Peters v Commissioner of Police - [2025] SASC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
PETERS v COMMISSIONER OF POLICE
[2025] SASC 33
Judgment of the Honourable Justice Hughes
18 March 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - GENERALLY
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS
The appellant was convicted in the Magistrates Court of trespass and assault, both of which arose from the same course of events where she attended uninvited at the house of her former partner in order to see her children. During an altercation, the appellant bit her former partner’s new partner twice on the thigh. The Magistrate recorded convictions for both offences and imposed fines.
The appellant sought to bring an appeal, out of time, against the assault conviction, and the sentence imposed for both offences.
The appeal for conviction was brought on several appeal grounds which alleged errors by the Magistrate in relation to receipt of and treatment of evidence, and assessment of credit. The appellant also contended that the Magistrate should have recused himself from hearing the trial based on apprehended bias. The appeal against sentence alleged that convictions should not have been recorded.
Held, allowing the extension of time, but dismissing both appeals:
1. Although the Magistrate had heard a preliminary hearing involving the appellant on a different matter, he did not recall her and there was no basis upon which a fair minded lay observer might conclude that the Magistrate might not bring an impartial mind to the proceedings. The appellant admitted biting the complainant. The Magistrate found beyond reasonable doubt that the appellant had not acted in self-defence. No error in respect of the use of the evidence was established.
2. The Magistrate’s discretion was not shown to have miscarried. Given the circumstances of the offending and the appellant’s antecedents, it was open for a conviction to be recorded. The possible consequences for the appellant were attributable to the conduct and not the conviction.
Magistrates Act 1983 (SA) s 42(4); Criminal Law Consolidation Act 1935 (SA) s 15, s 20(3); Summary Offences Act 1953 (SA) s 17A(1); Sentencing Act 2017 (SA) s 23, s 24, s 97; Joint Civil Rules 2022 (SA) r 188.4, r 191.1(1)(c), referred to.
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; Charisteas v Charisteas (2021) 273 CLR 289, applied.
Manuel v Police [2010] SASC 169; House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; Joseph v Police [2020] SADC 218, considered.

PETERS v COMMISSIONER OF POLICE
[2025] SASC 33
Criminal

HUGHES J: The appellant, Ms Peters, appeals against a conviction for assault. She also appeals against a sentence imposed on her for that assault and for a trespass committed on the same day. The Magistrate recorded convictions for both offences and imposed fines.
For the reasons that follow, both appeals are dismissed.
Background to both appeals
The appellant was, at the time of the events giving rise to the charges (July 2021), a 38-year-old woman with two children, TB aged 12 and LB aged 11. The appellant and the children’s father, Mr Blank, were at that time (and remain) separated and involved in Family and Federal Circuit Court proceedings. Mr Blank had by that time re-partnered with Ms Biedrzycki. Mr Blank, Ms Biedrzycki and the two children lived at a rented house in Ascot Park.
On the afternoon of Friday 23 July 2021, the appellant went to the Ascot Park premises. It was then that the events giving rise to the charges occurred.
The background to the appellant’s attendance at the premises was an ongoing dispute between she and Mr Blank about access between the appellant and the children. The appellant and Mr Blank separated in 2012, and the children initially lived with the appellant. The parties were involved in proceedings in the Family and Federal Circuit Court with respect to parenting orders. In late 2020, the children were removed from the appellant’s care by the Department for Child Protection, and they went to live with Mr Blank. The relationship between the appellant and Mr Blank was not cordial.
The appellant and Mr Blank entered into a “parenting plan agreement” on 5 July 2021.[1] Its preamble states:
As the parents of [TB] and [LB], we, Jodylee Peters and Nicholas Blank, have reached agreement regarding their care, welfare and development.
[1] Appeal Book 235. Exhibit P 1. A further, more legible copy of P 1 than appears in the Appeal Book was handed up during the appeal hearing.
The agreement provided that:
As parents of [TB] and [LB], we are responsible for
a.   cooperating with each other to make decisions that are in their best interests
b.   protecting them from witnessing parental conflict
c.   attending to their developmental needs as they grow older
d.   providing emotional and physical care.
The terms of the agreement were:
1. [The children] will meet with Mum after school in the park or at the café every Friday.
2. When they feel comfortable to do so, [the children] will spend time with Mum at her house on Fridays after school, and at other times as they wish.
3. While the children are at Mum’s, she agrees to be present with them, and to not have other people around.
4. As [the children’s] parents, we agree that we will not denigrate the other parent to the children, or allow others to do so.
5. We will make every effort to address adult issues between ourselves, and not share them with the children.
6. We will communicate directly with each other when necessary, and not use the children to carry messages between us.
7. We will make every effort not to put unfair burdens of responsibility on the children to make decisions, while also giving them a voice, and showing respect for their experiences.
8. We will strive to give [the children] the freedom to love and be loved by both of us.
9. We agree to enrol the children in the iKiDs program.
The arrangement broke down almost immediately.[2] There was an incident on Friday 16 July, one week before the events giving rise to the charges where one of the children messaged Mr Blank from the appellant’s house telling him that the appellant’s friend, Dan, was there and that the appellant was ‘begging’ the children not to tell Mr Blank.
[2] AB 256. Exhibit P 4, text messages between the appellant and Mr Blank.
Mr Blank responded by sending a text to the appellant telling her that she had broken the parenting agreement and that he considered it abandoned. He collected the children and took them home. The following Friday, on 23 July 2021, Mr Blank did not facilitate the children going to spend time with the appellant. This led to the appellant attending at the Ascot Park house later that afternoon 23 July 2021 and the events giving rise to the charges unfolding.
The undisputed findings of the altercation at the Ascot Park premises
The Ascot Park premises were secured by a tall fence and a tall, locked gate. The appellant located a crate from a nearby business and used it to climb over the gate or fence. She knocked at the door. Mr Blank and Ms Biedrzycki answered. The appellant asked to see the children. Mr Blank asked her to leave. Ms Biedrzycki asked the appellant to leave, and shut the door. Mr Blank, Ms Biedrzycki and the two children were inside. Ms Biedrzycki called police. The appellant shouted to be allowed to see her children. Mr Blank and Ms Biedrzycki went outside. They told the appellant to leave. She refused. There was an argument. The children came outside. The appellant sat on the lawn, refusing to move. Mr Blank and Ms Biedrzycki tried to carry the appellant off the premises. The appellant bit Ms Biedrzycki twice on the thigh. Mr Blank and Ms Biedrzycki let the appellant go and she remained on the front lawn. Police attended and spoke to those present. There was a recording from a police officer’s body-worn camera.[3] The appellant was arrested, taken to a police station, and interviewed.[4]
[3] AB 280. Exhibit P 8.
[4] AB 281. Exhibit P 9.
The appellant was charged with the offences of trespass on premises, contrary to s 17A(1) of the Summary Offences Act 1953, and assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935. She pleaded not guilty.
The Trial
There was a trial before a Magistrate. The appellant was unrepresented. The Magistrate was required to manage the hearing closely and carefully to ensure that the Court had sufficient admissible, and only admissible, evidence upon which to make a decision. The Magistrate was required to undertake the difficult task of assisting the appellant to obtain a fair trial whilst avoiding interfering to such an extent that the parties’ ability to advance their respective cases was compromised. The appellant, like most self-represented defendants, required a good deal of assistance.
The trial proceeded over four non-consecutive dates between September 2023 and February 2024.
The prosecution case was comprised of the oral evidence of Mr Blank, Ms Biedrzycki, Constable Samuel Baker, and various tendered exhibits. The appellant did not give evidence, but in the course of making submissions and putting questions to the prosecution witnesses, it emerged that the appellant did not deny attending the premises or biting Ms Biedrzycki. The questions that emerged were whether the appellant had a right to go onto the Ascot Park premises, and whether she acted in self-defence when she bit Ms Biedrzycki.
