Plos v Mroz - [2015] SADC 87

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
PLOS v MROZ
[2015] SADC 87
Judgment of His Honour Judge Tilmouth
2 June 2015
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT
Held 1. Whilst Magistrates are required to conduct proceedings in minor civil claims by means of an enquiry 'rather than an adversarial contest between the parties' and are neither bound by the rules of evidence, nor technicalities and legal forms, the fundamentals of a fair trial are not displaced, as the Magistrates Court remains subject to the requirements of procedural fairness;
2. Those principles include the opportunity to be confronted with material upon which a party is proposed to be contradicted, and the right to be given an opportunity to explain any matter upon which the court might make an adverse finding;
3. The Magistrate erred in making findings adverse to Mr Plos and his witness, because they were not furnished the opportunity to explain, by making too much of his failure to go to the police, in failing to weigh the evidentiary value of what he told the police, and in too readily dismissing significant contradictions in the evidence of Mr Mroz. These in conjunction, amount to reviewable errors requiring the court to rescind the judgment.
4. As such errors vitiate the judgment, it becomes necessary to rehear the evidence pertaining to flawed findings, given that the District Court does not enjoy the power to remit for rehearing.
5. Orders accordingly that the judgment entered by the Magistrate in favour of Mr Mroz on 29 August 2014 is rescinded. The matter is adjourned to a date to be fixed to rehear the matter in the District Court.
Criminal Law Consolidation Act 1935 (SA) s 5AA(b); Magistrates Court Act 1991 (SA) s 38, s 38(6), s 38(7)(d)(i)and (iii); Briginshaw v Briginshaw (1938) 60 CLR 336; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; District Court Act 1991 (SA) s 42B(1); R v Ciantar (2006) 16 VR 26; R v Burns (2009) 103 SASR 514; R v Weston [2009] QCA 331; R v Cook [2004] NSWCCA 52; Mule v The Queen 79 ALJR 1573; R v Karpany [1937] SASR 377, referred to.
Uelese v Minister for Immigration and Border Protection [2015] HCA 15; Harradine v The District Court of South Australia (2012) 280 LSJS 572; Warren v Coombes (1979) 142 CLR 531; MWJ v R (2005) 80 ALJR 329, applied.
Ready v Brown (1968) 118 CLR 165, discussed.

PLOS v MROZ
[2015] SADC 87
Application for review

This is an application for review of a minor civil judgment given in the Adelaide Magistrates Court, by which an order was made ordering the appellant Mr Plos, pay to the plaintiff and respondent Mr Mroz, $25,000 plus court and witness fees, by way of damages for personal injury caused during the course of an assault and battery.
The grounds of the appeal are essentially complaints that the evidence of Mr Mroz was improperly preferred to that of Mr Plos, that there was material undermining the credibility of Mr Mroz, that there were no, or no adequate findings, as to why the plaintiff and his witness were not accepted, and that it was inappropriate to make an order for the entire sum claimed, undiminished for contributory negligence.
Underlying Circumstances
The background circumstances are these. Mr Plos is the landlord and Mr Mroz the tenant of the property owned by Mr Plos situated at Unit 1/21 Carlton Road, Camden Park. The block of units at this address was built by him and his father some 40 years earlier. There were some prior difficulties between the parties in the tenancy relationship. For example in September 2010, Mr Plos brought an application to the Residential Tenancies Tribunal for the eviction of Mr Mroz over the keeping of a dog at the premises in breach of the terms of the lease. A counter application by Mr Mroz was made for compensation over a faulty cooking appliance. The Tribunal dismissed the application for vacant possession and ordered payment of compensation by Mr Plos of $800.[1] There appears to have been continuing problems between them of this kind.
[1] Exhibit P7 (all references to Exhibit numbers are those from the Magistrates Court hearing).
There can be no doubt that there was an altercation between the two men outside the subject premises on Friday 10 September 2010 at about 8.30 pm. Mr Plos drove there shortly beforehand in his tray-top utility with his partner, Ms Schlangen. Ms Schlangen resided in Unit 3. It appears that Mr Plos would stay there with her when he was visiting Adelaide. His principal place of residence was at Elliston on the West Coast. Mr Mroz was outside Unit 1. Whatever the precise course of events thereafter, in the altercation that followed, Mr Mroz sustained serious injury to his mouth and lips, including deep lacerations and abrasions. Mr Plos no doubt departed shortly thereafter. As he did so, Mr Mroz telephoned the Netley police at around 8.55pm, on his landline. There is no evidence whether this was recorded or not. Several police attended the premises shortly thereafter and spoke with him.
