Police v Stanford - [2013] SASC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v STANFORD
[2013] SASC 151
Judgment of The Honourable Justice Peek
11 October 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL
POLICE - OFFENCES BY POLICE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
The appellant, a police officer, was convicted of one count of assault whilst on duty. The prosecution case was as follows. The appellant and his partner, Constable Trnovsky, had responded to an incident in Hindmarsh Square involving the complainant and her then girlfriend, Ms Corban. The complainant approached the two officers and made immediate admissions. She was then arrested by the appellant and placed in a police vehicle and then dealt with by Constable Trnovsky. The appellant then proceeded to place Ms Corban under arrest. The complainant became distressed by the way Ms Corban was being handled by the appellant and complained to Constable Trnovsky about it. Constable Trnovsky left the complainant and began to approach the appellant, whereupon the complainant ran up to the appellant and head butted him. The appellant then allegedly took the complainant to the ground, straddled her, punched her to the face with his right fist, and spat in her face.
At trial, the principal issue was whether the appellant did in fact strike (count 1) or deliberately spit upon the complainant (count 2). The appellant was convicted of count 1 but acquitted of count 2. The appellant appealed on the basis that the Magistrate's reasons were inadequate, the conviction on count 1 was not proven beyond reasonable doubt having regard to the evidence, and the verdicts on counts 1 and 2 were inconsistent.
Held (Peek J dismissing the appeal):
(1) The reasons of the Magistrate were adequate. [8]-[9], [21]-[74]
(2) The verdict was safely proven beyond reasonable doubt having regard to the evidence. The Magistrate was entitled to take the view that the cumulative effect of the evidence of Ms Corban, the complainant, Constable Trnovsky and the photographs in exhibit P5 was sufficiently strong to justify a finding that the appellant had overtly used excessive force on Ms Corban, despite the appellant's sworn denial of this. The Magistrate was also entitled to consider that this finding affected the appellant's credibility. The Magistrate had adequate regard to the deficiencies in the evidence of Ms Corban, the complainant and Constable Trnovsky as to the occurrence of the subject punch. The Magistrate was entitled to accept the sworn evidence of Constable Trnovsky and reject that of the appellant. [21]-[69], [75]
(3) The verdicts on counts 1 and 2 were not inconsistent. The conviction on count 1 is founded upon an observation of a precise and distinctive physical act by the appellant, a forceful punch to the face. There could be no mistake or misapprehension of some other physical occurrence; the punch either occurred or it did not. By contrast, a conviction on count two depended on the observation of a much more equivocal act of spitting; there were difficulties associated with drawing inferences beyond reasonable doubt as to both whether any expectoration was volunary or involuntary and as to whether an impact of spittle on the complainant was intended. [76]-[81]
Fleming v The Queen (1998) 197 CLR 250; R v Mayger [2013] SASCFC 65, discussed.
R v Cotesworth (1704) 6 Mod 172; 87 ER 928; Re Cairns (1837) 1 Swin 543; Ewing v Earl of Mar (1851) 14 D 314; R v Smith (1866) 4 F&F 1066; 176 ER 910; Neal v The Queen (1982) 149 CLR 305; Doolan v Edgington (1994) 110 A Crim R 19; Burgoyne v Dixon (2004) 150 A Crim R 1; Douglass v The Queen (2012) 86 ALJR 1086; Harwood v Police (1998) 71 SASR 300; Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68; Taylor v Hayes (1990) 53 SASR 282, considered.

POLICE v STANFORD
[2013] SASC 151
Magistrates Appeal

PEEK J. Appeal against conviction of assault.
Introduction
The background and the prosecution case is sufficiently set out by the Magistrate in the introduction to his judgment thus:[1]
[1] Reasons for judgment.
[1]The defendant, Daniel Stanford, has pleaded not guilty to two charges that, on the 26^th of September 2010 at Adelaide, he assaulted Chloe Reynolds, contrary to section 20(3) of the Criminal Law Consolidation Act 1935. The offences are aggravated in that the defendant is alleged to have abused a position of authority in committing the offences, as, at the relevant time, he was a serving member of the South Australian Police Force.
