported by the evidence.
The Reasons of the Magistrate
There are two areas where the Magistrate has failed to provide adequate reasons. They relate to grounds of appeal 3.2 and 3.8.
Ground 3.2
The evidence of Dr Koo and Police Officer Kuchel
The Magistrate, in his reasons found that the complainant was a credible and reliable witness. A significant factor in his assessment of the evidence of the complainant was his finding that the evidence of these two witnesses provide “significant and independent support” for the complainant’s version of events and do not support the appellant’s version of events.
In his reasons the Magistrate stated:
I have developed a very firm view as to the evidence that I’ve heard in relation to this matter. I make it clear at this very early stage of my reasons that I accept the victim’s evidence. I accept that she is a credible and a reliable witness, and where her evidence conflicts with the evidence of the defendant, I reject the defendant’s version of events.
A significant factor in me accepting the victim’s version is the observations and evidence given, particularly by Police Officer Kuchel and by Dr Koo. It is my firm view that the evidence of those two witnesses in particular provide significant and independent support for the victim’s versions of events and do not support the defendant’s version of events. (My underlining)
I found the victim to be a believable, credible and reliable witness. I note the criticisms made of her and I note the cross examination of her on various topics, and I note the inconsistencies referred to by defence counsel, but they do not cause me concern such as to doubt her credibility and reliability as to the events of the day in question.
There are aspects to her evidence that she is clearly wrong about. I make specific reference to the time period over which she claims the assault occurred. Clearly, she is wrong about that but in my view that is understandable in the circumstances, given what I am satisfied was occurring to her at the time. Issues associated with whether doors were open and locks were in place and exactly what occurred when she was able to get herself out of the premises after the witness Kench arrived, I repeat, do not cause me concern as to accepting her evidence as to what had occurred inside the premises earlier.
I do pause at this stage to note, of course, that the defendant is facing only one charge of assault. Prosecution have pitched their case and the evidence of the victim is very much that there was a series of assaults, in other words, a course of conduct that constitutes that one formal count. I note her evidence regarding what occurred.
The Magistrate has explained clearly that he arrived at his ultimate finding by relying on the evidence of Dr Koo and Senior Constable Kuchel to supply significant and independent support to the complainant’s evidence. That is where his analysis stops. The Magistrate did not explain what parts of the evidence he relied on and how those parts of the evidence supported his conclusions.
I have already set out the evidence of Dr Koo earlier in these reasons.
The complainant gave evidence that the appellant bit her on the left cheek and later on the lower lip. The Magistrate found specifically that the appellant bit the complainant as she alleged.
Dr Koo, however, did not describe the mark on the left cheek of the complainant as a bite mark. She described it as a laceration. When questioned about the bite marks Dr Koo said the marks were “circular and red and raised”. Photographs tendered by the prosecution clearly indicate that the mark on the left cheek which can be seen in photographs one, six and seven of Exhibit P1 is linear not circular. Further Dr Koo found no abnormality in the mouth area. The mark that can be seen on the right section of the complainant’s lower lip in photographs one, two and four of Exhibit P1 is also linear not circular. Dr Koo was not asked to look at the photographs when she gave her evidence. Dr Koo’s evidence does not support the evidence of the complainant that she was bitten on the cheek and on the lip.
Importantly, Dr Koo described the location of where she saw what she considered were bite marks. She stated:
So the bite marks I’ve written here; left posterior axilla, left middle upper arms, tender also with a small bruise; right humerus near right axilla, right forearm. She also had spinal tenderness over the thoracic level T5 and T10. Tender left flank abdomen, soft, tender no obvious bruising. Hips and lower limbs lower range of motions reduced sensation to both feet. Multiple scratch marks, I’ve put here possibly scabies.
The marks identified by Dr Koo were located on the left armpit, middle upper arm, right armpit and right forearm but not the cheek or lip. If other marks were bite marks then the complainant gave no evidence as to whether and if so how they occurred during this incident. Dr Koo did not attempt to “age” the marks she observed. It may be that she would have been unable to do so had she been asked. It may be that the marks identified by Dr Koo were unrelated to the incident on 10 April 2016.
Further Dr Koo accepted that in making the diagnosis of the marks she identified as being bite marks she relied to an extent on what she was told by the complainant. To that extent her findings are not “independent” of the complainant.
Dr Koo recorded that Ms Wiggins complained of tenderness in various areas of her body during the course of the examination. Tenderness is a report of a subjective symptom; it cannot be objectively assessed. Dr Koo’s evidence cannot be said to be an independent finding of an injury to that area; it can only be used to show a consistency of complaint.
When rejecting the evidence of the appellant the Magistrate found, in relation to the evidence of Dr Koo that the “injuries are consistent, and in my view only consistent with the version given by the victim” (underlining by the Magistrate). The Magistrate does not explain how he reached that conclusion. If it was an acceptance that Dr Koo supported the complainant’s evidence about being bitten on the cheek and lip then he was in error. Rather than support the prosecution case it was inconsistent with it. There is nothing in the other parts of Dr Koo’s evidence which would enable the Magistrate to find support for the complainant’s version of events as opposed to the appellant’s version. The suggested areas of tenderness are consistent the description of events given by the appellant. The laceration to the cheek could be consistent with the appellant’s evidence.