A police apprehension incident report prepared with respect to this attendance, reports ‘body area: mouth’, ‘physical act: punch’, ‘weapon: nil weapon used’.[2] It further reports Mr Mroz had consumed alcohol prior to the incident and the police assessed him as ‘moderately affected’ at the time. Potential offences were described in the report as ‘commit an assault that causes harm – basic offence’. Had a weapon been allegedly used, this description was likely to have been an aggravated form of that offence: s 5AA(b) Criminal Law Consolidation Act 1935 (SA). The location was reported as being in the front yard of the premises.
[2] Exhibit D2.
Mr Mroz provided a statement recorded on a standard form witness statement to a Police Officer Milosevic at 8.55 pm, that Friday evening. The relevant extracts are these:[3]
[3]    Exhibit P11.
…
At about 8.30 pm on Friday 10^th September 2010, I was sitting on my front porch and my landlord drove into unit two’s driveway with his Toyota tray top SA Reg…. I don’t know it. My landlord: Mr Eddie PLOS came out of his car yelling and walking towards my property. He was yelling.
He said:     “If you did what I told you, you would have everything you wanted.”
I walked to the front footpath and I was standing near the fence that separates my unit and unit two (2) on my property to see what he wanted. Eddie then put an iron pole in my chest. The pole was about fifty (50) centimetres long it looked like the thing you put in foundations.
I said,        “What the hell is this all about?”
He said,     “I have Troy coming down from residential tribunal hearing.”
The next thing Eddie punched me in the mouth with his right closed fist, once. I was stunned. Eddie then jumped in his car and drove down the street and his partner jumped into his car. I immediately called the Police.
I would describe Eddie as:
Caucasian of Italian decent, about One hundred and seventy (170) centimetres tall with a medium build. He has a big arse and small shoulders. He has a bald patch on top of his head. I don’t remember what he was wearing. I have known Eddie since 3^rd of October 2009 as he is my landlord, I would recognise him anywhere.
…
I have sustained injury to my mouth, cuts on the inside of my top and bottom lip and three of my teeth are loose.
Another police apprehension report records that on 8 January 2011, Mr Plos was requested to attend a formal interview about the matter. This took place on Monday 10 January 2011, and was video recorded. During this interview Mr Plos produced an iron pole and a torn grey jumper. These were seized by police. Photographs of the jumper were tendered before the Magistrate.
A summary of the interview prepared by police, demonstrates Mr Plos admitted going to the premises with his partner. It then proceeds as follows:[4]
He states that he arrived at the units with his partner and Mark Mroz approached him holding a camera and took a photo of him parking the car. He states that he got out of the car and told him to go home and walked him back to his block.
He states that Mroz came at him and pulled an Iron bar out from a bushy area and struck down at him with the pole towards the stomach. He states the end of the pole caught his jumper causing it to rip. He states that he grabbed the pole from him and pushed him off his property and he fell to the floor. He states that he is not sure but he could have hit Mroz with his hand in the face when he pushed him away, but it was not his intention.
Following the interview he was told he would be reported for an aggravated assault.
[4] Exhibit P12.
The documentary trail as to what happened thereafter is incomplete, save that Mr Plos was informed by the Adelaide Criminal Justice Section of the South Australian Police Department by letter dated 5 May 2013, ‘I have reviewed the charge of Assault Cause Harm that you were reported for … will be withdrawn and therefore not laid before the Court’. Although that decision possibly means police prosecutions considered there was no reasonable prospect of conviction, it says nothing about the underlying merits of this matter, as this case is to be judged against the lesser civil onus of proof.
Ms Schlangen, also provided a statement to the same police officer on 10 January 2011. She confirmed arriving with Mr Plos at the Unit, then observing Mr Mroz outside on his porch. She said he came over with a camera as they were getting out of the car, which was parked adjacent to the driveway. A photograph tendered before the Magistrate, depicts the tray top vehicle with Mr Plos towards the rear, walking towards the Unit and Ms Schlangen exiting the front passenger door.[5] It does not show Mr Plos to be carrying an iron bar or similar object at that point. Her statement then continues that she heard them talking to each other. As she did not want to hear, she in fact went inside her Unit. Her statement concludes:
A short time later I heard some shouting and Eddy (Mr Plos) came in to the unit and stated that Mark had hit him with a metal pole. I saw that his jumper was ripped and he had a mark on his leg.
Eddy was upset and he left in his vehicle to talk to a friend.
[5] Exhibit P9.
Mr Mroz visited his GP on Monday 13 September 2010, exhibiting obvious signs of facial injuries and difficulty in talking. He complained that he was hit in the face by his landlord after a verbal disagreement. Dr Anderson observed that both lips were swollen with lacerations and abrasions, which ‘clearly related to impact with the adjacent teeth’.[6] Four lower lateral teeth were seen to be ‘clearly loose with bleeding around their ‘gum …’ and the ‘upper right canine was broken off at gum level and there was trauma with fractures to the next tooth lateral to this’. He added in a report dated 24 November 2010, that:[7]
Certainly these injuries were entirely consistent with a very significant blow from a solid rod shaped object to the mouth area and they constituted significant facial injury.
