Police v Brown - [2017] SASC 112

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BROWN
[2017] SASC 112
Judgment of The Honourable Justice Peek
29 August 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
The appellant was found guilty by a Magistrate of assault causing harm to Ms Conboy, his then partner (the complainant).
Shortly after the subject incident, the appellant was interviewed by police and admitted to punching the complainant about five times to the head. His explanation for doing so was that he had lost his temper after she had threatened to tell his 9 year old daughter, G, who was then sitting in another room of the house, of her mother’s (the appellant’s ex-wife’s) infidelity; he stated that the complainant was not posing any physical threat to either G or himself.
The defence case at trial, however, was that the appellant acted in defence of himself or G in that he believed that the complainant was about to physically attack himself or G.
The grounds of appeal were that the Magistrate erred in his assessment of: the appellant’s police interview; the evidence of the complainant’s mental health; aspects of G’s evidence; and the prior inconsistent statements of the complainant. It was also contended that the verdict was unsafe and unsatisfactory.
Held (dismissing the appeal):
(1)     The Magistrate did not err in relation to assertions in the police interview that the complainant was “verbally aggressive” or “pushing”; such assertions were overshadowed by the surrounding admissions of conduct which could not be construed as self-defence or defence of another.
(2)     The Magistrate carefully assessed the evidence relating to the complainant’s mental health, including the evidence of her ex-husband, and correctly considered its impact on her reliability as a witness.
(3)     In circumstances where defence counsel did not call Dr Bem to give evidence, the Magistrate was correct to conclude that the cross-examination in relation to his notes was of limited assistance in resolving the key issue at trial.
(4)     It was open to the Magistrate to reject aspects of G’s evidence and accept the evidence of the complainant in light of G’s age, that she was testifying at trial some years later, and had a poor memory of other events which occurred around the time of the assault.
(5)     The cumulative effect of any inconsistencies as between the complainant’s evidence at trial and her witness statements was not substantial and did not call into question the reliability of the essential narrative. In any event, it is not established that the Magistrate disregarded these matters.
(6)     Having regard to the cumulative effect of the above findings, the trial evidence, reasons of the Magistrate, and submissions on appeal, the verdict is not unsafe or unsatisfactory. Further, the finding beyond reasonable doubt of guilt was supported by the evidence.
Criminal Law Consolidation Act 1935 ss 15, 20(4), 353(1), referred to.
Bromley v The Queen (1986) 161 CLR 315; R v Weetra (2010) 108 SASR 232; Playford v Police [2017] SASC 26; Soulemezis v Dudley (Holdings) P/L (1987) 10 NSWLR 247; Sandery v Kowalski [2016] SASC 175; Vaiusu v The Queen [2017] NSWCCA 71; PK v The Queen [2012] NSWCCA 263; Taylor v Hayes (1990) 53 SASR 282, considered.

POLICE v BROWN
[2017] SASC 112
Magistrates Appeal: Criminal
PEEK J.

The appellant appeals against a Magistrate’s finding of guilt of an offence of assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (the Act) on his then partner, Ms Natasha Conboy (the complainant) on 15 November 2014 (the subject incident).
Introduction
There are a number of matters that are common ground.
The appellant has no previous convictions and is of previous good character. He and the complainant had been in a relationship for about 12 months prior to the subject incident but they were not living together. He had been previously married and has a daughter, G, born in 2005, from that marriage; she was nine years old at the time of the alleged offending and was living with him. The appellant and the complainant held different attitudes towards disciplining their respective children, which was an ongoing source of disagreement in their relationship.
The complainant had previously been married to Mr Glen Conboy, with whom she has two children. For some time the complainant had had some serious mental health problems and Mr Conboy had experienced manifestations of those problems during his marriage with the complainant.
The subject incident occurred on 15 November 2014 after the appellant, G, and the complainant had shared dinner together in the rear extension area at the appellant’s home. There was a door (the rear extension door) separating that area from a passageway which led to the lounge room in the front part of the house in which a television set was situated (the front lounge room); that passageway also led to the front door of the house.
After G had finished her meal, she asked to be excused and went to the front lounge room to watch television. The appellant and complainant stayed in the rear extension area where there then occurred a heated argument between them which culminated in the appellant punching the complainant to the head about five times in rapid succession (the subject punches), the subject matter of the charge.
The later observed state and injuries of the complainant
Shortly after the subject incident, at about 9:15pm, Dr Goodyear treated the complainant at the Wakefield Hospital Emergency Department and his affidavit was tendered by consent. He observed swelling and bruising around the right eye socket and swelling around the knuckle on her right index finger. He stated that she smelt of alcohol, but she was orientated in time, place and person and he would not have considered her as drunk.
In addition, SAPOL member Elliott who attended at the Wakefield Hospital observed swelling and bruising around the complainant’s right wrist and eye; some lumpy swelling to the rear of her head; dried blood on her nose, near the nostrils and on both cheeks such that it appeared she had been bleeding from the nose. Photographs of the complainant and her injuries were taken and are included in exhibit P2.
In his police interview shortly after the subject incident, the appellant clearly admitted both administering the subject punches[1] and that they caused the harm averred in the Information; in effect, he stated that he had lost his temper and offered no explanation that could amount to a defence to the charge.[2] However, at trial, while still admitting both the subject punches and the consequent harm, he now gave evidence of facts and belief (inconsistent with his police interview) that could constitute a defence pursuant to s 15 of the Act, being the defence of G or of himself or of both (the s 15 defence). These matters are discussed below.
[1] For completeness, there was, in addition to the subject punches, some allegations of the appellant dragging the complainant by the hair and pushing her. However, although particulars were not requested, it is plain that the parties proceeded on the basis that the actus reus of the assault charged in the Information was the application of the force that in fact caused the physical injuries relied upon to establish the required element of “harm”; and that application of force was clearly the subject punches.
[2] Relevant passages from the interview are reproduced below.
Consumption of alcohol leading up to the subject incident
As to the matter of consumption of alcohol leading up to the subject incident, there is again a deal of common ground. Both the appellant and the complainant stated that they had been drinking alcohol over an extended period leading up to the subject incident, although they differed to some extent concerning the respective degrees of consumption. However, neither accused the other of being particularly intoxicated and there is no ground of appeal concerning the matter of intoxication. The Magistrate adequately summarised the situation as follows:
Mr Brown and Ms Conboy sat down to eat about 7.30. They had been drinking for about one and a half hours. Ms Conboy said that there were only two bottles of wine drunk in her recollection, Mr Brown recalled three. Little turns on it, but it would seem that that amount of wine drunk over the period, it is more than likely than not, a third bottle was opened. The parties drank a reasonable amount of alcohol together and had a history of doing so. Mr Brown said he had consumed two beers at the barbeque and recalled they were “Stella” beers. He also mentioned a particular salad ingredient, which are trivial details. On the evidence, Ms Conboy drank more wine than Mr Brown.