Procedural matters at trial relevant to the appeal
The appellant’s police interview was played in open Court during the trial,[5] and a transcript was marked for identification.[6] Although it was not tendered, it may be inferred from the Magistrate’s reasons for decision that the Magistrate had regard to the content of the Appellant’s police interview. Subsequently, on the appeal against conviction, I agreed to admit the transcript that had been marked for identification.[7]
[5] Ibid.
[6] AB 282. MFI 10.
[7] Pursuant to section 42(4) of the Magistrates Court Act 1991 and rule 191.1(1)(c) of the Joint Criminal Rules.
The Magistrate’s decision
The Magistrate reserved his decision and delivered a verdict with reasons on 29 April 2024.[8] The Magistrate was required to determine whether to find either or both of the trespass and assault charges proven beyond reasonable doubt. At the conclusion of his reasons, the Magistrate found the appellant guilty of both charges. Sentencing was scheduled for the following week.
[8] AB 2, Reasons for Verdict.
The appellant initially brought her appeal against both verdicts but subsequently withdrew the appeal insofar as it concerned the finding of guilt in relation to trespass. Accordingly, it is appropriate to focus the analysis of on the Magistrate’s reasons with respect to his Honour’s findings on the charge of assault.
The Magistrate identified the elements of the offence of assault, and that the key issue for his decision was whether the appellant biting Ms Biedrzycki on the thigh was unlawful, in that the prosecution had disproven that the appellant was acting in self-defence.[9]
[9] Ibid [67].
The Magistrate found certain facts concerning the relationship history between the appellant and Mr Blank proved beyond reasonable doubt. These are relevant particularly to ground 1 of the appeal. They were as follows:[10]
[10] Ibid [9].
·The accused and Mr Blank were in a relationship from about 2007 until about 2012;
·They have two children together (who were aged 14 and 13 at the time of the trial);
·The post-separation relationship between the accused and Mr Blank was difficult and marked by mutual disagreements and tension;
·The accused and Mr Blank were involved in Federal Circuit Court proceedings. At the time of the trial, interim orders were in place and the parties were awaiting a trial;
·There was a parenting plan in place at the time of the incident. The terms of the parenting plan meant the children would live with their father Mr Blank but would see their mother after school every Friday and would then spend time with her at her house if they felt comfortable doing so. One of the conditions indicated that “while the children are at Mum’s, she agrees to be present with them, and to not have other people around”;
·Mr Blank and Ms Biedrzycki had been in a relationship since about 2019. They had no children together. They were living together at the time of the alleged offences in the Ascot Park house where the incidents took place.
(footnotes omitted)
The Magistrate addressed the elements of self-defence as set out in s 15 of the Criminal Law Consolidation Act 1935. The prosecution was required to exclude, beyond reasonable doubt, that: [11]
(a) the appellant genuinely believed that her conduct was necessary and reasonable for a defensive purpose being self-defence against an assault by Ms Biedrzycki (and Mr Blank) or preventing or terminating being unlawfully imprisoned by Ms Biedrzycki (and Mr Blank); and
(b) the appellant genuinely believed that Ms Biedrzycki was acting unlawfully; and
(c) the appellant’s conduct was, in the circumstances as she genuinely believed them to be, reasonably proportionate to the threat that she genuinely believed to exist.
[11] Ibid [86]-[89].
Key to the decision, the Magistrate rejected beyond reasonable doubt the appellant’s version of events of the altercation with Mr Blank and Ms Biedrzycki.[12] That version had been put to the witnesses. The Magistrate rejected the possibility that the appellant genuinely believed that Ms Biedrzycki was acting unlawfully.[13] He rejected the possibility that the appellant genuinely believed that her conduct was necessary and reasonable for a defensive purpose.[14] Having done so, the Magistrate did not proceed to make any finding as to whether the appellant’s conduct was reasonably proportionate because it was not necessary to do so. Further, the Magistrate found both Mr Blank and Ms Biedrzycki to be credible and reliable witnesses, and Ms Biedrzycki to a “particularly impressive witness”. [15]
[12] Ibid [98]-[99].
[13] Ibid [107].
[14] Ibid [108].
[15] Ibid [115]-[116].
The Magistrate convicted the appellant of assault.[16]
[16] Ibid [118].
The appeal against conviction
The appellant, who engaged legal representation for the sentencing process and for the appeal, filed a Notice of Appeal that was out of time by approximately one week,[17] but no issue was taken by the respondent with respect to a grant of an extension of time. I find it appropriate to make such a grant.
[17] AB 24, Notice of Appeal.
There were seven grounds of appeal advanced.[18]
[18] Ibid.
Ground 5 – the Magistrate ought to have recused himself from hearing the trial
The fifth ground of appeal against conviction alleged that the Magistrate ought to have recused himself from hearing the trial on the grounds of apprehended bias. It was conceded that no application was made at the trial. The appellant’s written submissions did not set out the basis for the alleged error. I formed the preliminary view that the ground, if made out, might be dispositive of the appeal. I granted the appellant permission to file further evidence regarding this ground, which she did by way of an affidavit affirmed on 30 August 2024.[19]
[19] This affidavit was originally filed as FDN 12. Leave was given by way of orders made on 30 August 2024 to uplift and replace it. This appears not to have occurred. FDN 12 is now recorded as a Notice of Acting.
In the affidavit of 30 August 2024, the appellant stated that:
·She had made an application for an intervention order against Mr Blank;
·She was unrepresented at the time;
·She swore an affidavit in support of the application dated 24 March 2023 comprising 96 paragraphs over 17 pages;
·In it, she described her relationship with Mr Blank, and set out various complaints she had in relation to the actions of SA Police in relation to the removal of the children from her care;
·She described an assault on her on 23 July 2021 at the Ascot Park premises;[20]
·She complained that SA Police were pursuing the charges against her as retaliation for her complaints about SA Police;
·She made reference to having made a complaint to the Office of Public Integrity; and
·She described her distress about being ‘misidentified as the perpetrator’ when it was Mr Blank who had contravened parenting orders made by the Federal Circuit Court made in 2016.
[20] This is the incident that is the subject of the charges. In the affidavit, the appellant mistakenly describes this as the “Athol Park premises”.
The appellant proceeded in her affidavit of 30 August 2024 to speculate as to how the Magistrate may have been influenced by reading the content of the affidavit sworn on 24 March 2023. She deposed at paragraphs [7], [20]-[21], [23]-27:
The Magistrate briefly advised that some of the material I had submitted was inappropriate or ought not to have been disclosed and that I should seek legal advice. He indicated that perhaps I had disclosed something or things (which he did not specify) which I should not have disclosed, being correspondence with my lawyer and things about the police.
…
I consider that the tenure [sic] of my wording in the affidavit [of 24 March 2023] could be seen as erratic or dramatic, without the matter-of-fact and detached objective wording of a legal professional. I was distressed and felt overwhelmed by the process, which is understandable when one considers my former status as a self-represented party, and I felt frustration at being powerless to ensure of [sic] my children’s safety as I had been successfully misrepresented as an abusive parent.
Perhaps Magistrate Wells perceived my submissions containing documents subject to legal restrictions of some sort, as he appeared to be raising as an issue to me at the first hearing, as disrespectful to the court or to lawful procedures. I did not intend any disrespect Your Honour, I have only tried to be as forthright and transparent as possible for clearly throughout my interactions with police and legal proceedings believing it to be important, despite this at times working against me.
…
I am concerned that Magistrate Wells may have formed an inaccurate perception of me because I listed my complaints against the police. It is possible that he thought these complaints were not viable, which is why he prevented me from including the police complaints in my application for an intervention order. He instructed me to consider formally redacting my material surrounding my complaints against the police, which were relevant to the case, and it appears to me that Magistrate Wells did not give due credit to those complaints, which may have influenced his decision making.