[6] Exhibit P4.
[7] Exhibit P43
Mr Mroz was referred to a dental surgeon and examined for that purpose on 1 February 2011. Treatment on 3 March 2011 followed involving extractions, full upper dentures and five implants together with a hybrid bridge support for the implants to the lower jaw. These treatments proved to be far more expensive than the $25,000 later claimed in the proceedings.
The Evidence before the Magistrate
The dental surgeon told his Honour during the course of the trial on 14 July 2014:[8]
The appearance of his teeth … is consistent with trauma – because I wasn’t present at the time of the assault I cannot say that that is absolutely due to the assault. He could have had another accident or another assault a week earlier on, or a month earlier on that would still produce the same result.
[8] T6.2-.11.
Dr Anderson who also gave evidence, was examined by Mr Plos on differences between the above report and an excerpt from a second report prepared by him, dated 6 January 2014. The material differences between the two are reflected by the passages in the latter report:[9]
Certainly these injuries were entirely consistent with a very significant blow inflicted with very significant force to the mouth area …
These injuries are only explicable by being caused by a forceful directed blow. An accidental contact i.e. such as falling on to the face would not and could not cause these injuries.
[9] Exhibit P5
Dr Anderson explained during his evidence that these changes were made because he was asked to express an opinion as to … ‘whether I thought the injury was consistent with a fall or not’. To this he responded:[10]
… specific to the lips and teeth themselves. If one fell onto a very localised object, like if one had fallen on to a bed post … [or] a flat paver … it would have to have an edge.
[10] T18.21-.32.
Later he added ‘it’s basically a localised injury and it would have to have been a localised object’.[11] When asked by the Magistrate why he had replaced the reference to ‘a very significant blow from a solid rod shaped object’ in his original report to ‘a very significant blow inflicted with very significance force’, he explained, ‘well my understanding from my original conversation with Mr Mroz was that the blow was from an object’.[12] He conceded that he could not say it was definitely a rod ‘but I am still saying that it was a very localised blow … caused by a localised specific thing’.[13] He added in a passage quoted by the Magistrate in his reasons:[14]
I am certainly not absolutely saying that a fist or knuckle couldn’t have caused that injury, but it would have to be very localised.
[11] T19.1-.2.
[12] T19.14-.18.
[13] T19.30-.36.
[14] T19.34-.36, Reasons para [22].
Dr Anderson added that on his examination ‘conversation with Mr Mroz was difficult because he found it very difficult to talk that day’.[15] The following exchange then took place during the evidence, beginning with a question from Mr Plos:[16]
[15] T19.16-.18.
[16] T19.19-.32.
QHe could explain everything to you but you misunderstood the word rod shaped object.
HIS HONOUR:     The doctor is not saying that.
ANo, no.
MR PLOS: Sorry.
HIS HONOUR:     The doctor, I think is probably trying to be as subjective as he can, whereas he was prepared to accept the first report was a rod. In the second report if he is asked exactly what it was, then I think he’s accepting he can’t say it was definitely a rod, is that fair or not?
AAbsolutely, yeah. But I’m still saying it was a very localised blow –
HIS HONOUR:     I accept that.
Mr Mroz was next called to the witness stand. He confirmed Mr Plos drove into the driveway, parked more or less opposite him, and then ‘came out yelling rubbish … and I said to him ‘what the hell now’.[17] He mentioned there were some problems with the Unit, that the relationship had ‘deteriorated’ and Mr Plos had been abusive and threatening in the past.[18] Mr Mroz asserted that no picture was taken in the driveway by him that night. He said Mr Plos came towards him on a grassed area ‘screaming and shouting’. He then walked towards Mr Plos:[19]
I got an iron bar or whatever put on my chest which I sort of tried to push away, … and I sort of tried to push him away with one hand and basically turned to walk away and the next thing then … just lent it on my chest with one hand …
[17] T35.22-.23.
[18] T42.22- 23.
[19] T46.25- 47.7.
Mr Mroz said that this was done with the end (presumably of the bar) and that he ‘rested the bar sort of … on my chest I think it had a bit of a bend in it … he took it back’.[20] He went on to explain that as he turned to walk away ‘out of the corner of my eye, bang – straight into … and with that immediately after that he got in his truck’.[21] He further explained that as he rotated to the left ‘I copped the punch full on in the mouth … I was spitting teeth and blood and everything else I went straight into the unit to call the police’.[22]
[20] T47.7- 20.
[21] T47.31-34.
[22] T48.2- 7.