I turn to a comparison between the substantive prosecution and defence cases at trial and thence to the grounds of appeal.
The prosecution case
The complainant’s evidence at trial was that in the afternoon on 15 November 2014, she, the appellant and G were shopping together and they later went to the appellant’s house. The complainant then started to prepare food for a barbeque while the appellant was outside repairing a fence. The meal was later cooked and was served at about 7:30pm to 8pm at the dinner table in the rear extension area.
The complainant gave evidence that there was some tension over dinner, particularly related to their differing attitudes to child rearing, table manners and discipline. After G had left the table to watch television, the arguing between them became increasingly heated and louder. The complainant stated that the appellant then closed the rear extension door so that G would not hear the arguing and that he later said “If you don’t calm down I’ll need to ask you to leave”; that the argument continued briefly further; and that she then said “This is not productive, I’m going home”. She added that she made a comment which she described thus in evidence-in-chief:
I’ve made a comment about maybe I should tell his daughter about some of the truths of the world. It related to some of the things that were discussed or disagreed about over time with child, honesty in children and being honest with children and different things relating to damage of my vehicle and different things that had happened in the past and discrepancies between my child’s behaviour and his daughter’s, my daughter’s behaviour and his daughter’s behaviour and interpretation of the events.
The complainant's evidence-in-chief as to what next occurred is adequately summarised by the Magistrate thus:
Ms Conboy then said as part of preparing to leave, she went to the hallway door to collect her handbag which was in the kitchen, a room on the right of the hall prior to the lounge (see Exhibit P7). Prior to that, Mr Brown had, during the course of this argument got up from the table and shut the door into the hallway so that their argument would not be so obvious to [G]. Ms Conboy started to leave the room, she says to get her bag, when Mr Brown came between her and the door and said that he would kill her if she dared to speak of these matters to [G]. That is the circumstances surrounding the end of Mr Brown’s marriage to [G]’s mother. Ms Conboy said he then grabbed her by the hair and spun her around to tell her that. This occurred about a metre in front of the door and Mr Brown said that Ms Conboy at this stage was loud and upset. Ms Conboy said Mr Brown then struck her six times on the face, the left eye and the nose and she sank to the ground. She tried to get up and claimed that Mr Brown then pushed her back on to the floor, or threw her against a stair. She crawled to get her phone which was in the room where the meal was consumed. She attempted to speak with Dr Bem, her treating psychiatrist unsuccessfully. She then rang Mr Conboy for assistance. Mr Brown, rang the police who engaged an ambulance.
The complainant went on to state that Mr Conboy arrived shortly after she had telephoned him and that he drove her to Wakefield Hospital where she was examined and treated.
The complainant was adamant that she never left the rear extension area, and that the rear extension door remained closed during the subject incident.
The appellant’s police interview
Police officers arrived at the appellant’s home shortly after the complainant and Mr Conboy had left. After arresting the appellant, informing him of his rights and cautioning him (as to which process no complaint is made), the appellant was taken to Holden Hill police station. The recording facilities were activated and, after certain formalities were attended to, the interview proceeded. It was recorded visually and aurally on disc. That disc together with an aide memoire typed transcript (the interview transcript) became exhibit P5.
The prosecution strongly relies upon the interview which may be shortly summarised as follows. First, the appellant stated that when he and the complainant were alone after dinner, she had said to him that she was going to tell G “how big a slut her mother is” and “she needs to know the truth” and she then opened the rear extension door and went through into the hallway leading to the front lounge. Second, he stated that he thought that she was going to tell G about her mother’s infidelity and he therefore grabbed her by her hair and threw her back into the rear extension area. Third, that she again tried to go to tell G about her mother and he then “snapped” and punched her about five times around the ear; that he slammed up into her; that she dropped to the ground and that he slammed into her face. Fourth, he did not assert at any stage of the interview that he had thought that the complainant was going to physically attack either G or himself. Fifth, that the interview constituted a complete confession to the commission of the subject charge (albeit in circumstances of provocation). Salient passages in the interview include the following.[3]
Pusey:Right, no worries, So you’ve been arrested because at about 8.00 o’clock this evening there’s obviously been some altercation between yourself and Tasha. She’s ended up, ended up with injuries at the Wakefield Hospital and police have been called down there to speak to her. What’s your version of what’s happened this evening?
Brown:      The short version or the long version?
Pusey:       Go for it, it’s your account, so.
Brown:Natasha suffers from bi-polar, which is schizophrenia. She suffers from a multiple personality disorder. If you wish to find evidence of that she was charged with arson like several years ago, and went through court and was accepted in court that she does suffer from that, through psychiatric things. Some of her personalities get a little bit exciting some days. Most of the time she’s on medication. Well she’s on medication all the time. But occasionally one of her other personalities start coming out. I have a little bit of trouble understanding it, but. But I notice that when it happens, to a certain degree, I’ve known her – oh – 8 years, but only intimately for the last nearly 2 I’d say. That’s after my separation from my wife. And she wasn’t the cause of the separation I need to stress. These personalities when they come out, I can usually pick them, I can, I’m learning that you just got to control it and keep her – but she can get quite verbally aggressive. And I noticed early today she, I could see she was having a little bit of a change in personality, but she was sort of being from herself to one of her other characters in her multiple personality disorder.
[3]    Two short passages to be referred to below in connection with ground 4 of appeal are emboldened.