It is my view that Magistrate Wells formed an inaccurate perception that the police have only acted lawfully performing their duties in their interactions and involvement with me, when in fact Judge Allen of the District Court found otherwise.
Another example of how Magistrate Wells’ views may have been influenced before the trial is where he disregarded the content of my mental health report after Nicholas Blank assaulted me. Consequently, because he appeared to have minimised the assault on me, he did not have an accurate representation of me in his mind during the trial because of a pre-conceived notion that my mental health was unstable as opposed to the fact that the hospital showed I was a victim of violence.
I believe Magistrate Wells’ personal knowledge of the facts of my Intervention Order Application heard by him on a prior occasion did affect his thought process and decision making in my trial, inclusive of the above reasons. I state that the conflict of interest negatively affected the outcome of my trial due to Magistrate Wells’ pre-conceived opinions and/or unconscious bias.
I believe Magistrate Wells’ exposure to the details of my Intervention Order application may have made me lose credibility in his eyes because of his misinterpretation of police complaints and the hospital records.

In light of the matters set out in the appellant’s affidavit, and in consultation with the parties, the Court obtained a report from the Magistrate pursuant to Rule 188.4 of the Joint Criminal Rules, dated 29 September 2024.[21] The Court also obtained a copy of the audio recording of the hearing that occurred before the Magistrate on 26 April 2023.[22]
[21] Admitted as fresh evidence on the appeal against conviction, Exhibit A 5 (‘Magistrate’s Report’).
[22] Admitted as fresh evidence on the appeal against conviction, Exhibit A 4.
The Magistrate’s report contained a description of the sequence of events, the factual basis of which was not disputed. I proceed on the basis of the facts as described in the report. On 26 April 2023, the Magistrate conducted a hearing on an application by the appellant for an intervention order against Mr Blank (MCCRM-23-012642). The appellant filed a 103-page affidavit, inclusive of annexures, in support of her application.
In the hearing, the Magistrate advised the appellant that he had “quickly” read the documents she had submitted with her application and had a “broad overview of her position”.[23]
[23] Magistrate’s Report (n 21) p 2.
The Magistrate informed the appellant that he would not be able to determine her application without hearing evidence about all of the relevant matters, and that he was not prepared to do that on that occasion. The Magistrate suggested to the appellant that she may wish to seek legal advice about whether she wished to re-consider some of the material in her affidavit, which the Magistrate considered might constitute a waiver of legal professional privilege. The Magistrate adjourned the application to 17 May 2023.
On 17 May 2023, at the email request of the appellant, the Magistrate administratively adjourned the matter without the attendance of the parties.
The Magistrate had nothing further to do with the appellant’s application. On 31 May 2023, the appellant’s application was substantively dealt with and finalised by another Magistrate.
On 26 September 2023, the appellant appeared before the Magistrate as a defendant in charges of trespass and assault.
The Magistrate did not recognise the appellant nor remember that she had appeared before him in relation to the intervention order some months earlier. The appellant made no mention of her earlier appearance before him. She made no application for the Magistrate to disqualify himself from hearing the trial on the ground of apprehended bias.
Included in the report by the Magistrate are the following observations:[24]
The complaint is that I should have independently and pro-actively raised the issue with the parties. That complaint assumes or pre-supposes that I was aware of my earlier involvement with the appellant when the matter came on before me for trial. As I will set out in due course, I did not recognise the appellant when she appeared before me for her criminal trial on 26 September 2023. I did not remember that she had appeared before me five months earlier.
[24] Ibid p 1.
The Magistrate stated in his report that he has “no real recollection” of the hearing that took place on 26 April 2023.[25]
[25] Ibid p 3. The Magistrate mistakenly describes this as the hearing of 26 May 2023.
The Magistrate proceeded to provide a more fulsome account of the events of that hearing, based on his listening to the audio recording. He observed that the hearing was one of six private intervention order matters listed between 10 and 11.30 am on that day. The Magistrate set out what he considered to be a salient summary of the interactions with the appellant on that day. In particular, he said:[26]
There was no discussion at all about the allegations that were later ventilated in the appellant’s trial before me. In particular, the appellant did not raise, nor did I discuss with her, the allegations that she was a trespasser at Mr Blank’s home and assaulted Ms Biedrzycki.
[26] Ibid p 2.
The Magistrate stated that his concerns about the content of the affidavit in support related to the protection of her legal interests and her disclosure of privileged communications.
The Magistrate stated that his “usual practice” is to read the relevant documents before the hearing and that it was clear that “I had some knowledge of the relevant issues”.[27] However, the Magistrate did not agree with the characterisation given by the appellant’s counsel on the appeal that he “had been actively involved, and had heard and determined within a few months before, an intervention [order] between the protagonists.”[28]
[27] Ibid p 3.
[28] Appeal Transcript, 7 August 2024, p 14, lines 14-17.
The Magistrate said: [29]
… I heard nothing more than preliminary matters. The appellant did not give evidence. (She was required to give oral evidence at the hearing where the application was determined: See BC v MC [2024] SASC 81.) She did not do so. I did not determine the application.
This was a busy private intervention order list. The appellant’s matter took roughly 19 minutes. I heard other oral applications by other applicants. There was nothing notable or memorable about the appellant’s application, or the content of the hearing.
I had no further active role in the appellant’s application for an intervention order.
[29] Magistrate’s Report (n 21) p 4.
In relation to the appellant’s appearance before him in the trial for trespass and assault, the Magistrate said:[30]
I did not recognise or remember the appellant when the trial began. At no time thereafter did I remember that I had presided over the earlier private intervention order hearing.
It appears that there were six pre-trial conferences, none of which were before me.
[30] Ibid.
The Magistrate pointed out that there were over 3000 separate files listed before him between the two listings.[31] He explained that because the intervention order had subsequently been finally heard and determined by a different Magistrate prior to the criminal trial, there was no notation or indication on the trial file that the Magistrate had dealt with the intervention order or indeed any notation as to the appellant’s other proceedings in the Court.[32]
[31] It is not clear whether the Magistrate, through his clerk, calculated the number of hearings between 23 May and 23 September 2023 or, as would have been correct, 23 April and 23 September 2023. It is immaterial.
[32] Magistrate’s Report (n 21) p 5.
Copies of the report were provided to the parties who then made submissions on the issue.
Mr Bourne for the appellant submitted that the Magistrate’s exposure to some of the facts and allegations underpinning the relationship between the appellant and a key prosecution witness, Mr Blank, might lead a fair-minded lay observer to consider that the exposure influenced the subsequent criminal trial. He submitted that it should create in the appeal court a level of disquiet that the verdict was unsafe, such as to warrant setting it aside.
Ms Nikoloff for the respondent submitted that nothing had been identified from the preliminary hearing of the intervention order application on 23 April 2023 that might lead a fair-minded lay observer to conclude that the Magistrate might not bring an impartial mind to the determination of the criminal proceedings. Ms Nikoloff observed that there had been no findings on any matters, let alone any adverse findings in relation to the appellant. Moreover, the Magistrate had not recalled the matter and it was submitted that there was no basis upon which the Magistrate ought to have recused himself.
Consideration of ground 5
The test for whether an apprehension of bias has arisen is whether the fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial and unprejudiced mind to the resolution of the matter. The application of the above test requires two steps:
·the identification of what it is said might lead the Court to decide a case other than on its legal and factual merits; and
·an articulation of the logical connection between the matter and the feared deviation from the court of deciding the case on its merits.