Mr Plos interposed that he took the iron bar he claimed to be produced by Mr Mroz, before driving away. He said ‘when I first received the iron bar I had it in my right hand as Mr Mroz was falling on me after striking me’.[23] He again asserted that he was photographed getting out of the car that night and produced the photograph, from a bundle supplied by Mr Mroz. Following an examination of the provenance of these photographs by the Magistrate, Mr Mroz eventually conceded that he had taken the photograph ‘but I can’t remember when that was taken’, despite at first being sure that it was not taken on that night.[24] The nature of this material demonstrates that it was unquestionably taken on the night of the incident. It was found in context with a photograph taken by Mr Mroz himself later that evening, shortly after 9 pm.
[23] T 49.1 - .10
[24] T 51.31 - .33
Mr Plos explained that he did not approach Mr Mroz, as he had stopped near the driveway. He told Mr Mroz to ‘go back to your unit’. There was an exchange when Mr Mroz called the partner of Mr Plos by an unseemly expression and then Mr Mroz:[25]
… reached into that palm tree right there (indicates) and inside was this metal rod. He pulled it out and said I have had enough of you Plossy … and swung at me.
[25] T 56.27 – 57.6
He confirmed that Ms Schlangen went into her Unit. He understood that she had not seen anything, although he thought she might have heard some parts of the incident. Afterwards he went to her Unit, gave her his ripped jumper, and stated to her ‘there has been an altercation … I have to get out of here for a while. I don’t want any more’.[26]
[26] T59. 14-18
Mr Plos described the rod as a construction rod, ‘reinforcing for cement work’.[27] He denied that it had come from the back of his utility, claiming he had not been involved in the construction industry for some 14 years and that he worked as a tiler.[28] Mr Mroz then volunteered ‘I don’t know where it came from to be honest with you’.[29] Mr Plos continued to explain that he was hit with the bar which ‘broke the jumper’ … ‘it fell on to me’, it ‘scraped my chest’, and ‘put a vee cut into the jumper’.[30] He asserted the jumper became torn and that the pipe hit his leg and he grabbed it as it was falling on him on the driveway.[31] He added: [32]
I pushed the whole lot back, he fell on his bum on the grass and I said to him with the iron bar in my hand “you are too old for this go” and walked back inside to my partner and said “look at this” I said “this is crap I am getting out of here.” I then got in the car and left and I went for a drive to cool down.
Mr Mroz himself denied having anything in his hands, including of course a rod or a pipe.[33]
[27] T60.5.
[28] T59. 23-.29.
[29] T60.35.
[30] T61.4-16.
[31] T61.34-37.
[32] T62.7-.14.
[33] T67.2.
Ms Schlangen was next called to give evidence. Examined by his Honour, she confirmed they had driven and parked there that night and that she had gotten out and seen Mr Mroz take a photograph of them as he was standing in front of his Unit. Following this Mr Plos said to her ‘looks like trouble you had better get inside’, which she did.[34] She told the court he came back later ‘very agitated’, stating ‘I was attacked I have to get out of here and he went to a friend’s place to calm down’.[35]
[34] T68.31-32
[35] T68.31-.37.

She professed to being unaware the police called upon her unit that night. She did admit to hearing knocking at a window after she had fallen asleep, but as she did not detect voices explaining who they were, and as she was scared, she did not answer the door. She confirmed that Mr Plos may have kept some tools and other items on the tray top, but there was no examination of her about anything such as a rod or a pipe, and she was not asked whether she saw one being taken from it.
Towards the end of the proceedings, his Honour inquired of Mr Mroz why he had told his GP that he had been hit with a metal bar when his case was otherwise.[36] He responded by supposing ‘Dr Anderson might have misinterpreted as me saying I was hit … speaking was very difficult’. He then added:[37]
But it was only sometime later that the police notified me that they asked me if it was with a batton or something, I said, no that is not correct. They said oh it is on your doctor’s report and I said well I will get that cleared up with the doctor because no, he did not attack me with a weapon.
[36] T71.26-72.1.
[37] T72.2 - .7.
His Honour next asked Mr Plos why he did not report the incident to the police, if in fact he was attacked. To this he responded:[38]
Because I did not want anything more to do with Mr Mroz. I wanted to finish his tenancy and go … for me to talk publicly and state my case, it is very hard for me … there has to be some forgiveness in the world … if I am going to chase everything, yes it was a very savage attempt, but you could also look at it, I was very lucky.
[38] T83.31 – 84.11.
