Pezos v Police - [2005] SASC 500

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
PEZOS v POLICE
Judgment of The Honourable Justice Debelle (ex tempore)
28 November 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF TRIAL JUDGE
Appeal against conviction - appellant convicted of assault - appellant not represented at trial - whether magistrate's conduct permitted a fair and lawful trial - relevant principles - whether magistrate biased - held, no material error on magistrate's part - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 18A; Mental Health Act 1993 s 23, referred to.
Abram v Bank of New Zealand (1996) ATPR 41-470; Cachia v Hanes (1994) 179 CLR 403; Cooling v Steel (1971) 2 SASR 249; Council of the Municipality of Burwood v Harvey (1995) 86 LGERA 389; Dietrich v The Queen (1992) 177 CLR 292; Gould v Police [2005] SASC 297; Hittmann v Police (1999) 202 LSJS 132; Hopfner v Flavel (1990) 2 ACSR 295; Johnson v Johnson (1997) 139 FLR 384; Martin v Hayes (1992) 163 LSJS 56; MacPherson v The Queen (1981) 147 CLR 512; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438; R v Calides (1983) 34 SASR 355; R v Gidley [1984] 3 NSWLR 168; R v White (2003) 7 VR 442; R v Zorad (1990) 19 NSWLR 91; Rajski v Scitec Corporation Pty Ltd (unreported, New South Wales Court of Appeal, 16 June 1986); Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497, considered.

PEZOS v POLICE
[2005] SASC 500
Magistrates Appeals: Criminal

DEBELLE J. On 5 September 2005, the appellant appeared in the Adelaide Magistrates Court charged on complaint with two counts of common assault. The first charge was that he had assaulted Michael Hicks. The second was that he had assaulted Kym Hobbs. It was alleged that both offences had occurred on 19 February 2004, at Athelstone. The appellant pleaded not guilty. After a trial before a magistrate, he was convicted of both offences.
On 19 October 2005, the magistrate sentenced the appellant. He ordered one penalty in respect of both counts pursuant to s 18A of the Criminal Law (Sentencing) Act1988. He ordered that the appellant be imprisoned for a period of three months but suspended that sentence upon the appellant entering into a bond to be of good behaviour for a period of 18 months. He ordered the appellant to pay court fees and levies totalling $291.25.
The appellant appeals against the conviction. He does not appeal against sentence.
The prosecution case was that, on the morning of 19 February 2004, police had received a complaint about the appellant’s behaviour. Two police officers went to his home. They cautioned the appellant and left. About one hour later, police were again called to the appellant’s home. On this occasion, four police officers went to his home, including the two who had first spoken to the appellant. Four officers attended because the police officers believed that the appellant might be aggressive, given that he had been abusive and aggressive to the first two police officers when they had first called at his house.
Ultimately, the police officers decided to exercise powers under s 23 of the Mental Health Act1993 and apprehend the appellant and present him for examination. They called an ambulance. While the appellant was being placed on a stretcher, where he was to be restrained, the appellant spat into the faces of the two ambulance officers, who were bending over him fixing the restraints. The appellant was taken to the Royal Adelaide Hospital. In the course of the journey to the hospital, he apologised for his conduct. He was examined at the Royal Adelaide Hospital and later released.
The alleged assault comprised the appellant spitting into the faces of the two ambulance officers. Not long after the evidence in the Magistrates Court had begun, the appellant admitted that he had spat at the ambulance officers. He said that he was clearing his throat and that he could not turn his head because of the restraints. The ambulance officers had given evidence that he was able to turn his head.
For the purposes of the issues in this appeal, it is important to note that the admission as to spitting was made very early in the course of the prosecution evidence.
An Unrepresented Accused
There are seven grounds of appeal. Grounds 1 and 3 raise questions as to the duty of a magistrate conducting a trial with an unrepresented accused. The issues and difficulties which unrepresented litigants present for judges and magistrates have been the subject of an increasing amount of judicial and academic attention. That increase reflects the greater number of unrepresented persons conducting their own litigation, be it in civil or criminal trials. Much of the judicial and other writing has been noted by RD Nicholson J, in his paper Litigants in Person (2001) 5 The Judicial Review 181. There are, of course, later studies. I do not wish to add to the already extensive list of the materials yet another review of the topic. I simply note those principles which will assist the appellant in understanding the issues in his appeal.