[2]The prosecution case is that Ms Reynolds had been out earlier the previous evening with two friends, Alexandra Corban (her then girlfriend) and Constance Hua. They had been to ‘Shotz’ pool hall, on Pultney Street, in the city.
[3]On leaving ‘Shotz’, Ms Reynolds became involved in an incident with a group of males, who were in or near a van in Hindmarsh Square. One of these males made some disparaging remarks about Ms Reynolds and her girlfriend being lesbians or ‘dykes’. This sparked a heated verbal exchange between Ms Reynolds and one of the males in particular, which escalated to the point of her hitting him and damaging the window of his van.
[4]Ms Reynolds then left the area with her friends to buy some cigarettes, whereupon she noticed that her wallet was missing and, consequently, they walked back to the area where the original incident had occurred, which was in Hindmarsh Square. As Ms Reynolds returned, she observed police speaking to the males at the corner of Grenfell Street and Hindmarsh Square.
[5]She was then approached by two police officers, namely the defendant, Constable Stanford and his partner Constable Christianna Trnovsky, who were at that stage investigating the earlier incident.
[6]Ms Reynolds made immediate admissions and was arrested by the defendant, who hand cuffed her to the rear. She was then taken by Constable Trnovsky to a nearby police sedan and was placed in the rear passenger seat, with her legs outside of the vehicle and the door open, being further dealt with by Constable Trnovsky.
[7]The defendant then spoke to Ms Corban and, during the course of this conversation, she was asked to produce identification. The defendant arrested Ms Corban and, it is alleged, used excessive force in effecting the arrest, forcefully squeezing her upper arm, then leading her to the police vehicle, where he roughly leant her forwards over the side of the bonnet, causing pain and discomfort.
[8]This caused Ms Corban to cry out and Ms Reynolds became concerned, asking Constable Trnovsky whether the defendant was acting appropriately.
[9]Constable Trnovsky, herself concerned, then left Ms Reynolds to approach the defendant. Unknown to her, Ms Reynolds immediately followed Constable Trnovsky and, when she got to the defendant, head butted him to the area of his nose and mouth. The defendant then threw Ms Reynolds to the ground and straddled her.
[10]Constable Trnovsky’s evidence was that the defendant then struck Ms Reynolds with a closed right fist to the left side of her face (count one), calling her something like a ‘stupid fat lesbian’, and spat blood and saliva onto her head and face (count two).
[11]The defendant radioed for assistance and other police arrived at the scene. Senior Constable Stephen Harwood assisted the defendant in taking Ms Reynolds to a caged car.
[12]It is also alleged by Ms Reynolds that the defendant punched her to the head once she had been placed in the caged car, although the defendant has not been charged with such an offence.
The course of the trial
The matter was prosecuted at trial by APP Westover. Ms Fuller appeared as counsel for the appellant at trial and on the appeal.
The appellant was originally charged with one count of assault. Prior to the plea being taken at trial, counsel for the appellant objected that the charge was latently duplicitous in that the evidence sought to be led would, if believed, establish two different assaults, one a punch to the face and the other a deliberate spitting on the complainant’s face.[2] The appellant further submitted that the result was that the prosecution was required to elect as between the two possibilities. The prosecution on the other hand submitted that if the objection were to be upheld, the prosecution would seek to amend the Information by laying a new second count to separately refer to the spitting. The Magistrate allowed the objection but permitted the prosecution to lay the new count 2 referable only to the spitting.[3] Count 1 continued to refer to the alleged punch by the appellant while astride the complainant (to which I will refer as “the subject punch”). The appellant entered pleas of not guilty to each count and the trial proceeded.