The reasons for judgment
His Honour was faced with perplexing and confusing evidence and contradictory facts. He closely analysed the evidence in considerable detail. The key points in his process of reasoning were these:
(1)the photograph of Mr Plos in the driveway was taken very shortly before the incident took place; for reasons he did not fully understand, Mr Mroz denied taking the photograph;[39]
(2)Mr Plos was an unsatisfactory witness because he left his partner inside her Unit despite his concern there might be trouble; he could not understand why he approached Mr Mroz unless to confront him,[40] and instead of reporting the matter to police Mr Plos left the area leaving his partner in her Unit even though ‘he claimed to be concerned for her welfare;[41]
(3)Since Mr Plos must have known through Ms Schlangen that the police attended at the Unit that night, why had he not contacted the police to report a serious assault against him;[42]
(4)Mr Plos claimed during the course of his police interview that he was not prepared for his partner to be interviewed, a matter that ‘weighed in the balance of the present action’;[43]
(5)the iron bar produced by Mr Plos to police was clearly a reinforcing rod for concrete, a use acknowledged by Mr Plos.[44]
[39] Reasons para 6.
[40] Reasons para 16.1.
[41] Reasons para 16.2.
[42] Reasons para 16.3.
[43] Reasons para 16.4.
[44] Reasons para 16.5.
His Honour was ultimately satisfied on balance, that the rod came from the back of the tray top utility and that Mr Plos was ‘attempting to fabricate evidence to support a defence to potential criminal charges, which he then apprehended might be laid against him’.[45]
[45] Reasons para 17.
As to the damaged woollen jumper, his Honour concluded ‘I would be astounded if a metal bar could tear a woollen jumper in that way … without causing a significant injury to Mr Plos’.[46] Although his Honour considered that Mr Mroz was not an inspiring witness, he felt unable to disbelieve any of his evidence.[47] So far as causation is concerned, after quoting portions of the evidence of Doctor Anderson as to the potential causes of injury, his Honour concluded on the balance of probabilities according to the principle established by the High Court in Briginshaw v Briginshaw,[48] ‘that Mr Mroz was struck in the face by a fist’.[49]
[46] Reasons para 18.
[47] Reasons para 19.
[48] (1938) 60 CLR 336.
[49] Reasons para 22.
Appellate review
It is opportune to acknowledged that Magistrates are called upon to determine difficult factual issues, often in trying circumstances and under considerable time pressures. The parties here were unable to stick to relevancies and proved difficult to extract evidence from in a coherent manner, an observation borne out from reading the transcript. Magistrates are required to conduct proceedings in minor civil claims by means of an enquiry ‘rather than an adversarial contest between the parties, and they are neither bound by the rules of evidence, nor technicalities and legal forms: Magistrates Court Act 1991 (SA) s 38.
Nevertheless, the fundamentals of a fair trial are not displaced, for even though a Tribunal may be bound to inform itself on any matter as it thinks appropriate, as is the case in respect of the minor civil jurisdiction of the Magistrates Court, the court remains ‘subject to the requirements of procedural fairness’: Uelese v Minister for Immigration and Boarder Protection.[50] These principles include the opportunity to be confronted with material upon which a party is proposed to be contradicted, and the right to be given an opportunity to explain any matter upon which the court might make adverse findings: Heatley v Tasmanian Racing and Gaming Commission,[51] FAI Insurance Ltd v Winneke,[52] Dixon v Commonwealth.[53]
[50] [2015] HCA 15, [102] and the authorities referred to in footnote 64.
[51] (1977) 137 CLR 487, 499.
[52] (1982) 151 CLR 342, 383-384.
[53] (1981) 61 ALR 173, 179.
The right of review against such decisions is conferred by s 38(6) of the Magistrates Court Act 1991 (SA). Section 38(7)(d)(i) and (ii) thereof furnishes the District Court with powers of affirmation and rescission as well as the capacity to ‘substitute a judgment … [it] … considers appropriate’. There is no power of remission except in respect of reviews against default or summary judgments (s 38(7)(d)(iii)). These rights of review are not governed by the administrative and disciplinary sections contained in Part 6 Subdivisions 1-3 of the District Court Act 1991 (SA), because of s 42B(1) thereof, so that the application for review therefore stands to be determined according to the principles summarised by Blue J in Harradine v The District Court of South Australia.[54] These principles, to paraphrase, are that a review is neither in the nature of an appeal stricto sensu, nor is it necessarily a hearing de novo or by way of rehearing. Rather the District Court may inform itself as it thinks fit, act according to the substantial merits of the case, may rehear evidence unconfined by the principles of “fresh evidence”, and by having regard to the evidence adduced below and the Magistrate’s findings of fact. Furthermore, should the review court form the view that a Magistrate made an error vitiating the judgment, or had not made findings of fact necessary to determine the matter, it becomes necessary to re-hear the evidence pertaining to the flawed findings, given it does not enjoy the power to remit for rehearing.[55]
[54] (2012) 280 LSJS 572; [2012] SASC 96, [53].
[55] Ibid, [53] (5).
Wisely, the learned Magistrate did not resolve the conflicting evidence on the basis of credit or demeanour. Rather he made primary findings of fact and drew inference from the proven objective circumstances. In that situation the position on review is as stated in Warren v Coombes:[56]
… in general on an appeal by way of rehearing from a judge sitting without a jury an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.