In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[33] the High Court found that a judge’s appearance as counsel against a party appearing before the judge at an appeal against the party’s conviction, was sufficient to give rise to a reasonable apprehension on the part of a fair-minded lay observer of the possibility that the judge had formed and retained an attitude to the appellant that was incompatible with the degree of neutrality required to dispassionately resolve issues in a subsequent proceeding to which the appellant was a party. Kiefel CJ and Gageler J said at [38]:[34]
Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
(Footnotes omitted)
[33] (2023) 409 ALR 65.
[34] Ibid.
Applying that framework to the current matter, the factor must be identified. The factor postulated by the applicant was the attitude that the Magistrate might be thought to have developed in respect of the appellant having read her affidavit in the intervention order proceedings. The difficulty with this is that the Magistrate stated that he did not, when conducting the criminal trial, recall the affidavit or the appellant’s appearance before him in the earlier proceedings, and therefore he could not associate it with the trial. His Honour’s statements about this were not challenged.
The fair-minded lay observer is not legally trained and is not assumed to have any specialised knowledge.[35] A fair-minded lay observer, apprised of the information in the Magistrate’s report, would not conclude that the Magistrate might bring to the criminal proceedings any attitude about the appellant that was incompatible with the proper disposition of those proceedings. Any attitude that the Magistrate might have developed by reading the affidavit or conducting the procedural hearing on the intervention order application did not endure; it had been erased by a lapse of memory.
[35] Charisteas v Charisteas (2021) 273 CLR 289, 297 [12], 299-300 [20]-[21].
Unsurprisingly, in those circumstances, the Magistrate did not raise the issue of recusal at the beginning of the criminal trial. In light of the measures that the Magistrate took to assist the unrepresented appellant to challenge the prosecution case, and to ventilate her defence, it is almost inconceivable that if the Magistrate was aware that there was a possibility that he should recuse himself, that he did not raise it with the parties or simply disqualify himself.
This ground of appeal is dismissed.
Other fresh evidence adduced on appeal
Before turning to the remaining grounds of appeal, it is convenient to address the applications made by both the appellant and respondent to adduce fresh evidence on the appeal beyond that which concerned the issue of recusal.
The Court on appeal received and admitted by consent:
·A 1: video footage of the body-worn camera on Constable Baker who attended at the property.
·The exhibits tendered in the original proceedings (P 1- 5, D 1, P 7-9) (AB 235 – 281)
·The transcript of the record of interview of the appellant (P 10) (AB 282)
·A 2: Affidavit of Robert Crisci sworn on 1 August 2024: A2 (AB 295)
·A 3: the transcript of A1 (AB 317)
·A 4: audio of AMC Intervention Order application directions hearing on 26 April 2023.
·A 5: Report of Magistrate Wells dated 29 September 2024.
·A 6: Affidavit of the appellant 30 August 2024 (FDN 12).
·A 7: Affidavit of the appellant of 30 August 2024 (FDN 13) (but not its annexures)
·A 8: Exhibit JJP 3 to the affidavit of the appellant of 30 August 2024 (FDN 13).
I deferred making a decision with respect to certain proposed and opposed items of fresh evidence, being exhibits JJP 1 and JJP 2 to the appellant’s affidavit of 30 August 2024 (FDN 13).
JJP 1 is a Family Court Order by which the children were to reside primarily with the appellant. It was not put to any witness in the original trial, though a later order, dated March 2022 (post-dating the charges) which provided that the children live with the father, was tendered by the prosecution.[36]
[36] AB 273. Exhibit P 7.
The appellant submitted that the Court on appeal should have before it a more complete picture of the orders that sat behind the dispute between the appellant and Mr Blank. The respondent submitted that there was no proper basis to introduce that evidence on appeal because it would require further oral evidence from the appellant and the witnesses as to the effect of each subsequent order on each previous one, including the effect of the removal by the Department for Child Protection of the children from the appellant and the placement of the children in Mr Blank’s care in November 2020. This, it was argued, would amount to an unnecessary expansion of the evidentiary basis upon which the original trial was conducted.
I did not understand the parties to be in any disagreement that, in 2016, there was a Court order to the effect that the children were to reside with the appellant. Nor was there any disagreement that, in 2020, the children were removed from the appellant’s care by the Department of Child Protection and placed in the care of Mr Blank. In those circumstances, the Court could not be said to have an inadequate evidentiary basis. As the respondent contended, the appellant’s case against the charges was not based on a lawful entitlement to have access to the children arising from the 2016 Court orders. Rather, her case was put as an entitlement to have access to the children pursuant to the July 2021 parenting plan. That was also the appellant’s case on appeal.
I decline to admit JJP 1 to the appellant’s affidavit of 30 August 2024 (FDN 13) being the Family Court order of 2016, on the appeal.
The appellant also sought to tender JJP 2 to the appellant’s affidavit of 30 August 2024, being a hospital discharge report, and this is addressed under ground 2 of the appeal.
Ground 1
The learned Magistrate erred in failing to adequately consider that the appellant attended the premises of the alleged victims pursuant to a parenting plan agreed to between the parties in the course of proceedings in the Federal Circuit and Family Court of Australia.
A theme running through the appellant’s grounds of appeal was that the Magistrate failed to take adequately into account the role of the parenting plan in explaining and justifying the appellant’s conduct. On appeal, the appellant did not take issue with the findings as to the existence and terms of the parenting plan. [37]
[37] Reasons for Verdict (n 8) [9].
Evidently, the plan did not contain any provision for the appellant to attend at Mr Blank’s house. It provided for the children to meet with the appellant at “a park or the café” or, if the children felt comfortable to do so, at the appellant’s house. It made no provision for the appellant to meet with the children or collect them from the Ascot Park premises.
It contained a provision that “in the event of any future dispute arising in regard to the provision of this agreement which we cannot settle ourselves, we agree to consider family dispute resolution before seeking a solution in court.”[38]
[38] Exhibit P 1, paragraph E.
To that extent, the ground of appeal cannot be sustained as it cannot be said that the appellant attended pursuant to a parenting plan. The ground of appeal must be understood to be arguing that the appellant attended at the premises because she wanted to see her children, which was what the parenting plan provided for.
The Magistrate made findings of fact beyond reasonable doubt about what had happened a week prior to 23 July 2023.[39] The children had gone to the appellant’s house. Mr Blank formed the view that the appellant had not acted in accordance with the parenting plan because she had a male friend present at the house when the children visited. The Magistrate said that Mr Blank made it clear in his evidence that, after that event, he prevented the children from visiting the appellant the following week, in breach of the parenting plan.[40] Moreover, Mr Blank told the appellant that, in his view, “all deals are off.”[41] The Magistrate described this as the appellant’s “motivation” to go to Mr Blank’s home the following Friday.[42] The Magistrate said, “The suspension of the parenting plan is also relevant to the accused’s position: on her version, she was entitled to see her children and Mr Blank was not permitted to suspend that agreement.”[43]
[39] Reasons for Verdict (n 8) [13].
[40] Ibid [14].
[41] Ibid [13].
[42] Ibid [15].
[43] Ibid.
Later, in considering the charge of trespass, the Magistrate said:[44]
… I have approached this matter on the basis that the accused’s case was that she was entitled to be at that house to see her children in accordance with the parenting plan which provided she could see the children every Friday. Obliquely, perhaps, the defence case could be viewed as disputing the allegation that she was behaving as a trespasser because she was impliedly authorised to be there.
[44] Ibid [32].
Although the conviction for trespass is no longer pursued, the Magistrate’s reasons as set out above reveal his thinking as to the appellant’s state of mind in attending at the premises, which is relevant to his thinking in relation to the charge of assault, and in particular whether self-defence had been disproved.