The appellant proceeded to explain how the complainant was being critical of G’s table manners at dinner and that G finished her meal, asked to be excused, and went through the rear extension door into the lounge room. He stated that when they were alone the complainant started getting more verbally aggressive:
Brown:And then she started winding up and she just wouldn’t stop. And I could fucken see, you know, she was just in one of her bad moods, but I thought, just got to be positive, quieten her down … ? …. and then, then she said, oh well, if you’re not gonna tell her, I’m gonna go tell [G] – that’s my daughter – how big a slut her – I won’t – I’ll cut all the expletives out – how big a slut her mother is. I’m gonna go tell her now, because you know, she needs to know the truth. And I said – my mistake was standing up near the table … ? … and then she turned and went straight through the back door of the house. Which is … ? … you can see it over the extension, straight out there and my daughter was in there. And she went out there and she was out …. ? … ages, bit of a rage. I went there and she went, but started going into the living room where my daughter was and I realised she was, she was off the tree. So I grabbed her by the hair, physically, grabbed her up and I threw her back into the back room, and then pushed her. I think I pushed her on the table or something. And I was trying to quieten her down. I said, just quieten down, why do you, there’s no need to go on, there’s no need to go on about it, just quieten down … ? … just, there’s no need to do this, just quieten down. So I’m a little bit, like fairly got everything in line of what went on. I can’t remember, just, standing up near the back door. And she just got more verbally aggressive and everything. And pushing – she went to go – and said that’s it, I’m telling, I’m going to tell [G] how big an F-ing C and everything, and what her mother is. And she went to go. At this stage … ? … go to the back door from the back room, she went to grab it and I threw her in the corner and she said – oh I can’t remember what it was – and I’ve got a very, very long fuse. But when it goes I get physically violent. But last time I hit anyone was most probably over 30 years ago. So that’s. People see me and they’ve thought I’m mad …..? …..game … but ….
Pusey:       So what … what’s happened … ? …
Brown:But this time I, I – she – she was attacking my daughter and if you as a father will understand, anyone gets … ? … threatens your daughter, any verbal or physical way, you could have a duty to protect …
Pusey:       When you say she was attacking, attacking … ? …
Brown:She was gonna verbally, she was going to verbally tell her mother was a … ? …
Smith: So there wasn’t any physical attack on your daughter … ? …
Brown:      No it was just a verbal, a verbal …
Pusey:       Ok.
Brown:      The last thing I needed …
Pusey:       So you’ve shut the door and you’ve threatened … ? …
Brown:… and shut … shut … ? … I pushed her in the … ? … and then she – something happened, she came at me. I can’t – she said something to me and I can’t exactly – she was going, oh I’m gonna go tell your daughter and that and … And that was it. I snapped. It’s in the corner, I think I punched her three times, most probably three times around the ear, two times around the ear, most probably once – can’t say because she’s got – reddy colour tinted hair. And then I slammed up into her and then she dropped down and I then slammed straight up into her face. Came straight up and then just slammed straight into her face. And then she tripped over and fell on the floor where they – you took out a – a police officer came earlier in the evening, he had to take photographs of the blood on the floor. And the moment that happened I then stopped, and thought Christ, take control of yourself. And you know, like the whole thing was all coming around, don’t threaten my daughter. You know, no-one threatens my daughter, I don’t care who it is, I don’t care what level I go to, like as a father, I have a total duty to protect my daughter in any manner I have to. And that’s what I did. Was it right, was it wrong. All I can say is don’t threaten my daughter, she did.   (Emphasis added)

Mr Pusey then attempted to restate what he had been told thus:
Pusey:What I’ll do, is I’m just going to go back over the. Just check, we’ve got, yeh we’ve got enough time to get it … Gonna go back over the circumstances as you’ve relayed them to me and just so that I’ve got it correct. So rather than giving me the story again, if I get something wrong, feel free to chip in and correct me. …
Pusey… and things started getting heated. Daughter leaves the table, goes to watch TV. And you and Natasha still keep having an argument.
BrownShe was trying to have an argument.
PuseyYep. You still disagree and things are still not good between you two. And then she’s threatened to go and tell your daughter stuff about, your daughter’s mother, your ex-wife.
BrownThat’s right.
PuseyAt which point things have got a bit more physical. And you’ve grabbed her by the hair.
BrownYeh, at the entrance, the door into the living room where my daughter was.
PuseyYep, so, yep, so you’ve grabbed her by the hair to stop her from going into the same room as your daughter.
BrownMmm.
Puseyand you’ve taken her back, or thrown her back into the back room.
BrownThat’s correct, shut the back door.
PuseyYeh. You’ve shut the door. Things continue to be heated between you, at which point you’ve – she’s gone for the door again, which is now closed. You pushed her into the corner – or thrown into the corner. She’s gone into the corner. And then you say you’ve just snapped and you hit her.
Brownshe made a couple of comments, and then I lost it.
PuseyAnd then you’ve hit her a couple of times, is that right.
BrownI would take a guess, five.
PuseyOk, yep. What was, what was your reason for punching her.
BrownTo stop her, her verbal attack at my daughter. My daughter’s 9 years old.
PuseyYep.
BrownShe doesn’t need to know from a person who is irrational that her mother is a slut.
PuseyWhat – when you were in the room, you’re shut in the room with Natasha. Your daughter’s in another room. Were you – was Natasha posing you any threat at that time, physical threat.
BrownMost probably not, no, she’d threatened my daughter.
PuseySo, so while you’re having this argument, or when you’ve, before you’ve hit her, you haven’t thought that she’s gonna hurt you physically in any way, that she’s …
BrownNo, no.
PuseyAlright. No worries. And you’ll probably like everybody else thing this is a stupid question but I do have to ask it, did she give you any permission to punch her.
BrownSorry.
PuseyDid she give you any permission to punch her.
BrownThat’s a silly question, but I’m sure …
Pusey … ? … most people say exactly the same thing … ? …
Brown… ? … n no no no, she didn’t ask … ? … but she was being sufficiently aggressive verbally and, you know, she might have pushed me, I don’t, I don’t know, really don’t know. She’s actually very lucky at the present moment. Six months ago I had a very major shoulder operation on my right shoulder. I have got a very limited strength in it still now, to what I did have.   And I use my right arm. So. Just lucky that I got, for her, I was actually moderately disabled in the arm, otherwise it would have been a hell of a lot worse.
PuseyRight. I’ve spoken to the officers who are with Natasha at the moment and he’s relayed what she’s relayed to him. So what I’m gonna do is I’ve made some notes, I’m just gonna run through this. From what I’ve written down it’s very similar to what you’ve said. But I’ll go through what he’s relayed to me, and then if you agree or disagree or whatever with the points as I go through them you can feel free to tell me how you feel that it happened, alright.
BrownSounds fair.
PuseySo she says around 8.00 o’clock this evening, which is not too far off from when you’ve told me, you were arguing, you start arguing about your children and her children, and they way that they’re disciplined differently. She says that you got angry at her and she made some comments to you and you said to her that she had to – if she kept making those comments then you wanted her to leave the house.
BrownYep, yeh I could see she was going, she was losing it, yes, that’s most probably true.
PuseyShe said she walked towards the door and she makes – she says she makes another comment about telling your daughter the truth, she says. You got angry, grabbed her hair and pulled away from the door. Told her that if she was gonna, if she ever said that she was gonna tell your daughter the truth again, that you would kill her. Do you remember saying that.