[56] (1979) 142 CLR 531, per Gibbs ACJ, Jacobs and Murphy JJ.
The reasons of the learned Magistrate
With these principles steadily in mind, it is now appropriate to return to the evidence and the reasons of the Magistrate. There can be no doubt that the following conclusions can be drawn from the evidence.
The nature and extent of the injuries were significant. First, Mr Mroz suffered serious injuries to the face and mouth area that night in the altercation between the parties, causing the swelling, the ‘deep and gaped’ lacerations, and abrasions observed by Dr Anderson, as well as the ‘obvious trauma to both upper and lower dentitian’ and the severely damaged teeth. Second, such injuries were inherently unlikely to be caused by falling to the ground, whether on the lawn or even on the pavement of the driveway, in light of the opinions expressed by Dr Anderson noted above. Three, the nature and extent of such injuries were in fact more likely than either of these potential causes to have been sustained from an object such as a direct blow with the rod or pipe described in the evidence. Four, there is no doubt such a rod or pipe was produced that night, the elusive question being who produced it.
Putting the nature of the injuries aside for the moment, the following proven facts are significant. Five, Mr Mroz telephoned the police immediately afterwards and very soon thereafter claimed Mr Plos had produced an ‘iron pole’ and swung it at him, and to have been punched to the mouth with a fist. He made no claim at this time to an assault with any kind of weapon. Six, Mr Mroz visited his GP the following Monday, 13 September 2010. He gave Dr Anderson to understand that the injuries were inflicted by ‘a very significant blow from a solid rod shaped object’. Seven, Mr Plos decamped the scene, rather than remaining at his partner’s adjoining Unit. Eight, he was interviewed by the police on 10 January 2011, in which he claimed Mr Mroz ‘came at him and pulled an iron bar out from a bushy area and struck’ at him which ‘caught his jumper causing it to rip’. He took possession of the pole at the time of the altercation and produced it to the police at this interview. He was then ‘reported for assault cause harm’, not for an aggravated assault with a weapon. No charge was actually laid.
Fact finding - analysis
It is from these proven facts that the fact finding process becomes more vexed. But first it is necessary to pay due regard to the findings of the Magistrate.
The puzzling observation that Mr Mroz at first denied taking the photograph of Mr Plos very shortly before the incident in the driveway, was a justifiable one. It is not immediately apparent that he had any purpose to serve in denying it. Given the serious nature of his injuries and that he was, as he said to Officer Milosevic, ‘stunned’ by the blow to the face, it is hardly surprising that he failed to remember taking it. Had he something more deceptive in mind, he could have removed the image before giving discovery, so the fact that he did supply it rather supports the conclusion that he had forgotten. If anything, it was contrary to his interests to hand over the photograph, since it does not depict Mr Plos carrying anything, at least at the time the photograph was taken.
The conclusion that Mr Plos was an unsatisfactory witness because he left his partner inside her Unit and failed to report the matter to police, is more complicated. By sending her to the safety of the Unit, it might be reasoned he expected some trouble, but it is inconclusive as to whom initiated it. In any case, Mr Plos indicated that her Unit ‘locks up very good’.[57] His desire not to get her involved is understandable enough. That consideration is therefore entirely neutral. There was, on the other hand, some evidence of harassment on the part of Mr Mroz. Leaving her there afterwards, is also understandable on the basis that he wanted to avoid further confrontation.
[57] T80.34.
The failure to go to the police either at once or soon after, and perceiving they had attended her Unit that night, is equivocal. The finding that he ‘he must have known through Ms Schlangen the police attended at the Unit that night’, was not really canvassed in the evidence and assumes she knew the police had visited her and passed it on to him. Her evidence was in fact that she was unaware of any such visit, and Mr Plos denied being told the police had visited her.[58] There was moreover no conclusive proof that the police had even done so.
[58] T79.20-21.
As to the failure to report to the police, Mr Plos gave an explanation which was not inherently unlikely. His Honour appears to have regarded this consideration as a form of post-offence conduct that justified an adverse inference. There are indeed cases in which fleeing from the scene of a crime or attempts to evade apprehension, are properly led as evidence of guilt: R v Ciantar,[59] R v Burns,[60] and R v Weston.[61] However, before evidence of that type can be so used, it is necessary to be satisfied that it points only to a consciousness of guilt rather than, for instance, arising from the result of panic or fear, the wish to escape an unjust accusation, because of moral wrongdoing falling short of criminal behaviour, or to protect some other person: R v Ciantar,[62] and R v Cook.[63]The Magistrate neither embarked upon nor determined those alternative explanations. The explanations Mr Plos gave to Ms Schlangen shortly afterwards are entirely consistent with an innocent explanation.