I accept that the evidence of Dr Koo supported the conclusion that at some stage the complainant may have been bitten. However the appellant was charged, and the case conducted on the basis, that, the appellant bit the complainant on the cheek and lip; he was not asked to meet any other case.
Dr Koo was not asked to describe the demeanour of the complainant during the course of the consultation at the Hospital.
I turn to the evidence of Senior Constable Kuchel. The Magistrate did not explain how the evidence of Senior Constable Kuchel provided independent support for the complainant’s evidence.
Senior Constable, who took a statement from the complainant at about 5pm on 10 April 2016 gave evidence in chief in relation to two matters. He observed that she had a “sore” on the lip. As discussed the “sore” on the lip cannot provide independent support for the complainant. Senior Constable Kuchel also gave evidence of the “distress” of the complainant in that he said she looked scared, flighty and startled.
Distress is a form of circumstantial evidence which can be used by a trier of fact as independent evidence supporting a complainant’s evidence.[7] However caution must be used when using evidence of “distress” if there are multiple possible causes of the observed distress or if the observed distress is too remote or tenuous.[8] The evidence is not rendered inadmissible simply because of competing theories as to its cause.[9] The trier of fact needs to consider all possible causes of the distress.
[7] R v Redpath (1962) 46 Cr App Rep 319.
[8] R v Schlaefer (1984) 37 SASR 207; R v Link (1992) 60 A Crim R 264.
[9] R v Mitrovic [1999] SASC 478.
Matters which the Magistrate needed to consider were; the interval between the alleged offending and the distress; the circumstances at the time of the distress; and the conduct and the appearance of the complainant between the alleged offence and the observed distress. The observations of Senior Constable Kuchel were made almost five hours later than those of Mr Kench. Mr Kench made the observation that the complainant was in a rage. He gave no evidence that she was distressed. This apparent contradiction needed to be explained.
A further difficulty for the prosecution in using “distress” is that Dr Koo saw the complainant in the hospital earlier in afternoon. She did not give evidence that the complainant was distressed. The complainant was previously known to Dr Koo. The complainant herself did not give evidence that she was distressed when she saw Senior Constable Kuchel.
Even on the appellant’s evidence the complainant could have been “scared and flighty” after having been involved in an altercation. Giving a statement to the police can be a stressful event. The complainant was separated from her children. Distress can of course be feigned.
The Magistrate’s reasons do not demonstrate the he considered the inconsistencies between Dr Koo and Mr Kench’s observations and those of Senior Constable Kuchel. Nor do his reasons disclose that he had regard to the fact that Senior Constable Kuchel’s observations were some five hours after the event or that there may be competing explanations. It may be that the Magistrate did consider those matters but his reasons do not say so.
The evidence of distress from Senior Constable Kuchel was of limited weight given the time and circumstances of his observations. The Magistrate was required to explain how in the absence of evidence of “distress” from the two witnesses who saw the complainant earlier in the day he was able to find “significant independent support” for the complainant’s evidence.
The Magistrate has not, in his reasons, identified what aspects of the evidence of Dr Koo or Senior Constable Kuchel he relied on for his finding of “significant independent support” for the complainant. His reasons state conclusions rather than an analysis of how he has reached those conclusions. The conclusions are fundamental to the resolution of the case. To that extent the reasons are inadequate.
In any event, particularly in relation to Dr Koo’s evidence, that finding was not open. This finding was fundamental to the Magistrate’s credit findings in relation to the complainant. The finding that the evidence of the complainant was credible and reliable must be overturned. The appeal must be allowed on this ground.
Appeal Ground 3.8
The evidence of Mr Kench
There is considerable overlap between the two grounds.
The evidence of Mr Kench was relevant in two ways. First he gave evidence that the appellant looked calm when first seen. Secondly, as discussed above, he gave evidence that the complainant looked angry when she walked out of the house, that is, not distressed.
In relation to Mr Kench the Magistrate stated:
For the sake of completeness I note the evidence of the witness Kensch (sic) given on behalf of the defendant. Again, in simple terms, his evidence does not have a significant impact on my ultimate decision. No aspect of his evidence leads me to doubt the reliability of the victim.
I note a couple of comments as part of his evidence which cause me some concern. I note his reference to the victim having “a look of rage” when she walked past him outside, and I also note his comment that “funnily enough the lad (obviously referring to ‘J’) didn’t appear too distressed.” I find both of those comments and observations to be inconsistent with my findings. Perhaps there is an element of his relationship with the defendant somewhat colouring his descriptions of his observations at that time, but I make no formal finding in that regard. I repeat, in simple terms, the evidence of the witness Kensch (sic) does not play a significant role in my determination.