BrownThat could be right actually.
PuseyShe then says that you’ve punched her with both fists, she estimates five or six times, about the head and face, after which she fell to the ground. Is that about right.
BrownIt was only with the right fist.
PuseyOk.
BrownThe – when I pulled her away from the door it wasn’t the door at the back of the house, it was the door going into the living room where my daughter was, and she witnessed that. I haven’t talked to her about it, I’ve only just briefly seen my daughter since then. And she ran out the house.
PuseyOk. And then she says that you were the one that called the 000 call and asked for the ambulance to come along.
BrownI asked for police and the ambulance.
PuseyOh police and ambulance, Ok.
BrownI started with 11444. That doesn’t work anymore.
Pusey131 444.
Brown Oh is that what it is, sorry. I’ve got to re-educate on that one, so.
PuseyYeh, not that’s fine.
BrownI, I – oh that stupid thing about it, before it’s happened, I could see she was losing it, and I was just trying to get some time, I was actually going to ring the police, because I could see she was getting worse and worse and worse. And it’s the worse I’ve seen her.
PuseyWhen, before you started having a physical altercating with her, did she have any injuries at all, that you’re aware of. That she was complaining of.
BrownNo. I, I’d know of … ? … she’s got quite a few mental conditions and stuff like that but …
PuseyYes. As in no physical injuries around the head though. No …
BrownNo, I would believe her.
PuseyBecause my colleague that I spoke to said that she’s got blood and bruising to her face. She’s got swelling under her left eye. And to the rear right side of her head as well.
BrownRear right side.
PuseyYeh, back of her heard under her hairline. That’s – maybe that’s where she hit her head on a wall or something like that, but but that’s … ? …
Brownbut that – ‘cos she was fairly close to the corner, yeh.
Pusey… yeh … but do you think that the altercation you had this evening with Natasha may have contributed or caused those injuries. Do you think that those injuries are consistent with what happened between you and Natasha this evening.
BrownI would think most probably yes.
PuseyOk. Is there anything you want to add … ? …
BrownNo I think you’ve clearly covered it mate.                  (Emphasis added)
The defence case
The appellant’s critical evidence at trial concerning the subject incident was summarised by the Magistrate thus:
[50]    On the day in question (15 November 2014), Mr Brown confirmed he was assisting a neighbour to repair a common fence. Ms Conboy had arrived at his residence late morning. From my notes Mr Brown said, “I read that she was in a bad mood, seemed depressed. She had her children Blake and Annabelle with her and mentioned that Michaela was moving in with Glen and he was returning from overseas and I suggested why not have a barbecue and she agreed”.
…
[53]    Mr Brown said that at about 7.30 they went inside after cooking the barbecue and another bottle of wine was opened and he observed that Ms Conboy was not in good frame of mind. She was sober and not her, “usual bubbly self”. He put this down to her swings of mood. He did not remember any of the conversation at the barbecue whilst outside.
[54]    The complaint by Ms Conboy to Mr Brown regarding [G] and her unsatisfactory table manners on that evening and the following conversation between the adults more likely than not led to [G] to ask to leave the table and watch television. The argument continued. Mr Brown said that Ms Conboy was becoming more agitated, slightly aggressive. He said he heard it in her speech.
…
[56]    The defendant said that Ms Conboy started hounding him then regarding the inequality of her children’s treatment by him and she was getting louder. Both Mr Brown and Ms Conboy were sitting at the table at this stage. He said he was trying to remain positive, distracting her from the argument and in his view, her obsessive continuation of it. He suggested she look outside, but in his words, Ms Conboy was “hell bent on an argument”. He said that she started shouting. She stood up, her eyes were wide open, glazed with a fiery stare. She stood behind her chair and she started clenching her fists. Mr Brown said that he felt vulnerable then so he stood up and walked across the room and shut the door into the hallway. He said he walked towards Ms Conboy and sat down again. She continued to escalate and then the topic changed and she came close behind his chair and she said, “Someone needs to tell your daughter about the separation,” and then swore, in deprecating terms, about Ms Tucun.
[57]    He had the impression that she was going to “lose it” and was becoming, if not already, out of control. Mr Brown stood up. He said Ms Conboy was pushing and screaming and trying to get past him. He then said that she got away from him and went to the door into the hallway. Mr Brown said, he had seen this happen once before. He thought “the controller” personality trait which was apparent at the time of the arson was now being rekindled, although he did say earlier he had never seen it before, but had conversations with Ms Conboy about that topic. He said he wanted to call the police for assistance as he was, “fighting another personality in the controller state. It was unpredictable and before I could do anything further, I can’t let her get near my daughter. I was in fear what Natasha could have done, what unimaginable violence if she broke into the hall”. He then said he followed Ms Conboy into the hallway, dragged her by the hair from the passage and pushed her into the area they had been in and pushed her away and slammed the door. He then said that, “Ms Conboy got up in a rage and came at me wrestling and screaming and the biggest fear that she might over power me,” because of the shoulder injury.
[58]    Mr Brown said his fear was founded as he had noticed during normal domestic activities, she was stronger than he would have expected for a female of her age and build. He said he was also concerned as there were tools in the room and that she might use as a weapon. He was concerned that she was wearing him out in the struggle and said, “In panic, I swung her into the door. I hit her three times on the right side, then the left cheek and her head came down and then I hit her in the nose and she collapsed on to the floor”. He also said he was in shock and frightened of what had happened. Ms Conboy crawled across the floor to the table and adopted a foetal position. He then called the police and requested an ambulance.
In summary, the defence case was essentially that the appellant had acted in defence of G and/or of himself in circumstances where the complainant was suffering a mental health episode; he had given a false version of the facts in his interview for the purpose of protecting the complainant; and the evidence of the complainant could not be accepted as proof beyond reasonable doubt in light of her serious mental health problems and the inconsistencies associated with her evidence. I turn to those matters as they are raised in the grounds of appeal.
Ground 4: Insufficient weight given to aspects of appellant’s interview
The Learned Trial Magistrate erred in failing to give sufficient weight and relevance to the appellant’s statement to the police that Ms Conboy was verbally aggressive and pushing just prior to the assault.