[59] (2006) 16 VR 26.
[60] (2009) 103 SASR 514.
[61] [2009] QCA 331.
[62] (2006) 16 VR 26, [86].
[63] [2004] NSWCCA 52, [50].
The failure to complain or make a report to police is not generally relevant to any matter in issue in the proceeding: Ready v Brown.[64] In that case, an action for damages allegedly committed in the course of an unlawful arrest, following which the plaintiff was taken to a watch house, a trial Judge directed a jury trying the civil suit:
If a person had been subjected to the kind of treatment the plaintiff said he received, he might be expected to complain about it at the first opportunity. The plaintiff admits he did not complain about it at the watchhouse. He gave as a reason that he did not because of the treatment he saw meted out to a person at the watchhouse, and he said someone was given a push in the face and someone fell over.
[64] (1968) 118 CLR 165.
Holding this to be a misdirection, Barwick CJ reasoned:[65]
With great respect, in my opinion, the fact that the plaintiff did not complain at the watchhouse was not relevant to the issue of whether or not, prior to arrest, he used the offensive words attributed to him, and, in my opinion, the defendants would not have been entitled to establish by their own evidence his failure to complain. Whether or not the fact of his failure to complain in the circumstances bore on the plaintiff's credit was a question to which the trial judge would need to give attention. The same may be said as to questions directed in cross-examination as to the plaintiff's reasons for not having complained. But I would respect-fully disagree with the passage which I have quoted from the trial judge's summing up if it is to be regarded as of general application. I cannot think that the failure of an arrested man to complain of having been arrested necessarily bears upon the credit to be given to his account upon some issue arising in the trial. Much must depend on the issue and the circumstances. Generally speaking, a man is entitled to be silent.
Although distinguishable on the facts, this passage serves to strengthen the conclusion that before determining Mr Plos was not a credible witness, an inquiry was required as to why he did not complain to the police and whether that was explicable for some other reason. The reason he gave the Magistrate was far from implausible especially given the past history of relations between the parties.
[65] Ibid, 168-169.
Next, to the extent that the conclusions of the Magistrate depended upon the observation that Mr Plos claimed during the course of his police interview that he was not prepared for his partner to be interviewed, was a matter that ‘weighed in the balance of the present action’, it is in the same category. Once again, it was necessary to consider whether that stance was borne out of a feeling of guilt, or simply the result of a desire to protect her and not have her unnecessarily involved. The fact was that he did not appreciate she had seen anything. In any case he told the police in the interview of 8 January 2011 ‘he arrived at the Unit with his partner…’. Very shortly after indicating he did not want her interviewed, he capitulated.
Likewise, the observation made earlier in his Honours reasons, suggesting Ms Schlangen might have deliberately avoided speaking to police that night when they attended her Unit afterwards, and the later observation ‘his partner made herself unavailable for comment probably at Mr Plos’ direction’, was not canvassed in the evidence either. His Honour did not explain the basis on which he drew that conclusion and there is no underlying proof of the facts upon which it is based. As the joint judgment of Gummow, Kirby and Callinan JJ in MWJ v R,[66] demonstrates, in circumstances in which a witness is questioned about a particular issue:
[39] One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her.
Moreover his Honour did not appear to turn his mind to the fact that the evidence given by Ms Schlangen of the after events, tended to rebut any supposition that Mr Plos was ‘attempting to fabricate evidence’.
[66] (2005) 80 ALJR 329.
Still further, there was no direct evidence supporting the conclusion that the rod came from the back of the tray top utility. Of course, an inference to that effect is open, but Mr Plos denied it and Ms Schlangen was not asked about it. For his part, Mr Mroz did not claim it was so removed. There was really no direct evidence that the bar belonged to Mr Plos, except perhaps a remote connection to his past line of work. It was equally possible that it might have been kept secreted in the tree for Mr Mroz’s own protection, although that prospect was not canvassed by anyone either, apart from Mr Plos himself.
As to the damaged woollen jumper, his Honour concluded ‘I would be astounded if a metal bar could tear a woollen jumper in that way … without causing a significant injury to Mr Plos’. It is true to say from an uninformed lay point of view, that the tears appear to have formed straight lines. In the absence of expert assistance on the point, it is not open to draw much of a conclusion about this that is other than speculative. In the absence of the bar itself and not knowing if it had rough, sharp or staggered surfaces (Mr Mroz described it as having a bend,[67] and Mr Plos said it ‘had a slight dent … I … think … it even had some mortar on it’),[68] it was not open to make much of the nature of the jumper tears. The adverse conclusion rather supposes the jumper was deliberately torn shortly afterwards, so as to feign the appearance of an attack, whereas the statement of Mr Schlangan tends to refute that possibility.
[67] T47.15.
[68] T60.7-.9.