The relevant principles affect judges and magistrates alike. A magistrate has the same obligations as a judge when a party is unrepresented: Hopfner v Flavel (1990) 158 LSJS 208 at 215, 2 ACSR 295 at 302. For convenience, I will refer to both judges and magistrates as “judicial officers”.
When a litigant represents himself, the judicial officer is placed in a difficult position. The judicial officer must, at all times, act impartially as an independent arbiter, preserving the balance between the parties. The appearance of justice may be adversely affected if one of the parties, especially the losing party, believes that the judicial officer has become too close to the other party and has not approached the issues in the case with detachment and objectivity. If a party believes that the judicial officer is not neutral and has taken up the cause of his opponent, the central point of judicial decision making will be lost: Council of the Municipality of Burwood v Harvey (1995) 86 LGERA 389 per Kirby P at 397. At the same time, the unrepresented party will often be at a disadvantage. The court will, therefore, be concerned to ensure that the trial, be it a criminal or a civil trial, is fair and just. The interests of justice and fairness may require a degree of assistance by the judicial officer to the unrepresented litigant. There is, therefore, a tension between maintaining the impartiality of the judicial officer and the provision of a degree of assistance, and, indeed, the appropriate degree of assistance, to the unrepresented litigant.
A litigant has a fundamental right to represent himself: Cachia v Hanes (1994) 179 CLR 403 at 415. The task for a judicial officer, when a party is unrepresented, was described in these terms by the Full Federal Court in Abram v Bank of New Zealand (1996) ATPR 41-470 at 42-347:
What a judge must do to assist a litigant in person depends on the litigant, the nature of the case and the litigant’s intelligence and understanding of the case.
That reasoning was approved by a later Full Court of the Federal Court in Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at [27]. There is, therefore, no single rule of universal application, no talisman, which applies to assist in those cases where a party is unrepresented. The individual circumstances of each unrepresented litigant will have to be considered, as well as the nature of the issues, if not also the demands, of each case.
The general principles to be adopted by a court when a party is unrepresented in civil proceedings were expressed by Samuels JA in Rajski v Scitec Corporation Pty Ltd (unreported, New South Wales Court of Appeal, 16 June 1986) at 14, in these terms:
In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … at all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one gist of its lawful entitlement … an unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient to the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
In the same case, Mahoney J made these observations:
Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.
Those observations have been cited with approval in Re Morton, Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 514; Minogue, at para 28, and in Johnson v Johnson (1997) 139 FLR 384 at 406, where the Family Court also listed some matters to which a judicial officer should have regard when hearing cases involving unrepresented litigants. See also the remarks of Smith J in Panagopoulos v Southern Healthcare Network & Fountain (unreported, Supreme Court of Victoria, 25 August 1997).
These principles have no lesser application in a criminal trial. In a criminal trial, the duty to assist an unrepresented person is likely to be more extensive than the duty imposed on a judicial officer hearing civil proceedings.
In MacPherson v The Queen (1981) 147 CLR 512, evidence of a confession was led against an unrepresented accused, where there was a real issue as to the voluntary nature of the confession. The court held that, once a real issue of voluntariness of the confession had arisen, the trial judge in that case should have intervened and advised the accused of his right to seek a voir dire hearing. The remarks made by the members of the High Court provide some guidance to the task of judicial officers when unrepresented litigants appear before them. Gibbs CJ and Wilson J said:
There is no limited category of matters regarding which a judge must advise an unrepresented accused – the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial. And although no doubt some accused persons refuse the offer of legal representation for tactical reasons, an accused does not become disentitled to a fair trial because has declined, and even perversely declined, an offer of legal assistance.
At 535 Mason J said:
[A] judge can inform the accused as to his right whilst making it clear that he is not to be taken as advising the accused that he should necessarily exercise it … but this is by the way – the important consideration is that the judge should inform the accused of his right thereby putting him in the position in which he can make an effective choice.