Both the drafting of ground 4 and its supporting argument are a little hard to understand. It is best if I reproduce the relevant part of the outline of argument:
1.   During the Record of Interview the accused informed the police that in the build up to the alleged offence Ms Conboy was getting “more aggressive” and was “winding up”, “just wouldn’t stop” and approached Miss Brown down the hallway “in a rage” and whilst “off her tree”. Further she was “aggressive and pushing” as she tried to get back down the hallway to Miss Brown. It was not suggested by prosecution at trial and nor was a conclusion reached by the Learned Trial Judge that the accused had been dishonest to the police during his record of interview and overall the accused came across as upfront and honest with the police during this interview, and in a number of respects what he said to the police was not the least bit self-serving.
2.   The accused’s reference in the police interview to the aggression displayed by Ms Conboy is consistent with his oral evidence at the trial, that Ms Conboy was more than simply verbally upset about the issue of how the accused treated her children vis a vis his daughter [G], and supports his assertion that Ms Conboy became physically aggressive and presented a threat of violence to his daughter.
3.   The fact he had disclosed physical aggressive behaviour on the part of Ms Conboy during the record of interview is consistent with the account he gave in his evidence at trial.
4.   The Learned Trial Magistrate has erred in failing to give these references in the record of interview the relevance and weight that they warrant.
The words of ground 4 itself appear more consistent with the situation of a defendant who has remained silent at trial and wishes to rely on his statements in a police interview tendered by the prosecution,[4] than that of the present appellant who at trial gave evidence which constituted a stark volte-face from his stance during his police interview.
[4] See for example R v Weetra (2010) 108 SASR 232.
However, in essence, ground 4 asserts that insufficient weight was given to two aspects of the appellant’s account to police. The first is that the appellant stated to the police that, just before the alleged assault, the complainant was “verbally aggressive”. As to this matter, it appears that the complainant did not dispute that she had been verbally aggressive and the Magistrate accepted that she had been.
The second aspect is that the appellant stated to the police that, just before the alleged assault, the complainant was “pushing”. When asked on the hearing of the appeal to identify the passage upon which she relied in the 19 page aide memoire transcript of the interview, Ms Matson (the solicitor for the appellant appearing at trial and on appeal) stated that she could not because she had never had a copy of that document (and nor had she taken any steps to play the passage in the CD Rom in court). When asked whether the passage at page 16 of the interview identified in the respondent’s outline of argument, or an earlier passage at page 13, was the correct passage, she indicated that she was not sure. It was the rather surprising suggestion of Ms Matson that it was up to the Court to examine closely the whole of the interview and have regard to any passages that support ground 4 of appeal (which was drafted by herself).
On close consideration of the whole of the interview, there are two, and only two, passages to which ground 4 of appeal might be referring. They are the two passages the Court drew to the attention of Ms Matson on the hearing of the appeal and are both reproduced (emboldened) in their broader context above at paragraphs [19] and [20]. The first passage is at page 13 (lines 23 to 25) of the interview thus:
… I can’t remember, just, standing up near the back door. And she just got more verbally aggressive and everything. And pushing – she went to go – and said that’s it, I’m telling, I’m going to tell [G] how big an F-ing C and everything, and what her mother is. And she went to go. … (Emphasis added)
The second passage is at page 16 (lines 36 to 38) of the interview thus:
… but she was being sufficiently aggressive verbally and, you know, she might have pushed me, I don’t, I don’t know, really don’t know. … (Emphasis added)
I have played those passages on the disc a number of times.
It should be noted that in the light of the emphasis by the appellant in the second passage on the fact that he did not know whether or not the complainant pushed him, the word “pushed” previously used by him in the first passage may very well have been a reference to the complainant pushing the rear extension door open (so that she could get though) rather than pushing the appellant himself. However, the appellant was asked no questions in evidence-in-chief about the matter (and nor in cross-examination).
Be that as it may, what is obvious is that these two passages the subject matter of ground 4 of appeal are entirely overshadowed by the surrounding admissions of conduct which could not possibly be construed as assertions of self-defence, or defence of another. The respondent correctly submits that these passages cannot be divorced from the rest of his account to police; and that such account as a whole was “devastating” to a claim of a defence under s 15 of the Act. Indeed, on its face, the interview appears to be a full confession to the charge.
The evidence of the appellant at trial that he had given a “false” account to police in order to protect the complainant should be carefully considered. The only passage in the examination of the appellant relating to that topic was as follows:
QJust in relation to that record of interview, you have said to the police that you didn’t believe that Natasha Conboy would become violent, do you recall that?
AThat’s correct, yes I do.
QWhat’s your response to that?
ABy this stage of the night, [G] was safe, Natasha was up in hospital, she was safe and Natasha’s been in trouble already, she’s been arrested and charged with arson and convicted, a gaol term but was given leniency because of her mental health and that she’s … the order will be – suspend – will be suspended. I have a love for Natasha and I took a protective role to look after her and everything was stable then and the last thing I wanted to do was to get Natasha into any form of trouble. Apart from that, in the interview I was so far out of my comfort zone, I had never been in a police place like that. I’d never been interviewed by the police. I had really no idea what was going on and I put – I didn’t want to get Natasha in trouble. She’s got a mental disorder and I took on the job to look after her, which I thought I was actually doing quite a good job and –
QAt that point did you understand the police were investigating you, possibly charging you?
AI had no idea. I thought I was there to ask me questions about what went on and if something was going to happen, like being charged, I’d come back later and ask questions to – but what else would – can you through this again, can we explain it, they can go talk to Natasha again. I just assumed wrongly that they were just – it was an initial part of an investigation.
QWhen you denied that she’d been physically threatening towards you and your daughter, you say in terms of the accuracy of that statement to the police, was it true or was it false?
AIt was me protecting Natasha, so it was false. I was – didn’t want her to get in any trouble. I just assumed we’d go and talk it over and really find out what’s going on and how we could help her not do it again.

The relevant passage in cross-examination is as follows:
QAnd you gave a version to police on that night which has been played which is the record of interview?
AThat’s correct.
QWhere, as stated, you make no mention of any struggle?
AThat’s correct.
QOr of fearing any physical contact from Natasha?
AThat’s correct.
QAnd now you’re stating that you didn’t say it on that occasion because you were trying to protect Natasha?
AThat’s correct because it’s a woman I do love, well –
QHow were you protecting her then by doing this?
AShe’d been in trouble. She had been charged, sentenced to a prison term for the arson charge. I was just worried about the record like that, what other ramifications when she’s being seen to be the physical altercations … and she had started it. At the time I couldn’t see any need to try and get her into trouble. I was just hoping after all this I would get with her and sort the problems out and continue on with life.
The purport of the evidence-in-chief appears to be as follows. First, that the complainant had in fact been physically threatening towards the appellant and G, but, secondly, the appellant had falsely denied this to the police in order to protect the complainant from ramifications that would have occurred if he had truthfully said that she had been physically threatening towards himself and G.