Of more substance, was the question of consistency on the part of Mr Mroz. It is to be recalled that he told the police he was assaulted by a fist, but that an iron bar was produced shortly beforehand. The first statement of Dr Anderson plainly suggests he was told three days later by Mr Mroz of ‘a blow from a solid rod shaped object’. This evidence of material inconsistency plainly affected the credibility of Mr Mroz, to the point that the question of his reliability as a witness is called into question. In a supplementary conclusion the Magistrate considered the differing accounts were explicable as a consequence of either confusion in the mind of Mr Mroz, or because of a misunderstanding by Dr Anderson. However it is difficult to see how he could be confused on such a significant topic as this, or how there could have been such a misunderstanding. The terms of Dr Anderson’s first report was at pains to establish the potential causes of the particular injury on the very premise that a rod like object was used, which he surely would have clarified before expressing himself in the way that he did. In any case, although Dr Anderson acknowledged some difficulty with Mr Mroz relaying his account, that was due to physical or mechanical impediment. He does not suggest there was any conceptual misunderstanding. In point of fact this evidence was that after speaking to Mr Mroz, ‘that the blow was from an object’. Still further, as seen above, the Magistrate himself disabused Mr Plos of the notion that Dr Anderson misunderstood the word ‘rod shaped object’.

A final consideration is this. As noted, Mr Plos made admissions to the police to being at the property at relevant times that night. He then gave a self-serving account of the events at variance to that given by Mr Mroz. This material is available in his case as evidence for, as well as against him, to be accorded ‘such weight as it appears to be entitled to in comparison with the facts clearly established by evidence’, even though it was not on oath and was not tested in cross-examination: Mule v The Queen,[69] R v Karpany.[70] It is not evident that his Honour considered this evidence at all.
[69] 79 ALJR 1573, [22]-[23].
[70] [1937] SASR 377, 379.
Miscellaneous issues
Apart from some, but not all of the above matters, Mr Plos alleged during the course of the review, that Mr Mroz made a false representation to the Residential Tenancies Tribunal in September 2010. He is as much entitled to explore that as going to the credit of Mr Mroz as a witness, as Mr Mroz is entitled to refute it. He will not however be permitted to explore whether or not the lease was broken by the presence of a dog in the Unit, as that is a collateral issue. Issues of what might or might not have been said on that night about the partner of Mr Plos, are relevant as forming part of the res gestae. Any conclusion about that is intimately tied to determining what the primary facts were in the first place. Mr Plos also made references to various telephone records, the relevance of which was far from apparent. He is however entitled to explore that evidence insofar as it might bear upon the events of the night in question, but not otherwise. As to the question of contribution, Mr Plos did not plead it. Nor did he argue that question before the Magistrate.
Mr Mroz raised the question whether he could claim more by way of damages than the $25,000 monetary jurisdictional limit imposed on the Magistrates court, as he faces dental expenses of more than that amount. There are two insurmountable obstacles to this course. The first is that, although the District Court enjoys an unlimited monetary jurisdiction in its Civil Division, as this is a proceeding taken in its Administrative and Disciplinary Division, it has no more power to exercise than the Magistrates Court had. The fact that the review jurisdiction is exercised by the District Court, confers no greater power, or no form of accrued jurisdiction, than the Court or Tribunal from which the review or appeal is brought. The second is that the statement of claim filed in the proceeding by Mr Mroz in the lower court limited the sum claimed to $25,000. Furthermore, he specifically affirmed before the Magistrate that he only pursued his claim $25,000, a stance noted in the reasons.[71]
[71] T82.9-18, Reasons para 29.
Conclusion and orders
Despite a careful analysis of the evidence, the conclusion can only be that the learned Magistrate fell into error in a number of respects. It may be readily accepted that the evidence on both sides was unsatisfactory and the Magistrates task a correspondingly difficult one. Nevertheless, there are demonstrable errors in the process of reasoning adopted by the Magistrate, in making findings adverse to Mr Plos and his witness on which they were not furnished the opportunity to explain, by making too much of his failure to go to the police and of the damaged jumper, the failure to adequately assess the evidence of Ms Schlangen, failing to weigh the evidentiary value of the admissions to the police, and too readily dismissing significant contradictions in the evidence of Mr Mroz.
These considerations in combination, amount to reviewable errors requiring the court to rescind the judgment. As this court is in no position to ‘substitute a judgment [it] considers appropriate’, given the want of power to remit, the court can only rehear the matter. Both parties should clearly understand that simply because the application for review has so far succeeded, that does not prefigure any particular outcome, one way or the other.
The formal order of the court is that the judgment entered by the Magistrate in favour of Mr Mroz on 29 August 2014 is rescinded pursuant to s 38(7)(d)(iv) of the Magistrates Court Act. The matter is adjourned to a date to be fixed to rehear the matter in the District Court.