Brennan J said at 546 – 547:
Finally, an accused who elects to defend himself forfeits none of his rights thereby. If he has not had a trial according to law, his intransigent refusal to accept legal representation is no ground for dismissing his appeal either under the proviso or otherwise. The absence of legal representation imposes a heavier burden upon the trial judge and denies an accused the assistance of an advocate who can usually present an accused’s case more effectively than the accused himself; but it is a circumstance which is entirely neutral on appeal except in so far as it is relevant to the fairness of the trial. In this connexion, with respect, I should not accept the view of Roden J, the third member of the Court of Criminal Appeal, that the categories of advice which a trial judge should give to an unrepresented accused are limited to his rights to challenge jurors, to give evidence, to make an unsworn statement or to remain silent. Whether any and what advice should be given to an accused depends upon the circumstances of the particular case and of the particular accused. What can be said is that if it is necessary to give any advice, the necessity arises from the judge’s duty to ensure that the trial is fair. That duty does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case.
The principles in MacPherson have been applied on at least two occasions by the Court of Criminal Appeal in New South Wales. In R v Gidley [1984] 3 NSWLR 168, the court held that the trial judge had not erred in permitting the accused to tender a diary which the judge had held was not admissible as part of the prosecution case. Hunt J, with whom the other members of the court agreed, emphasised that a very clear distinction was drawn in MacPherson between advising an unrepresented accused what his rights were in relation to various matters and advising him how he could exercise those rights. Hunt J continued (at 181):
The duty of a trial judge to ensure that every accused has a fair trial thus obliges him to give an accused who is unrepresented such information and advice concerning his rights as is necessary to put him in a position where he can make an effective choice whether he should exercise those rights, but the trial judge must make it clear that he is not advising the accused either that he should exercise those rights or how he should conduct his case. Contrary to the submission of the accused in the present case, it is not part of a trial judge’s duty to advise an unrepresented accused against the tender of prejudicial material. It may be that in a particular case a trial judge will be obliged to advise an unrepresented accused of the likely prejudicial consequences of a course, which he is proposing to undertake so as to enable the accused to make an effective choice as to whether or not he should persist in that course, but the choice must remain that of the accused. There is no obligation upon the trial judge to do more. He may express his own opinion as to what would best serve the interests of the unrepresented accused if he feels it is appropriate but he is not under any obligation to do so, and his omission to give such advice does not amount to an error of law.
In this case the trial judge had left it to the accused to decide whether to tender the diary. When the accused had applied to tender the diary the trial judge reminded him of his previous ruling and told him it was entirely a matter for him whether he wished to tender it.
Later in R v Zorad (1990) 19 NSWLR 91 at 99, the Court of Criminal Appeal said:
The judge’s duty is to ensure that the unrepresented accused is put in a position where he is able to make an effective choice as to the exercise of his rights during the course of the trial, but is not to tell him how to exercise those rights.
In that case the Court held that the trial judge was not under a duty to reformulate questions which were not in proper form and were rejected for that reason. Instead, the court had a duty to give an unrepresented accused such advice as is necessary to ensure that he has a fair trial which would include, if it became necessary, an explanation as to the form in which questions should be asked but not to put the questions in that form for the accused. The Court also held that the trial judge had the duty to give advice that, notwithstanding a ruling on a voir dire as to the voluntariness of admissions, the accused would be permitted to raise the same factual matters before the jury and to inform the accused of the consequences of a failure to comply with the rule in Browne v Dunn (1893) 6 R 67.
The duties of a trial judge when an accused is unrepresented were examined at length in R v White (2003) 7 VR 442 at paras [33] to [34] by Chernov JA with whom Charles and Eames JJA agreed. The issues for the trial judge were expressed by Chernov JA in these terms:
While it is the duty of the judge to ensure that the accused is not subjected to a trial that is unfair, he or she must refrain from becoming an advocate for the unrepresented accused or otherwise unduly interfere with the conduct of the trial. Thus, the judge must ensure the accused is fully aware of the legal position in relation to the substantive and the procedural aspects of the case without effectively advising him or her of what course should be followed, or unduly interfering in the Crown case as if the judge was the accused’s counsel.
It will have been noticed in this passage it is suggested that the judicial officer may advise upon both substantive and procedural aspects of the case.