When describing the appellant’s version of the events of 23 July 2023, his Honour later said:[45]
I will consider this [trespass] charge on the basis that the accused’s position was that she went to Mr Blank and Ms Biedrzycki’s home to see her children. She knew where Mr Blank lived because he had previously sent her a message telling her where he lived. She believed the children were being inappropriately withheld from her. She believed that Mr Blank was breaching the parenting agreement which allowed her to see the children on Friday afternoons. …
[45] Ibid [49].
In making his findings on the trespass charge, the Magistrate said:[46]
The accused had no right to be at Mr Blank’s home. She had no authority to be there. It is not reasonably possible that the accused believed she was either welcome to attend Mr Blank’s home or was entitled to do so. The parenting plan neither directly nor impliedly permitted the accused to attend at Mr Blank’s home. Further, once Mr Blank told her to leave, she was well aware that she was not permitted to be there. She could not have had any reasonable belief that she was entitled to remain.
I am satisfied beyond reasonable doubt that the accused intentionally jumped the front fence of Mr Blank’s property. She knew she was trespassing from that point. (I note that this offence is not made out until a trespasser fails to leave having been asked to do so).
I find beyond reasonable doubt that the accused was a trespasser.
But what about the parenting plan?
It is implicit in the way the accused conducted her defence that she considered that the parenting plan gave her an authority or license or entitlement to go to Mr Blank’s house. She maintained that she wanted to see her children. The accused made this clear not only at trial, but during her conversations and interview with police. I can readily conclude that this was her sole motivation.
The accused found herself in a difficult position. Mr Blank had unilaterally suspended the parenting plan. She was genuinely aggrieved. I accept that the accused desperately wanted to see her children. However, Mr Blank’s decision to disobey the parenting plan did not therefore confer upon her a right, an authority or an entitlement to go to his home. There were other ways of addressing Mr Blank’s decision to not allow her to see the children.
I make no conclusions about whether or not Mr Blank was justified in suspending the parenting plan. I have had regard to the differing points of view between the accused and Mr Blank relating to the preliminary incident a week before.
[46] Ibid [57]-[62].

The Magistrate then turned his attention to the assault charge.
The consideration of this charge focussed more closely on the events immediately before the appellant bit Ms Biedrzycki. The Magistrate referred to the fact that, in her closing address, the appellant made it clear that her defence case was that “she bit Ms Biedrzycki as a voluntary, intentional and responsive application of force.” [47] His Honour found that self-defence was properly raised.[48]
[47] Ibid [79].
[48] Ibid [83].
In making his findings on this charge, the Magistrate focused on the elements of the assault and, in particular, whether the prosecution established beyond reasonable doubt that the appellant unlawfully applied force to Ms Biedrzycki. The Magistrate directed himself that he was required to make a finding as to whether the appellant genuinely believed, on reasonable grounds, that the other person was acting unlawfully. As to that, the Magistrate said:[49]
I have found the accused guilty of trespass. I am satisfied that this is “an unlawful act against person or property” committed by the accused. The accused, therefore, was resisting Ms Biedrzycki (by biting her) and Ms Biedrzycki was acting in response to the accused’s unlawful act of trespassing.
For self-defence to be available to the accused, the prosecution must exclude beyond reasonable doubt that the accused genuinely believed, on reasonable grounds, that Ms Biedrzycki was acting unlawfully in trying to drag her out of the front yard.
[49] Ibid [94]-[95].
Given that the appellant did not give evidence, the Magistrate relied upon the appellant’s conversations and interviews with police, and the questions that she asked of the witnesses, to discern her case. The Magistrate was required to make findings as to whether the appellant was responding to being dragged by the hair, grabbed around the throat, punched or slapped (the appellant’s version), or being dragged by the arms or legs or both (Mr Blank’s and Ms Biedrzycki’s version), or some other account of the events which led to the appellant biting Ms Biedrzycki. The Magistrate rejected the appellant’s account. He accepted the evidence of Mr Blank and Ms Biedrzycki that they had not hit or struck the appellant as alleged by the appellant.[50]
[50] Ibid [100].
It was against the background of the findings that:
·The appellant trespassed, and
·The appellant bit Ms Biedrzycki during Ms Biedrzycki’s attempt to remove her from the property,[51]
that the Magistrate found beyond reasonable doubt that the appellant was not acting for a defensive purpose.[52] His Honour rejected the defence of self-defence and found that the prosecution had proved unlawfulness in the appellant’s actions in biting Ms Biedrzycki.[53]
[51] Ibid.
[52] Ibid [108].
[53] Ibid [107].
In that reasoning, the appellant’s beliefs about the parenting plan were evidently at the forefront of the Magistrate’s mind. Indeed, immediately after the finding as to the failure of the defence of self-defence, the Magistrate said:[54]
I do accept that the accused was genuinely upset. She desperately wanted to see her children. She was genuinely aggrieved that Mr Blank had withheld the children and had disobeyed the parenting plan. Her distress and unhappiness at not seeing her children were understandable.
This is a matter where both Mr Blank and the accused had other legal avenues to address and resolve the parenting disputes that had arisen.
[54] Ibid [112]-[113].
The Magistrate demonstrated in his reasons that he accepted that the parenting plan was central to the appellant’s motivation for attending the Ascot Park address. Ground 1 is not sustained.
Ground 2
The learned Magistrate erred in law by refusing to admit the hospital discharge report detailing the appellant's injuries sustained during the alleged assault.
During her cross-examination of Mr Blank, the appellant advised the Magistrate that she wished to tender photographs to show injuries on her face and body that she said occurred during the altercation at the Ascot Park premises on 23 July 2021. The prosecutor objected to the photographs on the grounds that they did not show the injuries that the appellant claimed and that there was no evidence as to when they had been taken.[55] The Magistrate declined to admit the photographs at that point in time because the witness, Mr Blank, could not speak to them. The Magistrate left open the question of whether the appellant might tender them later if she gave evidence, but she did not do so.[56] The appellant also asked the Magistrate to receive a hospital discharge report dated 27 July 2021. The Magistrate dealt with the issue in the absence of the witness. There was the following exchange:[57]
[55] AB 85. Transcript 26 September 2023 at p 50.
[56] AB 86. Transcript 26 September 2023 at p 51.
[57] AB 86. Transcript 26 September 2023 at p 51.
DEFENDANT:     The discharge summary is from the hospital when I went because he had his knee in my back and it just got worse over two days so I went to the hospital – so she’s listed all of injuries that I had and –
HIS HONOUR:    Well what does that prove, that just. proves that the hospital recorded what you told them.
DEFENDANT:     And that I was injured.
HIS HONOUR:    Well, it doesn’t prove that.
DEFENDANT:     Well, they examined me.
HIS HONOUR:    Are you going to call the doctor.
DEFENDANT:     Well, that’s what they say, like they saw my injuries.
HIS HONOUR:    They rely on what you say.
DEFENDANT:     I can’t just fabricate my injuries they saw them.
HIS HONOUR:    Well, are you going to call the doctor who examined you to say this is what I saw.
DEFENDANT:     No I don’t think I will have to with the discharge, but that’s okay, we won’t submit it we’ll move on, I’m finished.
HIS HONOUR:    It has limited assistance only.
DEFENDANT:     Okay.
HIS HONOUR:    It’s probably a business record it could be tendered for that purpose but –
MS DU:It doesn’t prove anything your Honour. It just shows that she went there on the day, which is on the –
HIS HONOUR:    It probably shows that, if she gives this evidence, that she made these reports to the doctor.
MS DU:That’s right.
HIS HONOUR:    But that cannot be the subject of cross-examination of Mr Blank. Alright, we’ll bring him back in.
With the assistance of the Magistrate, the appellant then put her version of events to Mr Blank in cross-examination. Mr Blank denied the allegations of pressing his knee into her back, grabbing her by the neck, lifting her up by the neck, grabbed the appellant by the neck with his forearm, throwing her to the ground, and punching her in the face.[58]
[58] AB 93-94. Transcript 26 September 2023 pp 58-59.