There are aspects of the Magistrate’s reasons that require comment. The Magistrate referred to the relevant evidence of Mr Kench as having caused him “some concern” before finding that the evidence of Mr Kench did not have a significant impact on his ultimate decision The Magistrate found the comments and observations made by Mr Kench to be “inconsistent with his findings”.

With respect to the Magistrate they are inconsistent and that inconsistency needed to be resolved before he made any findings. The Magistrate did not explain how he was able to dismiss the evidence of Mr Kench. A vague reference to the fact that Mr Kench was the appellant’s uncle and that this may have coloured his observations (a proposition not put to Mr Kench) is not a sufficient explanation to put the evidence aside. The fact that Mr Kench made notes of his observation of the complainant at the time was not discussed by the Magistrate. As mentioned earlier the evidence of Mr Kench was not disputed.
It was not sufficient for the Magistrate to simply conclude that the evidence of Mr Kench did not play a significant role. It was important evidence and inconsistent with part of the prosecution case. The Magistrate was required to explain why he formed that conclusion. He failed to do so and his reasons are inadequate in that regard.
I would allow the appeal on this basis as well.
I note in passing that the way the Magistrate expressed himself in relation to Mr Kench’s evidence could indicate that he made findings on the credibility of the complainant before turning to the defence evidence. That is, the Magistrate has considered the evidence “piecemeal” as opposed to looking at all of the evidence in the case. I accept that it is unlikely that the Magistrate undertook the task in this manner. However when discussing the burden of proof the Magistrate stated:
It is relevant for my purposes in this matter to remind myself also that a mere preference, perhaps, for the evidence presented by the prosecution is not enough to establish his guilt beyond reasonable doubt. There must be a complete rejection of the defendant’s version as a reasonable possibility for him to be found guilty.
That direction is incomplete.
The resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole (including evidence called by a defendant) proves the elements of the offence beyond reasonable doubt. The question to be decided is whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. Even if a judge or magistrate is not persuaded by a defendant’s evidence, he or she cannot convict unless satisfied that it is not reasonably possibly true. A total rejection of a defendant’s case does not mean that the defendant must be found guilty. The judge or magistrate must still consider the rest of the evidence and assess whether the prosecution has proved the case beyond a reasonable doubt. [10]
The timing of the alleged assault
[10] R v Helps (2016) 126 SASR 486; R v Douglass (2012) 86 ALJR 1086.
Given my findings it is unnecessary for me to consider all of the grounds of appeal. However as the issue of the length of time over which the alleged assault took place occupied some time on the appeal hearing I make the following observations.
The evidence in chief of the complainant suggested that the incident in which the blows were struck and injuries inflicted took no more than a few minutes. The complainant was not asked during her evidence in chief to estimate the length of time over which the incident occurred.
I have set out earlier the cross examination of the complainant on that topic. Initially she said the incident took approximately four hours. On further questioning the complainant appeared to retreat from that position saying that it took a “long, long time” and that the incident took “more than an hour, more than two”.
Various times can be ascertained with a degree of certainty. Mr Kench received the calls from Mr Allen at 12.06 pm and 12.11 pm. The timing of the calls was not disputed. He attended at the appellant’s house shortly after 12.11pm. The complainant arrived at the Hospital at 1.50 pm. The complainant stated that the incident started at about 10am. The complainant alleged that the “beating” went on so long that the appellant worked himself “into a sweat” and had to go to the bathroom to dry himself off.
The difficulty for the prosecution is that the complainant was certain of the length of time the incidents took. The discrepancy is not, for example, the difference between an estimation of five minutes compared with 10 minutes. Here the discrepancy, if it be one, is a matter of hours. The discrepancy raised the question of the credibility and reliability of the complainant.
Clearly the Magistrate was alive to the issue of the length of time of the alleged assault. He concluded that “she is clearly wrong about” that issue. The Magistrate excused her time estimate on the basis that it was “understandable in the circumstances, given what I am satisfied was occurring to her at the time”. It does not necessarily follow, that if she was being assaulted by the appellant, that she got the timing wrong. It could be the case that the argument between her and the appellant and the alleged assaults took longer than the evidence in chief would suggest. The time estimate may be correct but the complainant has not accurately described all the events in question. Of course, that would have impacted on her reliability and credibility.
While it can be accepted that any assault would be traumatic for the complainant the difference between an assault of a few minutes and a beating that occurred for some hours arguably required more explanation or analysis other than a conclusion that she was “wrong”.
Conclusion
The issues at trial were largely to be determined by an assessment of the credibility of the complainant and the appellant. The findings of the Magistrate, for the reasons discussed, must be set aside.
I am not in a position to assess the credit issues simply from the transcript. The matter must be remitted to the Magistrates Court for a retrial before a different magistrate.
Order
The conviction is set aside and the matter remitted to the Magistrates Court for retrial before a different magistrate.