In Dietrich v The Queen (1992) 177 CLR 292 at 334 to 335, Deane J said:
While the prosecution has a duty to act fairly and part of the function of a presiding judge is to seek to ensure that a criminal trial is fair, neither prosecutor nor judge can or should provide the advice, guidance and representation which an accused must ordinarily have if his case is to be properly presented. Thus, it is no part of the function of a prosecutor or trial judge to advise an accused before the commencement of a trial about the legal issues which might arise on the trial, about what evidence will or will not be admissible in relation to them, about what inquiries should be made to ascertain what evidence is available, about what available evidence should be called, about possible defences, about the possible consequences of cross‑examination, about the desirability or otherwise of giving sworn evidence or about any of a multitude of other questions which counsel appearing for an accused must consider and in respect of which such counsel must advise in the course of the preparation of a criminal trial. Nor is it consistent with the function of prosecutor or trial judge to conduct, or advise on the conduct of, the case for the defence at the trial. (Footnote omitted)
Decisions since Dietrich indicate that much of what is expressed in that passage remains correct but must be qualified by the fact that the interests of a fair trial will require the trial judge to alert the unrepresented counsel to the implications or consequences of a conduct of his defence or to inform the accused of his rights on certain issues. The other decisions to which I have referred indicate that, in a criminal trial, it is appropriate for the judicial officer to explain to an accused person the choices open to him and so inform the accused of his rights in relation to the conduct of the trial, remembering always, as Hunt J emphasised, the distinction between advising as to rights and advising the accused how to exercise those rights.
These principles have long been applied in this State. In Cooling v Steel (1971) 2 SASR 249 at 251, Wells J explained how it is incumbent on judicial officers to explain to an unrepresented party the rights and duties of the defendant in the trial:
In general, the court should ensure that the defendant is appraised [sic] of his rights and his duties at all times and be vigilant to keep the proceedings free of error or misunderstanding.
More recently the principles were considered in Hittmann v Police (1999) 202 LSJS 132 by Nyland J and in Gould v Police [2005] SASC 297 by White J.

Against that background I turn to the issues in this appeal.
Ground 1
The first ground of appeal is that the learned magistrate failed in his duty to ensure a fair trial in that he did not properly assist the appellant in relation to cross-examination of all prosecution witnesses and otherwise in the presentation of the defence case. Although a magistrate has an obligation to apprise an unrepresented accused of his rights and of court procedures including cross‑examination, the magistrate has no obligation to conduct the cross‑examination of witnesses on behalf of the accused. In this respect, the observations in R v Zorad must be borne in mind. If the magistrate does cross‑examine, there is a real risk of the magistrate prejudicing his position as the independent and impartial arbiter. The magistrate might ask some questions based on what the accused has said, but care must be taken lest the magistrate become an advocate for the accused.
In this case the magistrate gave limited and proper assistance to the appellant. He had explained the procedures before the trial began. He had informed him of his right to cross-examination and what that right involved. He informed him of the implications of the rule in Browne v Dunn without expressly referring to the name of that case. On a number of occasions the magistrate also asked questions of witnesses based on remarks which had been made by the accused and which provided a foundation for the questions asked by the magistrate. It is sufficient to dispose of this ground to list by reference to pages in the transcript the instances when the magistrate did give assistance to the accused in terms of asking questions. I refer to pp 8, 9, 19, 20, 29, 30 and 39. This ground of appeal fails to have regard to what occurred at the trial. The magistrate did give limited and reasonable assistance to the appellant in relation to the asking of questions. There is no substance in this ground.
A second aspect of this same ground is that the magistrate did not properly advise the appellant of his right to call witnesses including any medical experts in relation to his mental health. This ground is founded on the fact that, at the time of the offending, the appellant was suffering a mental condition described as an obsessive compulsive disorder. The symptoms of this disorder include disturbing thoughts that can sometimes cause overwhelming anxiety and compulsive behaviour that might significantly interfere with normal life. The anxiety can be heightened if the person suffering from the disorder is challenged as the appellant was on this occasion. That evidence was provided to the magistrate as part of a pre-sentence report which the magistrate had ordered before sentencing the appellant. It was submitted that the magistrate ought to have been alive to this situation and assisted the appellant by advising him of his right to call evidence to that effect.