Neither the photographs nor the discharge report were put to the witness.
Ms Biedrzycki was then called as a witness by the prosecutor and the Magistrate again assisted the appellant to put her case to the witness.[59] Ms Biedrzycki’s evidence was that neither she nor Mr Blank hit, punched or slapped the appellant, or pulled her hair, before the appellant bit her. It was Ms Biedrzycki’s evidence that she slapped the appellant on the face after she was bitten. Neither the photographs nor the discharge report was raised through this witness, or the last of the prosecution witness, Sergeant Baker. After the prosecution case, the matter was then adjourned part-heard.
[59] AB 125. Transcript 26 September 2023 p 90.
When the matter resumed, the appellant confirmed that she did not intend to call any witnesses and she did not make any further attempt to put the photographs or the hospital discharge report into evidence.
On appeal, the appellant annexed the hospital discharge report to her affidavit sworn on 30 August 2024.[60] It was advanced as evidence that ought to have been received by the Court.
[60] FDN 13. JJP 2 to the appellant’s affidavit of 30 August 2024.
In oral submissions on the appeal, counsel for the appellant submitted that the hospital discharge report would not have been immaterial to the Magistrate’s decision, but conceded that it would have carried limited weight.
Ms Nikoloff for SA Police objected to the Court’s receipt of the hospital discharge report on appeal. She argued that the Magistrate’s observation that the report would not, without evidence from its author, take the appellant’s case further, was correct. She submitted that the appellant acknowledged this, and it was the basis on which the appellant then withdrew her request to tender the document. She observed that the appellant had three subsequent occasions over which the matter was heard on which she might have re-visited the request and/or arrange a statement from a witness, but she did not do so.
Consideration of ground 2
In Manuel v Police,[61] Kourakis J described the test for the admissibility of fresh evidence in the context of a Magistrates Appeal:
... In my view the power of the Court to receive evidence pursuant to s 42 of the Magistrates Court Act 1991 is wide. Even though s 42 uses the words “fresh evidence”, in my view that term should be understood in its context as further evidence. The restrictive approach taken to the receipt of fresh evidence on motions for new trials should not be applied to the statutory power conferred by s 42 of the Magistrates Court Act 1991. In the exercise of the discretion given by that provision, this Court must balance the interests of the public in the finality of litigation against the interests of justice in the particular case. The diligence, or lack thereof, of the parties and their legal representatives are relevant considerations. They are, however, not determinative. ...
(Footnote omitted)
[61] [2010] SASC 169 at [28].
Despite the breadth of the power, in this case it must be borne in mind that the appellant withdrew the request. There was no refusal by the Magistrate to allow the appellant to tender the hospital discharge report. Rather, the Magistrate explained that the document could not be used for the purpose she sought to put it to, without the author of the document describing their observations. This did not constitute an error on the part of the Magistrate.
The same difficulty with the document arises on the appeal. The report simply describes what the appellant told a person at a hospital some four days after the event. Without an expert witness to give evidence as to the nature and age of the injuries, or the likely causes of them, the report does not assist the appellant in any material way.
The application to admit the hospital discharge report is refused, and the ground of appeal does not succeed.
Ground 3
The learned Magistrate erred by disregarding the significant inconsistency between the alleged victim’s admission of "attempting to remove" the appellant from the property and the appellant's detailed account of a repeated assault, which was essential to the assessment of reasonable force and self-defence.
There was no inconsistency between the witnesses regarding the act which gave rise to the charge of assault: the appellant’s bite or bites to Ms Biedrzycki’s thigh. There was no inconsistency as to the fact that the bites occurred when the appellant was on the front lawn, and occurred whilst Mr Blank and Ms Biedrzycki were trying to remove the appellant from the premises.
The inconsistency concerns what, if anything, Mr Blank and Ms Biedrzycki did to the appellant prior to the appellant biting Ms Biedrzycki.
The Magistrate accepted that the inconsistency between the version or versions given by Mr Blank and Ms Biedrzycki on the one hand, and the appellant on the other, was significant to the appellant’s defence of self-defence. The Magistrate formed a strong impression of the credibility of the prosecution witnesses from their answers and the manner in which they gave their evidence. The Magistrate was at pains to explain this. He said: [62]
Many of the factual allegations were not in issue. The factual framework was largely uncontroversial. Accordingly, much of the evidence from Mr Blank and Ms Biedrzycki was not challenged. My examination of their reliability and credibility is not central to this trial. However, it is important to mention my consideration of the witnesses.
Ms Biedrzycki was a particularly impressive witness. She was confident, calm and composed. She gave her evidence in a measured and reasonable way. She was neither evasive nor argumentative. Her evidence was logical. She appeared to be recalling events accurately from her memory. She did not appear to be lying, guessing or inventing her evidence. I found her strongly credible and reliable.
Mr Blank was more demonstrative and slightly less articulate that Ms Biedrzycki. (This is unsurprising, given his history of conflict with the accused and the natural emotional upheavals that come with relationship breakdowns. This did not undermine his evidence.) Mr Blank, too, gave his evidence in a logical and straight-forward way. He made appropriate concessions; for example, he accepted, broadly, that he had suspended the parenting plan and was not lawfully entitled to do so. Mr Blank, equally, did not appear to be lying, guessing or inventing any of his evidence. I found his evidence credible and reliable.
(Mr Blank was cross-examined about an inconsistency. It was clear that Mr Blank had sent a message to the accused giving her his address. This was clear from the text message exchange. However, when speaking to police, Mr Blank said he had not disclosed his address and essentially did not know how the accused found out where he lived. When cross-examined, Mr Blank conceded this inconsistency. His evidence was that the did not remember that he had earlier sent this address to the accused at the time he spoke to police. The accused submitted to me that this was a significant matter and showed that Mr Blank was a liar. This inconsistency is explicable. It is irrelevant. It does not undermine Mr Blank’s credibility and reliability as a witness.)
[62] Reasons for Verdict (n 8) [114]-[117].
Consideration of ground 3
The appellant did not give evidence. The Magistrate was able, however, to discern her account of the relevant events from her cross-examination (with which the Magistrate gave significant assistance). The Magistrate was required to make findings in relation to the appellant’s genuine beliefs as to her entitlement to be at the Ascot Park property, and her beliefs as to Ms Biedrzycki’s entitlement to attempt to make the appellant leave the property. These underpinned the Magistrate’s findings on self-defence.
Far from disregarding the inconsistency, the Magistrate addressed it with the analysis necessary to explain his conclusion that the appellant’s self-defence argument failed.
This ground of appeal fails.
Ground 4
The learned Magistrate erred in making a finding of guilt when there was a reasonable doubt on witness credibility arising from the conflict between the body-worn video evidence and the victim’s testimony regarding the appellant's knowledge of their address, which was inconsistent with the text message evidence presented at trial.
This ground of appeal concerns the prosecution witnesses’ statements to police, and their subsequent evidence in court, as to how the appellant came to know the Ascot Park premises address.
The video recording of a police officer’s body worn camera was received on appeal as A1, and the transcript was received as A3. As mentioned earlier in this decision, the Magistrate had regard to the video, and possibly the transcript, but by oversight they were not tendered.
The appellant contended that the statements made to police by the prosecution witnesses in the aftermath of the appellant attending at the Ascot Park address were to the effect that:
·They had not told the appellant where they lived; and
·The appellant had arranged for two people to follow Ms Biedrzycki, and that was the source of her knowledge as to where they lived.[63]
[63] Appellant’s Written Submissions on Conviction at [26].
The appellant contended that this was shown to be false when Mr Blank was shown evidence, in text message form, in which he provided the appellant with his address on 15 July 2021. This text exchange was admitted as Exhibit P 4.