The appellant in effect submits that the Magistrate, when considering that stark contrast between the interview and evidence at trial, failed to place adequate weight on the fact that some surrounding details in the two versions remained the same, thus presenting evidence of “consistency” by the appellant. This rather optimistic argument falls under its own weight. While one understands that a person may lie to police in order to protect another person, it is very difficult to understand the assertions that, in such assumed circumstances, the accused had not been “dishonest” to the police and had in fact been “upfront and honest with the police”. It was suggested in argument that the appellant should be credited with being “upfront” in admitting the matters of his violent conduct towards the complainant, but this rather ignores the fact that in all of the circumstances it would have been quite apparent to him that the surrounding evidence would have made it very difficult to plausibly deny it.
The appellant’s description in the interview of his punching the complainant is redolent of a loss of control rather than defence of himself or G. While he now claims to have been acting in defence, he still gives no real detail in his evidence of any words or acts by which the complainant had been “physically threatening” towards either the appellant or G at the time that he administered the five punches, or indeed at any other stage of the evening.
I conclude that, far from paying insufficient attention to the interview, or parts of it, the Magistrate was entitled to treat the interview, when taken as a whole and in the context of the whole of the trial evidence, as very strong evidence of the guilt of the appellant. Ground 4 of appeal is rejected.
GROUNDS 3, 5 AND 6: THE COMPLAINANT'S MENTAL HEALTH
3.     The Learned Trial Magistrate erred by failing to properly assess Ms Conboy’s mental health and therefore her reliability as a witness and to in turn he failed to warn himself in accordance with the Bromley Direction.
5.     The Learned Trial Magistrate failed to give sufficient weight and relevance to the evidence that Mr Glenn Conboy had been scared of Ms Conboy and that she became volatile and irrational during their marital relationship.
6.     The Learned Trial Magistrate erred in failing to take into consideration the records of Dr Bem, Psychiatrist about matters highly relevant to the allegations.
I deal with grounds 3, 5 and 6 of appeal together. The defence case was that the complainant had severe mental health problems; that she was having some form of mental health episode during the subject incident; and that her behaviour led the appellant to believe that it was necessary to administer the punches so as to prevent the complainant from doing violence to G or himself.
While there is a significant amount of common ground concerning the fact that the complainant did have mental health problems, the appellant contends that the extent of those problems is greater than that agreed to by her in evidence.
However, that disagreement immediately brings into focus a significant feature of the case, namely that Ms Matson did not call any expert evidence on the topic. It is to be noted that Ms Matson had seen the notes of Dr Bem (the complainant's treating psychiatrist) and extensively cross-examined the complainant concerning them. Ms Matson was also aware that Dr Raeside had prepared a psychiatric report which had been previously tendered in sentencing proceedings of the complainant for the offence of arson of the former matrimonial home of herself and her ex-husband Mr Conboy (for which offence the complainant had received a suspended sentence of imprisonment not long before the subject incident). However, neither Dr Bem nor Dr Raeside were called by Ms Matson (and there is no ground of appeal concerning the absence of such evidence).
Thus the evidence of mental health problems was limited to: oral evidence of the complainant's ex-husband, Mr Conboy; oral evidence of the complainant herself (including her cross-examination concerning statements she had made to Dr Bem); oral evidence of the appellant; and the affidavit of Dr Goodyear (who examined the complainant just after the subject incident), exhibit P1.
The relevant passages in the police interview are referred to above at paragraph [18]. The Magistrate summarised the other evidence at trial as to the complainant’s mental health as follows (in the order appearing in his judgment).
The Magistrate observed as to the affidavit of Dr Goodyear:
[6] There was other evidence presented by the prosecution to establish the chain of evidence; namely the report of the medical practitioner, Dr Goodyear who examined Ms Conboy on the evening at the Wakefield Hospital. His affidavit confirms the injuries, but of interest, he notes that Ms Conboy, although she smelt of alcohol, was coherent and he made no mention from his examination that she displayed any form of psychiatric upset. That is neither consistent nor inconsistent with the evidence both of Ms Conboy or Mr Brown.
The Magistrate observed as to the evidence of Mr Conboy:
[11]    In cross-examination Mr Conboy was asked about his matrimonial relationship with Ms Conboy. He admitted it featured arguments which when started, his former wife would not “give in” and that her mental state in his view, had deteriorated near the end of their marriage. She was not in control and reacted in a serious and crisis point when the marriage ceased in 2012. Ms Conboy was charged with arson of the matrimonial home as well as throwing a brick through the window of Mr Conboy’s car when he came to collect their children.
[12]    Mr Conboy also informed that he had been told subsequently by Ms Conboy that her treating psychiatrist, Dr Bem had suggested she displayed several personalities which in times of stress or crisis, control her. He accepted Dr Bem’s views (conveyed by Ms Conboy) that she had had a disturbed and unhappy childhood of neglect and/or abuse. He was aware Ms Conboy continued to take prescribed medication and had done so since the matrimonial crisis and offences in 2012.
[13]    Mr Conboy said that his relationship with Ms Conboy, had been difficult and that the failure of the marriage was in the end, that he had become scared of her, to use his words. Although, he did say that she never physically threatened him and he remembered an allegation put to him in cross-examination that she had threatened to kill him. The context of that threat flowed to the arson charge of the former matrimonial home for which Ms Conboy was convicted.
[14]    Mr Conboy said that during their historic arguments, he never felt he was in physical danger, but he was wary of her irrational behaviour, particularly in 2012. On one occasion during this time he wanted his friend Don to accompany him for support. Ms Conboy mentioned that as well in her evidence, but said her then hostility was exasperation because she wanted to have a private discussion with Mr Conboy given the impact on their marriage. However, Mr Conboy did say he did not recall ever being threatened with a knife or being threatened during the time of their marriage as was put to him. He did say that Ms Conboy drank to excess and the arguments got out of control. Since 2012 he has a new domestic partner, Michaela who has two children of her own. They appear to be about the same age as Mr Brown and Ms Tucun’s child [G], who gave evidence.
The Magistrate observed as to the evidence of the complainant:
[28]    In cross-examination by Ms Matson, Ms Conboy said that she had had mental health problems and was still being treated. She said that she had felt insecure with Mr Conboy. They had been together for 15 years and she also admitted that she held onto issues and argued with people and was dogmatic. She admitted to having certain mental health disorders, namely PTSD with moderate severity and dissociative feature and bipolar disorder, type two and borderline personality disorders. These had been diagnosed in 2012 by Dr Bem. She said at the time her marriage ended with Mr Conboy she had felt suicidal and admitted throwing the brick at his vehicle in June 2012 and starting the matrimonial home fire and screaming in frustration that she intended to kill Mr Conboy. She says she would never had carried out that threat.