There are two difficulties with this submission. The first is that it assumes a degree of knowledge on the part of the magistrate as to the appellant’s mental health which the magistrate either did not or could not have. The first two witnesses called in this case were the two ambulance officers who simply deposed to the events which led to them being spat upon. Thereafter, five police officers were called. As their evidence unfolded, it became apparent that they had called the ambulance officers because they had decided it was appropriate in all the circumstances to detain the appellant under the Mental Health Act for assessment. The fact that the police officers had reached that conclusion does not have the consequence that the magistrate should infer that the appellant had been suffering from any mental health disorder for any length of time. All that the magistrate knew was that the police had decided to act in that way because of the manner in which the appellant was conducting himself. I repeat the submission seeks to impute to the magistrate knowledge which he could not be fairly expected to have obtained and it must fail for that reason.
There is a second reason why I think this submission must fail. Even if evidence were called of the disorder from which the appellant was suffering, it would not affect the question of intention. There is no suggestion that the disorder was of such a kind that it would have affected the appellant’s intentions on this occasion.
The third aspect of this ground is that the magistrate did not properly advise the appellant as to all aspects of trial procedure. One instance is given. It is that the magistrate did not advise the appellant of his right to object to a police officer refreshing his memory from a log. When the transcript is examined, it is apparent that the circumstances in which the police officer refreshed his memory from the log were circumstances in which it would have been proper to have permitted the police officer to do so. To that extent, there is no substance in this ground. Furthermore, whilst the magistrate had a duty to acquaint the appellant with court procedures, it is not possible for a magistrate to anticipate every development in a trial and I do not think the failure to advise on this aspect has any substance.
The final aspect of this ground is that the magistrate permitted either leading questions or other inappropriate questions by the police prosecutor in the course of leading the prosecution case.
On examination, none of the instances complained of have substance. What were submitted to be leading questions were, in fact, not leading questions. In relation to questions which were asked of the appellant, there were some questions which were not particularly helpful but it cannot be said that they were objectionable. The last question complained of was objectionable, in that it contained three or four questions, instead of being limited to one. But that is the only objectionable quality of the question. That ground is not of sufficient substance to suggest there was any miscarriage of justice.
For all of these reasons, the arguments advanced in respect of ground 1 must fail.
Ground 2
The second ground is that the magistrate displayed bias at the conclusion of the prosecution case and did not approach the defence with an open mind, thereby depriving the appellant of the right to a fair trial.
An examination of the transcript shows that this ground is entirely without substance. The assertion must be viewed against the fact that the appellant had admitted, in open court, that he did not dispute that he had spat on the ambulance officers. By the time the prosecution case had concluded, that admission had been made more than once. It seems that the appellant’s case was that he had not intentionally spat at the ambulance officers.
At the conclusion of the prosecution case, the magistrate spelled out to the appellant the options which were then available to him. He pointed out that he could submit that there was no case to answer, but pointed out that five of the prosecution witnesses had given evidence that the appellant had spat and, therefore, a submission of no case to answer was unlikely to succeed. Given the admission of the appellant that he had spat at the ambulance officers and given that it is reasonable to infer a person’s intentions from their actions, these remarks were, in all the circumstances, reasonable and correct. In this respect, it should be noted that, a little later, after these remarks had been made - that is to say, immediately after the luncheon adjournment - the appellant reiterated that he had spat upon the ambulance officers.
The magistrate next advised the appellant that he could either go into the witness box and give evidence or not give evidence. He then went on to advise the appellant that he could, if he wished, plead guilty, and informed him that, even at that late stage, he might be entitled to a discount if he did plead guilty.
It is contended that the remarks made by the magistrate gave rise to an apprehension of bias. In this respect, I cannot agree.
I first have regard to the definition of apprehended bias in Johnson v Johnson (2000) 201 CLR 488 at [11], namely, whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. The definition was affirmed in Ebner v Official Trustee in Bankruptcy (2002) 205 CLR 337 at [6]. I also have regard to the remarks made by King CJ in Martin v Hayes (1992) 163 LSJS 56 at 59:
Judges and magistrates, by prudent intervention, can sometimes assist the parties to a resolution of the matters in dispute and may avert a protracted and unnecessary hearing. Magistrates preside in busy courts with heavy workloads. They can sometimes see that there is little prospect of a defence succeeding and that a defendant’s best interests will be served by a change of plea. An intimation of the provisional impressions and assessments of the magistrate may assist a defendant to a realistic reassessment of his position and to a change of plea. If such intimations do not, by language or manner, suggest that the magistrate has closed his mind before hearing all the evidence and arguments, a reasonable person should not deduce from them that the magistrate has prejudged the matter.