On appeal, the appellant maintained that the Magistrate should have concluded that the prosecution witnesses’ credibility had been undermined.
Ms Nikoloff, for the respondent, submitted that there was no inconsistency in Ms Biedrzycki’s evidence and it was open to the Magistrate to find that she did not know that Mr Blank had sent the appellant their address. Ms Nikoloff further submitted that, given that Mr Blank conceded in evidence that he had made an error when telling the police that he had not told the appellant his address, and provided an explanation for the error, it was open to the Magistrate to find that his credibility had not been undermined, but that he had been mistaken.
Exhibit P 4 contained a text message from Mr Blank to the appellant sent on 15 July 2021 in response to the appellant asking for his address. Mr Blank’s message stated: “I thought you already knew where we live?” before writing the address of the premises. This was sent one week prior to the events that gave rise to the charges.
Constable Baker’s body-worn video demonstrates that when Mr Blank and Ms Biedrzycki spoke with police they, in essence, alleged that they had not provided the appellant with their address. The transcript contains the following exchange between Constable Baker and Mr Blank and Ms Biedrzycki immediately after the altercation:[64]
[64] AB 331. Transcript of Video Constable Baker.
Biedrzycki said:          She shouldn’t even knew where we live but she had two of her
Baker said: Yeah
Blank said: Friends follow you.
Biedrzycki said:          So that’s the only way she knows where we live.
Baker said:Yeah, it’s scary.
Biedrzycki said:          We’ve never given her
Baker said:It’s scary
Biedrzycki said:    And I went to the police station and said there was a message saying I know where you live now. Fuck she’s
…
Biedrzycki said:    Gross. Oh scabby bitch. Yeah so that’s actual the only reason she knows where we live she never knew our address.
Baker said:Yep
Biedrzycki said:          She had two people follow me home which I know sounds paranoid.
Blank said:[Inaudible]
Biedrzycki said:          But she’s rocked up here and we’ve never given her our address. Ugh fucking disgusting.
It was put to Ms Biedrzycki in cross-examination that she told the police that the appellant, “shouldn’t even know where we live”. Further, that Ms Bierzycki and Mr Blank together told police that the appellant arranged for two of her friends to follow Ms Biedrzycki and that was the source of the appellant’s knowledge. She said that on 9 May 2021, the appellant wrote her a message saying, “I know where you live with my children now”.[65]
[65] AB 181. Transcript 7 December 2023 p 147.
In cross-examination, Ms Biedrzycki agreed she had made these statements, and gave evidence that she had never sent the appellant her address.[66]
[66] Ibid.
In cross-examination, Mr Blank agreed that he had sent a text message to the appellant telling her his address on 15 July 2024.[67] It was put to him that he told the police that he had not told the appellant his address, and that this was false. Mr Blank responded:[68]
I didn’t remember, it’s as simple as that. There was a lot that happened that day.
[67] AB 187. Transcript 7 December 2023 p 153.
[68] AB 188. Transcript 7 December 2023 p 154.
He later said:[69]
It wasn’t until later on when we went through the messages that – you know so yeah.
[69] Ibid.
Consideration of ground 4
The Magistrate addressed this issue directly at paragraph 117 of the Reasons for Verdict, set out earlier in this decision.
Nothing was put in submissions on appeal that demonstrated that the Magistrate ought to have rejected Mr Blank’s account of the altercation, by reason of Mr Blank’s failure to correct Ms Biedrzycki’s statement to police, or to remember that he had in fact given his address to the appellant a week earlier. Further, Ms Biedrzycki’s statements to police and later in Court were consistent with one another.

This ground of appeal fails.
Ground 6
The learned Magistrate placed inadequate weight on the power imbalance between the alleged victims of the trespass and assault and the appellant.
This ground appears to be elaborated upon in the appellant’s written submissions dated 2 August 2024 which state that the Magistrate heard evidence from Mr Blank that he was 180-183 cm in height, and that the video demonstrates that he was of strong build. The appellant submitted that although her height and weight were not in evidence, it would have been apparent to the Magistrate that she was about 170 cm and 70 kilograms, and that Ms Biedrzycki was smaller in stature.
In oral submissions, counsel for the appellant criticised the Magistrate’s willingness to find that self-defence was not established notwithstanding the fact that Mr Blank was a “big burly bloke”[70] and was being assisted by Ms Biedrzycki, whereas the appellant was a smaller individual sitting on the ground. The appellant’s complaint at the time of the events was that Mr Blank and Ms Biedrzycki should have gone back inside their house and waited for police.[71]
[70] Appeal Transcript 24 October 2024 p 12.
[71] P 9. Transcript of body-worn video of Constable Kassebaum, p 8 line 43.
Consideration of ground 6
This ground of appeal fails to address the fact that the appellant’s self-defence argument primarily failed because of the findings as to the appellant’s state of mind. It was she who had scaled the fence to initiate the contact. It was she who refused to leave when asked. The power imbalance was negated by the appellant’s determination to remain on the Ascot Park property, inside the fence.
This ground of appeal fails.
Ground 7
The verdict was against the weight of the evidence.
At trial, the appellant tendered a bundle of emails sent between herself and Mr Blank dated 5 February 2021 to demonstrate the background to the relationship.[72]
[72] AB 269. Exhibit D 1.
The Magistrate asked Mr Blank whether he would agree that his email to the appellant was “abusive and rude and unpleasant”.[73] The witness agreed that it was. One of the complaints on appeal was that the content of the email was not given enough consideration by the Magistrate when considering the evidence about the events in question.
[73] AB 79. Transcript 26 September 2023 p 44.
Apart from D 1, all of the evidence at trial was led by the prosecution. The evidence that was led addressed each of the elements of the offence of assault. The Magistrate directed himself as to how he was required to consider the defence case of self-defence, raised through cross-examination.
The Magistrate accepted the evidence of the prosecution witnesses, and particularly of Ms Biedrzycki. His basis for so doing was not undermined on appeal. This ground of appeal is not sustained.
The inconsistency concerned whether they took the appellant’s arms or the legs.
The Magistrate considered that nothing turned on that inconsistency.
The appellant considered that it was material and that it ought to have undermined the Magistrate’s confidence in their evidence.
The starting point is that the fact-finder can accept part of a witness’ evidence and reject others. The Magistrate focused on those parts of the evidence that directly established the offence and, in this case, whether the defence of self-defence was made out.
The Magistrate attempted to make the same point in respect of whether the appellant was dragged by her arms or her legs. His Honour’s view that this was immaterial can be understood against the other evidence about which the two witnesses agreed, and the appellant’s evidence which the Magistrate rejected. In particular, the Magistrate formed a particularly favourable impression of the primary prosecution witness, Ms Biedrzycki, whose evidence was crucial on the elements of the offence and self-defence.
Counsel for the appellant contended that the email from Mr Blank to the appellant should have been given greater prominence in the Magistrate’s reasoning. It was contended that the email showed Mr Blank to be aggressive, and that this should colour the appreciation of the appellant’s state of mind when she committed the assault on Ms Biedrzycki.
Consideration of ground 7
There has been no error shown in this regard. The Magistrate referred to the email and made several references in his reasons to the tense background leading up to the appellant’s attendance at Mr Blank’s home. The Magistrate’s task was not to make an assessment of who had behaved better or worse toward the other in the ongoing dispute about parenting the children. It was to determine whether the appellant had committed the offences of trespass and assault. There was no greater role that the Magistrate needed to give the email exchange of 5 February 2025, some five months earlier, than he did.
The appeal against conviction is dismissed.
Appeal against sentence
The appellant was sentenced following a sentencing submissions hearing at which she was legally represented, on 6 May 2024.