[2] As a matter of interest, it is well established that spitting can amount to an assault. See for example: R v Cotesworth (1704) 6 Mod 172; 87 ER 928; Re Cairns (1837) 1 Swin 543; Ewing v Earl of Mar (1851) 14 D 314, 330; R v Smith (1866) 4 F&F 1066; 176 ER 910; Neal v The Queen (1982) 149 CLR 305; Doolan v Edgington (1994) 110 A Crim R 19; Burgoyne v Dixon (2004) 150 A Crim R 1; Blazey-Ayaib, Patricia, 'The Law Of Spitting' (1998) 22 Criminal Law Journal 151.
[3] The appellant was subsequently found not guilty on count 2. Accordingly there is no ground of appeal in relation to the above matters and I do not comment upon them.
The judgment of the Magistrate
On 27 March 2013, the Magistrate reserved judgment and on 25 June 2013 he found the defendant guilty on count 1 and not guilty on count 2.
As well as having the advantage of hearing and seeing the witnesses, the Magistrate also had particularly extensive and thorough written submissions from both sides. His Honour, after the introduction to his judgment reproduced above, and correct directions as to the onus and standard of proof and the need to consider separately the two counts, dealt, in considerable detail over the course of a further 22 closely typed pages, with the evidence, the submissions of both parties and the making of specific findings of fact.
The grounds of appeal
The grounds of appeal are as follows:
1.   The learned Magistrate’s reasons for decision were inadequate
Particulars
1.1     The learned magistrate did not deal adequately with the question of the credit of the prosecution witnesses or defence witnesses.
1.2     The learned magistrate placed undue reliance on the demeanour of the prosecution witnesses in making favourable credibility findings and undue reliance on the demeanour of the defendant in making adverse credibility findings.
2.The learned magistrate’s decision that the appellant was guilty of one count of aggravated assault contrary to section 20(3) of the Criminal Law Consolidation Act 1935 was against the weight of the evidence.
3.The learned magistrate’s decision to find the defendant not guilty on count 2 was inconsistent with his decision to find the defendant guilty on count 1.
The correct approach to a complaint of failure to give adequate reasons
A Magistrate or Judge is required to give reasons and to identify the principles of law and the main factual findings relied upon; an appellate court must be able to understand the basis upon which the judge found the case proved beyond reasonable doubt.[4] As was observed by the High Court in Fleming v The Queen,[5] the obligation to give reasons will not “be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached”.
[4] Douglass v The Queen (2012) 86 ALJR 1086, 1088-1089 [8] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
[5] (1998) 197 CLR 250, 263 (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ). The Court was there speaking in the context of s 32, Criminal Procedure Act 1986 (NSW) but it has been accepted that the same approach applies at common law.
It is necessary that the reasoning upon which the decision is based can be seen so that justice can be seen to be done.[6] However, the extent of reasons required may vary from case to case. In cases of direct evidence, a minute explanation of each step in the reasoning process and detailed findings on every issue of fact may not be required and reference to every argument of whatever cogency may not be necessary. [7]In R v Mayger, the Full Court recently summed up the matter thus:[8]
In Keyte, Doyle CJ, with whom Wicks J agreed, … dealt with a number of authorities in which the courts have concluded that a failure to give reasons was in itself an error of law. He considered the extent of reasons required. He observed that, insofar as decisions upon facts require reasons, it is not incumbent upon a judge to provide a detailed explanation for the judge’s decision to prefer the evidence of one witness to another. Nor is the judge required to give detailed explanations for his conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of a particular witness, at least when the relevant decision rests substantially upon the impression made by the witness on the judge when giving evidence.
In Sweeny, the Court of Criminal Appeal observed that there is no fixed formula when considering the adequacy of a judge’s reasons. Judges will adopt their own style and method. What is required is that the reasons explain the verdict, identify the legal principles and are sufficient to enable an appellate court to understand and review the verdict. More recently, in Douglass, the High Court confirmed that a judge is required to give reasons sufficient to enable an appellate court to understand the basis upon which the judge found the case proved beyond reasonable doubt.
The question of whether in a particular case a judge has given adequate reasons will depend upon the circumstances of that case. So long as a judge has clearly set out the basis upon which the judge’s decision rests, it is not necessary for a judge to give extensive and elaborate reasons.