In my view, the remarks made by the magistrate certainly were of a kind which did not, in any manner, suggest that the magistrate had closed his mind to the issues. They were remarks of the kind identified by King CJ. Nothing would suggest to the fair-minded, independent observer that the magistrate had a closed mind on the issue. I repeat, the defendant had admitted that he had spat upon the ambulance officers. The only issue was whether the appellant had an intention to do so and, in this respect, it is relevant to note the remarks of the magistrate when he said, at p 50:
Whether you intended to hit them or not is a different issue by deliberately spitting at them.
It is clear that the magistrate identified the issue and, at that stage, had formed no conclusion as to whether the appellant had intentionally spat. In this respect, it is to be noted that the magistrate later drew a distinction between his use of the word “deliberate” and “intentional”.
For all these reasons, there is no substance in this ground.
Ground 3
The third ground is that the magistrate erred in two respects. The first complaint is that he did not permit the appellant’s mother to give evidence. The second is that he failed to advise the appellant of his right to seek an adjournment to enable the appellant to call his sister. It is contended that these two failures have resulted in a miscarriage of justice.
The appellant’s mother had been present in court while the prosecution witnesses were called. After he had given evidence, the appellant sought to call his mother as a witness. The magistrate refused the appellant leave to do so, stating that she could not be permitted to give evidence because she had been seated in the court throughout the day, that is to say, she would have heard the evidence of both the prosecution witnesses and the evidence of the appellant.
It is not clear whether an order for witnesses had been made. The transcript of the trial does not disclose such an order. In this respect, it is to be noted that the transcript does not include the preliminary remarks made by the magistrate before the hearing began. It is quite evident from later remarks made by the magistrate that he did make some remarks before the hearing began but these have not been transcribed.
It cannot be stressed too much that, where one of the parties is unrepresented, it is essential that the transcript record remarks made by the judicial officer presiding over the trial, for the purpose of providing guidance or instruction to the unrepresented litigant. As is evident from this appeal and from recent appeals in this Court, issues will arise as to the extent to which a judicial officer has informed an unrepresented litigant of that litigant’s rights and as to the extent to which the judicial officer has informed the litigant of relevant procedural issues or as to any substantive issue. For that reason, it is essential that the transcript record, not only the evidence, but also those kinds of remarks.
The determination of this ground of appeal does not turn on whether or not an order as to witnesses was made. The fact that the appellant’s mother had been in court was not a bar to her giving evidence but, instead, was a factor going to the weight of her evidence. Shortly stated, her presence throughout the proceedings was a factor relevant to the weight but not to the admissibility of her evidence. The magistrate should have allowed the appellant’s mother to be called.
After he had given his evidence, the appellant also informed the magistrate that he sought to call his sister. He informed the magistrate that she was working and that explained why she was not present. The magistrate said words to the effect that the appellant should have had his witness ready and available. Whilst it was plainly desirable for the appellant to have had his witnesses all present and ready to give evidence, he is to be excused for not having had his sister present. In this respect, it is relevant to note that he had his mother present to give evidence. The magistrate wrongly refused her permission to give evidence. Had she given evidence, it might well have been that the proceedings would have occupied the whole of the day listed for the hearing. The trial had been listed for three days. The appellant sought to call his sister at the end of the first day. The magistrate was, therefore, available to hear evidence the next day. In all the circumstances, he ought to have granted the appellant an adjournment to call his sister.
I turn to consider the consequences of these two errors on the part of the magistrate.
On this appeal, the appellant tendered affidavits of both his mother and his sister. In those affidavits both his mother and his sister state that they did not see the appellant spit. The appellant sought to call his mother and sister so that they could give evidence as to when a sheet had been held over his head. The appellant’s case was that he had been restrained with a white sheet or towel held over his head or over his throat and, on its removal, he had spat to clear his throat without intending to spit at any individual. Both the appellant’s mother and the appellant’s sister refer in their affidavits to seeing what the mother described as “a white sheet” and the sister described as “white muslin” being held over the appellant’s head. However, as they did not see the appellant spit, they are not in a position to throw any light on the issue whether the sheet or muslin or towel had been held over the face of the appellant before he had spat. Shortly stated, their evidence could not have thrown any light on the relevant issues.