The appellant was sentenced separately for the two offences. In relation to the trespass, the appellant was convicted and fined $750. In relation to the assault, the Magistrate recorded a conviction and imposed a fine of $2,500.
The Magistrate issued Remarks on Penalty dated 6 May 2024.[74]
[74] AB 19.
The appellant’s notice of appeal provided that the sentencing process miscarried in that:
·The Magistrate failed to adequately consider that the appellant attended the Ascot Park property pursuant to a parenting plan;
·The Magistrate erred in determining that the appellant’s conduct amounted to a vicious attack; and
·The justice of the case required that no conviction be recorded.[75]
[75] AB 28. Notice of Appeal Against Sentence.
Sentencing hearing
The appellant was represented at the sentencing hearing.
The sentencing submissions made by a police prosecutor and the appellant’s solicitor were summarised in the affidavit of Robert Crisci, prosecutor, which the respondent tendered on appeal.[76] Mr Bourne, for the appellant at the sentencing hearing, submitted that it would be appropriate for the Magistrate not to record convictions in respect of the offences. He submitted that the recording of convictions would have a disproportionate effect on the appellant in that it would jeopardise her attempts to alter the access arrangements between her and her children in Family and Federal Circuit Court proceedings. This topic occupied a significant proportion of the time spent in the sentencing hearing. The prosecutor and the Magistrate both observed that the findings of guilt in respect of an act of violence in the presence of the children was more likely than the formality of conviction, to affect those plans.
[76] Exhibit A 2, admitted on the appeal.
There was no submission made that the offences were trifling, and the learned Magistrate did not consider that they were.
The Magistrate concluded that it was unlikely that the appellant would reoffend. However, the Magistrate was not satisfied, having regard to the appellant’s character, criminal antecedents, age or any other circumstances, that there was “good reason” to not record convictions.[77]
[77] AB 19. Remarks on Penalty, p 5.
The Magistrate said,[78]
Your counsel has made a submission that I should find good reason to deal with you without conviction. The prosecution opposes that type of sentence.
In the usual course for matters such as these a conviction would be imposed. Part of the purpose of sentencing is to send a clear message to the community that criminal conduct, such as this, cannot be tolerated.
That said, I have the power to deal with you without conviction and there is not, in this case, any fetter on exercising that discretion.
My discretion arises pursuant to sections 24 and section 97 of the Sentencing Act. Each section has different prerequisites but fundamentally a sentencing court must be satisfied that there is good reason not to impose a conviction.
[78] AB 19. Remarks on Penalty, p 3-4.
The Magistrate proceeded to find that it was unlikely that the appellant would reoffend such that it was open to him to decline to record convictions.[79]
[79] AB 19. Remarks on Penalty, p 4.
The Magistrate took into account the general principle governing the exercise of the discretion: being the effect that a decision to decline to record convictions can undermine the general and personal deterrent effects of sentencing.[80] His Honour turned to consider the consequences of imposition of convictions. The Magistrate dealt with the appellant’s primary contention as follows:
“Your counsel submits that a conviction will signify to [the Family and Federal Circuit Court] that this matter is serious. I do not quarrel with that submission. That said, the Federal Circuit Court will have access to the written verdict and will therefore be able to assess the matters discussed in the verdict. Any conclusion by the Family or Federal Circuit Court about the seriousness of your offending will be made knowing the full details of the trial evidence and what I found proven beyond reasonable doubt. In my view, a conviction or a lack of conviction is not determinative in terms of how other courts will assess your conduct.”[81]
[80] Ibid.
[81] Ibid.
The Magistrate referred to the appellant’s antecedents.[82] These had not been put before the Magistrate but as the prosecutor identified in his affidavit, they were available to the Magistrate. They were tendered on the appeal against sentence.[83] The antecedents include driving offences, failures to comply with bail agreements, and minor drug offences.
[82] AB 19. Remarks on Penalty, p 2.
[83] As exhibit RC 1 to the affidavit of Robert Crisci, Exhibit A 2 on the sentencing appeal and found at AB 301.
On appeal, the appellant reiterated the primary submission made in the sentencing submissions, namely that the Magistrate should not have recorded convictions because of the context in which the offending occurred. The appellant contended that the circumstance of her attendance at the Ascot Park premises, her desire to see her children, her belief as to her entitlement to do so, and the attempts by Mr Blank and Ms Biedrzycki to remove her, were “extenuating” such that convictions should not have been recorded.
The appellant also reinforced the disproportional impact of the convictions on the appellant’s prospects of success in the Family and Federal Circuit Court proceedings in her mission to improve her access to her children.
Counsel for SA Police submitted that there was no error and that the recording of convictions was well within the exercise of the Magistrate’s discretion.
Consideration – sentencing appeal
An appellate court will not interfere with the exercise of the Magistrate’s sentencing discretion unless the sentence was unreasonable, clearly unjust, or there are other grounds for saying it arose from an error of fact or law, or a failure to take into account any material consideration. It is not for the appeal Court to substitute its own view merely because if it would have imposed a different penalty itself. As was said by the Dixon, Evatt and McTiernan JJ in the often cited passage in House v King:[84]
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. ...
[84] House v King(1936) 55 CLR 499, 505.
In this case, the question is whether the Magistrate failed to properly exercise his discretion in deciding to record convictions for the two offences.
The principles for the consideration of an appeal against sentence are well-established. The approach to be applied is that stated by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen at [25]:[85]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific errorshown? (Has there been some errorof principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
(footnotes omitted)
[85] (2006) 228 CLR 357, 370-371 [25].
The Magistrate correctly identified the relevant provisions of the legislation governing his consideration of the recording of convictions. Sections 23, 24 and 97 of the Sentencing Act 2017 (SA) empower the Court to decline to record a conviction.
The difficulty with the appellant’s submission on this ground is that the issues raised on appeal were squarely dealt with by the Magistrate in the Remarks on Penalty. The appellant’s contention that the circumstances of the offending were extenuating is undermined by the findings in the Reasons for Verdict. In particular, the Magistrate found that the appellant did not hold a genuine belief that she was entitled to be at the premises or that Ms Biedrzycki was not entitled to attempt to remove her (within reasonable bounds). Notwithstanding that, the Magistrate did not consider that the assault was “pro-active or aggressive”.[86] The penalty imposed was on that basis. Further, the Magistrate gave express consideration to the implications of the recording of convictions upon the appellant. The Magistrate concluded that any adverse consequences for the appellant that might arise would be attributable to the Court’s consideration of the facts found by the Magistrate rather than the imposition or otherwise of a recorded conviction.[87]
[86] AB 19. Remarks on penalty at p 3.
[87] AB 19. Remarks on Penalty p 4.
In recording a conviction, the Magistrate observed that there is too much violence perpetrated in parenting disputes between separated parents. This observation, and its relevance to the need for a conviction to be recorded, was not challenged on the appeal.
Whilst it was not pursued in oral argument, for completeness it must be recorded that the Magistrate did not describe the assault as “vicious” as referred to in the grounds of appeal. Rather, in the Reasons for Verdict, the Magistrate said,
“While I have found that self-defence is not available to you, you bit the victim Ms Biedrycki [sic] in a reactive and not pro-active or aggressive response.”[88]
[88] AB 19. Remarks on Penalty p 3.
In the Remarks on Penalty, the Magistrate described the assault as “violent and unnecessary” but also as “reactive”.[89] These descriptors are unremarkable in the context of the factual findings that the Magistrate made.
[89] AB 19. Remarks on Penalty p 5.
The appellant did not establish an error in the process or that the discretion miscarried. The appeal against sentence is dismissed.
Orders
As to the appeal against conviction (SCCRM-24-019811):
1. Leave granted to proceed with the appeal out of time.
2.Appeal dismissed.
As to the appeal against sentence (SCCRM-24-019695):
1. Appeal dismissed.