[29]    There is also a report from psychiatrist Dr Raeside, a forensic psychiatrist, in relation to Ms Conboy’s arson charge and diagnosed dissociative functions of Ms Conboy’s behaviour. Since that time Ms Conboy said that her mental health had stabilised through consultation with Dr Bem and she takes daily medication. There have been no dissociative episodes similar to those which occurred in 2012. However, Ms Conboy admitted her mental health could be fragile.
[30]    There was another issue which [G] mentioned with regards to Ms Conboy’s behaviour. This was an incident during a trip to Lake Bonnie. [G] was some years younger but recalled Ms Conboy turning up the car radio to an unbearable level and would not turn it down. [G]’s recollection was she was feeling sick and was crying and that Ms Conboy’s response to her distress was simply to turn up the radio. This appeared to be the only past issue where [G] had experienced any hostile behaviour addressed at her, except what she believed occurred on the night in question.
[31]    Mr Conboy’s new partner Michaela around the time of the incident was to move into Mr Conboy’s house at this time. Mr Brown gave evidence that in his opinion, that event may have been an underlying aggravating feature, to Ms Conboy’s behaviour during the day and evening.
…
[33]    There are clinical notes from Dr Bem, the contents some were put by Ms Matson to Ms Conboy. On 22 May 2014 Ms Conboy had told Dr Bem the relationship was deteriorating and that Mr Brown was somewhat ungrateful for what she did for him. There were a series of similar entries in the notes put to Ms Conboy and also referred to by Ms Matson in her summing up. In the scheme of things they do not show any behaviour inconsistent with Mr Brown and Ms Conboy’s interactions. They are notes by a medical specialist treating one party with admitted mental health issues. I found them to be of interest rather than being persuasive that matters were otherwise at the time. The court is examining the incident on one night. Dr Bem in his notes, also discussed the anxieties of Ms Conboy’s childhood, anger issues, and in his opinion, pain, trauma and dissociative unconsciousness. This is referenced in his notes of 19 April 2013.
…
[36]    Ms Conboy said that by November 2014, her mental health had improved significantly. She had been prescribed a DBT regime and was functioning normally as a carer and a mother. She said that she cleaned Mr Brown’s house and did other chores and had been enjoying her life, which was removed from the events of June 2012.
In the light of the above, I turn to address each of the specific grounds of appeal 3, 5 and 6.
Ground 3: The complainant's mental health and reliability and the Bromley v The Queen[5] direction
[5] (1986) 161 CLR 315.
The judgment taken as a whole, including the extracts immediately above, clearly demonstrates that the Magistrate did carefully assess the complainant’s mental health and reliability as a witness. Ms Matson largely conceded that this was so in the following passage in her address on the appeal:
I’ve said he clearly addressed the issue of her mental health and he did and he appears to have considered the Bromley direction, although he did not give himself that overt direction. I’m willing to, I believe, concede that he had that in mind and that he needed to approach her evidence with some caution. So the main issue is how he assessed her mental health and what he’s overlooked. …
This concession was correctly made. There is ample authority for the proposition that a Magistrate or Judge sitting alone does not, in many cases, need to give the specific directions that would be required in a trial by jury. This was clearly one of those cases; it is plain that the Magistrate directed himself concerning the relevant evidence and appropriately took it into account. I might also mention that the Bromley direction is addressed to the situation where the evidence of the relevant witness is uncorroborated; in the present case, the content of the police interview constitutes substantial corroboration of the complainant.
Ground 3 of appeal is rejected.
Ground 5: The evidence of Mr Conboy (the complainant’s ex-husband)
Ms Matson acknowledged in argument that Mr Conboy did not give evidence as to actual violence being observed by him. Indeed he said: ‘Yes, sometimes she would get angry during the conversations but never physically, never physically towards me.’ His evidence was confined to assertions that the complainant became very emotional; became very dogmatic; would go over the same points again; would not back down; would get to a point where she probably was not really in control of herself; would be very emotionally agitated.
There were two high points of the appellant’s submissions concerning his evidence. First, that the complainant had both broken his car window with a brick and had committed the arson offence. Although neither of these matters involved violence towards Mr Convoy or putting him in danger, they were of course serious matters evincing a high degree of loss of control. However, it is clear that the Magistrate was well aware of that and took them into account.
The second highpoint was that Ms Matson strongly relied upon the following passage in re-examination of Mr Conboy:
QWith regards to your decision to separate, around 2012, Ms Matson put to you that you wanted to have your friend Don, at least on one occasion there?
AMm-hmm.
QI want to get it quite clear, is that for the purposes of protection or is that for the purpose possibly of a witness as to what went on?
ABoth.
QWhy did you need him there as a protection if she had not threatened you or made you feel discomforted before?
AI don’t know. She, I think on that day I didn’t know what was going to happen.
No doubt Mr Conboy was wary of the complainant at the time referred to, but it is important to note that the prosecution do not dispute that the complainant lost control during the subject incident and inexcusably threatened to inform G of the infidelities of her mother. The prosecution are correct in their contention that the nature or extent of Mr Conboy’s previous apprehensions can have little, if any, bearing on the critical issue of whether the complainant may in fact during the subject incident have offered violence to G or the appellant such as to give rise to the belief that the appellant now claims that he had.
It is plain that the Magistrate directed himself concerning the relevant evidence and appropriately took it into account. Ground 5 of appeal is rejected.
Ground 6: Dr Bem’s records
As noted above, Dr Bem was not called as a witness and nor were his clinical notes tendered as evidence.
Several entries in Dr Bem’s notes were put to the complainant by counsel for the appellant during cross-examination. On some occasions, the complainant accepted that the note put to her accorded with what she had said to Dr Bem. However, on other occasions, when the complainant disputed the accuracy of the note, it was not later proved by counsel and the mere question cannot now be relied upon.
The matters in the notes that were accepted by the complainant spoke to the history and nature of the relationship between Mr Conboy and the complainant; her mental illness and personality disorder diagnoses; and aspects of the relationship between the complainant and appellant which may have been a source of conflict or tension between them. However, they provided little assistance to the appellant as to the precise events which precipitated his punching of the complainant and his state of mind at that time.