Not every error will acquire an appeal to be allowed. Although the magistrate erred, there was no miscarriage of justice in consequence of that error.
Ground 4
The fourth ground of appeal is that the magistrate did not expressly direct himself on the relevant issues of law, namely, the presumption of innocence, the burden of proof and the elements of the offence of common assault.
The magistrate gave ex tempore reasons for his decision. A reference to paras 22, 31 and 32 of those reasons indicates that the magistrate did have regard to each of those separate factors. On more than one occasion, he stated in his reasons that the burden of proof was on the prosecution and that there was no onus of proof on the appellant at all.
As to the elements of the offence, the magistrate, in para 31, distinguishes between a deliberate act and an intentional act and finds that the appellant had the requisite intention to commit the offence.
The appellant’s submissions fail to have regard to the fact that these are ex tempore reasons. It might be that the presumption of innocence, the elements of the offence could have been spelt out in a little more detail but it cannot be said that the magistrate failed to have regard to them. There is, therefore, no miscarriage of justice.
On first reading I was concerned that in para 22 the magistrate had misstated the task before him. He said:
22Those are the competing accounts of the incident. It befalls me to decide which account I accept. I do that by a process of listening to each of the witnesses giving their evidence, having regard to the probabilities or improbabilities in the evidence of each of the witnesses, determining if there is consistency or inconsistency in the various accounts, having regard to a witness’ reliability and all the while having regard to the overriding principle that the onus of proof is on the prosecution and there is absolutely no onus of proof on the defendant at all. Having indicated that, I turn to the witnesses.
On first reading the expression “it befalls me to decide which account I accept”, I wondered whether the magistrate was taking the view that there were two opposing bodies of evidence which could not both be true and he therefore had to decide who was telling the truth. As Wells J observed in R v Calides (1983) 34 SASR 355 at 358 - 359, that is an inappropriate test. However, when para 22 is read as a whole it is clear, that the magistrate has not fallen into that error. Instead, he is simply determining how he should approach the evidence of the witnesses.
Ground 5
The fifth ground of appeal is that the magistrate made an error of fact when reciting the evidence in that he said that both victims had given evidence that the appellant had tilted his head backwards before spitting. In truth, only one of the two ambulance officers had said that. A further error of fact is identified, namely, that the magistrate said that every witness described the appellant as tilting his head backwards or turning your head backwards and deliberately spitting at the ambulance officers. An examination of the transcript shows that the magistrate has overstated the position. In fact, only four of the witnesses gave evidence to that effect. Here again, it is relevant to have regard to the fact that these are ex tempore reasons. Although the magistrate has made these errors of fact, the plain fact remains that there was a substantial body of evidence to that effect and it could not be said that the magistrate erred in relying on it. The errors do not give rise to any miscarriage of justice.
Ground 6
The sixth ground of appeal is that the learned magistrate erred by, in effect, eliciting opinion evidence from prosecution witnesses as to whether the act of spitting was deliberate or accidental. It is also contended that the learned magistrate did not make the necessary finding beyond reasonable doubt that the appellant intended to put the alleged victims in fear of being assaulted. The question to which objection was taken was, in all the circumstances, a proper question and no error there existed.
As to the requirement of intention, the magistrate deliberately addressed the question of intention in his reasons and there is no error. Furthermore, there was, in any event, evidence from the ambulance officers that they had both gone to wash the spittle from their face immediately after being spat upon. The essence of the assault simply required that there be an intention to commit the assault and this being a physical assault, the elements of the offence were sufficiently established.
The final ground of appeal is that the verdicts were unsafe and unsatisfactory because of the above grounds of appeal. As none of the grounds have been sustained this ground must also fail. I have carefully read the transcript more than once. I am satisfied that the appellant was rightly convicted.

For all of these reasons the appeal must be dismissed.
The orders will therefore be:
1.Appeal dismissed.
2.The appellant to pay the respondent’s costs fixed in the sum of $150.