The Magistrate was correct to conclude that the notes were of limited assistance in resolving the key issue at trial. Ground 6 of appeal is rejected.
Ground 1: The Magistrate’s rejection of part of G’s evidence
The Learned Trial Magistrate erred by rejecting without basis the evidence of [G], the appellant’s daughter, especially bearing in mind that no finding was made that she was an untruthful witness.
G stated in evidence that after dinner she went into the lounge room and while there she heard the complainant and appellant arguing with raised voices. She then saw them walk into the kitchen.
It was stressed by counsel for the appellant that she then saw the complainant come to the doorway to the lounge room looking “very angry”. However, that observation is not particularly significant in that it is common ground that she and the appellant had been having a sustained heated argument and it would not be surprising that her demeanour and expression were to be perceived as “angry”.
G went on to state that she then saw the appellant pull the complainant away through the rear extension door into the extension and that she later heard repeated banging on the door to the extension. Obviously, G’s evidence that she had seen the complainant at the lounge room doorway (and therefore that the complainant had come through the rear extension door) supported the appellant’s evidence in that regard and was inconsistent with the complainant’s evidence that she had not gone into the hallway or through the rear extension door.
However, the Magistrate was alive to that conflict and rejected that aspect of G’s evidence and accepted the evidence of the complainant. This course was open to him. It is to be noted that G was nine years old at the time of the incident and was testifying at trial some years later. G’s memory of the events at the dinner table before she left to go to the lounge room was poor and she did not recall the rear extension door being closed after the argument started, (although both the appellant and complainant so testified). Further, G gave evidence that the appellant and complainant entered the kitchen after dinner, which was not consistent with their respective versions. Indeed, G was unsure whether the argument she heard, or part of it, was even on the night in question or on another night.
Given these matters, the Magistrate’s conclusion that, although “she gave evidence to the best of her ability”, one’s ability to rely upon [G]’s evidence was “limited”, was open to him. This was particularly so in light of the fact that his Honour had the advantage of seeing and hearing the witnesses. Ground 1 of appeal is rejected.
Ground 2: The complainant’s prior inconsistent statements
2. The Learned Trial Magistrate erred by disregarding the evidence of the prior inconsistent statements made by the complainant noting in particular her evidence in Court contradicted paragraph 13 of her statement dated 19 November 2014 wherein it is stated that “..Chris didn’t attack me further on the ground. He left me and got on the phone.”

The main matter relied upon was the inconsistency asserted in the ground of appeal itself. The complainant’s evidence at trial was that after she fell to the ground, she got up to get her handbag and the appellant then “threw [her] back down”. She further stated “I reckon he probably went in and checked on [G]” and that “after that” she recalls the appellant being on the phone. The appellant stresses that the complainant omitted to mention in her statement of 19 November 2014 the latter matters that she got up off the ground and the appellant threw her back down, and that he “probably” went and checked on his daughter before he made his first phone call. However, in my view, that omission is not particularly significant in the present circumstances. It certainly did not bear directly upon the primary issue, namely the precise events said by the appellant to have led to him punching the complainant in circumstances that he asserts amounted to self-defence or defence of another; the omission was of less important detail.
Ms Matson referred to several other matters that she submitted constituted inconsistences. In so far as they did constitute inconsistencies, the cumulative effect of all of them was not substantial and did little to call into question the reliability of the essential narrative by the complainant.
In any event, it is not established that the Magistrate necessarily “disregarded” these matters; his Honour did not have to address every submission made about the evidence,[6] particularly where his reasons were ex tempore.[7] Ground 2 of appeal is rejected.
[6]    Playford v Police [2017] SASC 26, [24] (Vanstone J); Soulemezis v Dudley (Holdings) P/L (1987) 10 NSWLR 247, 272-273 (Mahoney JA).
[7]    See Sandery v Kowalski [2016] SASC 175, [33] (Doyle J); Vaiusu v The Queen [2017] NSWCCA 71, [31] (Hulme J, Bathurst CJ agreeing). Vaiusu v The Queen [2017] NSWCCA 71, [31] (Hulme J, Bathurst CJ agreeing), quoting PK v The Queen [2012] NSWCCA 263, [46] (McCallum J).
Ground 7: Conviction unsafe and unsatisfactory
7.     The verdict was unsafe and unsatisfactory.
On appeal Ms Matson specifically stated that the only order sought was for a re-trial, and that the effect of the outline of argument was that ground 7 simply relies on “the cumulative weight of all the preceding grounds”. I conclude that the cumulative weight, or effect, of the matters referred to in grounds 1 to 6 of appeal, and the submissions put in support thereof, do not cause me to find that the verdict is “unsafe or unsatisfactory” in the sense apparently intended.
There is, of course, a wider way in which a Magistrates appeal of this type may be approached, and that is to engage a broader review of the whole evidence to determine whether guilt was proven beyond reasonable doubt, as adumbrated by Perry J in Taylor v Hayes.[8] While the matters in the first sentence of the preceding paragraph would indicate that that type of review was not sought here, in fairness to the appellant himself, I have read and re-read the evidence, the reasons of the Magistrate, and both the written submissions and transcript of the oral submissions of the appellant with that broader approach in mind. However, I conclude that such a ground, correctly drawn, would also not succeed. Ground 7 of appeal is rejected.
[8] (1990) 53 SASR 282, 289-292. Success on such a ground of appeal would lead to the Information being dismissed rather than to an order for a re-trial. This a broader based appeal than an appeal against a jury verdict under s 353(1) Criminal Law Consolidation Act 1935 (although success under s 353(1) also leads to a verdict of acquittal).
Conclusion
The Magistrate concluded as follows:
I find that Mr Brown was so appalled that something which he had controlled, namely the information regarding his marriage breakdown could have been told to his daughter in a blunt, uncaring or aggressive circumstance, given Ms Conboy’s emotional state at this time, her behaviour lead exactly to what he said – it pushed him too far. He lost his temper and struck her in an outrage as to what she might have said.
The Magistrate thus found that the complainant did say words that led the appellant to understand that she was about to reveal to G the matter of her mother’s infidelities in blunt, uncaring or aggressive circumstances. As the Magistrate rightly observed, its effect on the appellant was highly provocative; he lost his temper and he struck her in outrage.
In some jurisdictions, at some times, provocation has been a defence to assault charges less than murder, but that has never been the case in South Australia, and the appellant was therefore correctly found guilty of the present charge. It will be open to the Magistrate to take into account this matter of substantial provocation of a person otherwise of good character on finalisation of the present proceedings.
Disposition
No ground of appeal is made out. The appeal is dismissed.