…
Although the Judge did not give a detailed summary of the inconsistencies in the evidence, we are satisfied that he was aware of them and had regard to them when deciding whether he relied upon C’s evidence, and was satisfied beyond reasonable doubt of the defendant’s guilt. The reasons, although short, were adequate.
[Footnotes omitted]
[6] Harwood v Police (1998) 71 SASR 300, 305 (Duggan J); Papps v Police (2000) 77 SASR 210, 215-217 [24]-[26], 218-219 [34]-[35] (Gray J).
[7] R v Keyte (2000) 78 SASR 68, 78 [48], 79 [54] (Doyle CJ).
[8] [2013] SASCFC 65 [18]-[21], [25] (Gray, Sulan and Blue JJ).
The correct approach to a complaint that a verdict is not supported by the evidence
Although the phraseology “against the weight of the evidence” has a certain pedigree, particularly in appeals against judgments in civil cases, it is not a good choice for an appeal against a verdict in a criminal trial heard by a Magistrate.
The term “against the weight of the evidence” rather suggests that the burden on the appellant is to demonstrate that the preponderance of evidence was in favour of an acquittal and that the conviction was against the weight of that evidence. That might accurately represent the task of an appellant in civil proceedings but it disadvantageously states the position of the present appellant. The appellant at trial did not have to establish a preponderance of evidence in favour of an acquittal; he merely had to be successful in submitting that the case was not proven beyond reasonable doubt.
The appropriate ground of appeal in a case such as the present would be something like: “The evidence cannot support a finding of guilt beyond reasonable doubt” or “It was not open to find the appellant guilty beyond reasonable doubt on the evidence” or even “The charge was not proven beyond reasonable doubt”, with many permutations in between. I will proceed on the basis that it is this approach that is intended by ground of appeal 2.
The overlap between grounds of appeal 1 and 2
As counsel for the appellant observed, there is a substantial overlap between grounds of appeal 1 and 2. Most of the submissions to the effect that the judgment did not deal (or inadequately dealt) with particular matters are directed not only to ground of appeal 1 but also to be taken into account under ground of appeal 2 concerning the assessment of the strength of the prosecution evidence overall. I will first deal with those two grounds together, but always bearing in mind the appellant’s submissions from both points of view. I will then deal with ground of appeal 3.
The appellant’s case theory on appeal
The obligation of the prosecution is to prove the particular charge beyond reasonable doubt and the defendant is under no obligation to establish any particular case theory. However, where, as here, the appellant on appeal puts forward a positive case theory it is permissible to consider the arguments on appeal against that background. As I understand it, that case theory of the appellant included the following propositions.
First, that insofar as Ms Corban asserted in evidence that the appellant did use excessive force which caused a number of bruises to her (depicted in photographs in exhibit P5), such evidence should be rejected.
Second, that the complainant, who was handcuffed and being minded by Constable Trnovsky, was mistaken if she believed that the appellant was using excessive force on Ms Corban.
Third, that Constable Trnovsky did not at the time of the incident believe that excessive force was being used by the appellant and did not seek to stop him applying force; rather, Constable Trnovsky thought that it was necessary to leave the complainant alone in order to go to and assist the appellant in handling the unruly Ms Corban.
Fourth, while the complainant did deliver a powerful and painful head butt to the appellant’s face, he did not punch her at all. The evidence of the complainant as to feeling the impact of trauma (alleged by the prosecution to be associated with the impact of the appellant’s fist) was either mistake or fabrication.
Fifth, any expectoration by the appellant was accidental, occurring in the course of clearing his mouth and throat as a reaction to the unexpected head butt.
Sixth, Constable Trnovsky did not see the appellant punch the complainant because that never occurred. Rather, she fabricated the story of seeing the punch after hearing the complainant make that allegation in her police interview. Constable Trnovsky’s reason for fabricating that allegation was said to be that she was reacting to a discovery she had just made that the appellant was blaming her for the occurrence of the head butt and alleging that she had not diligently performed her duty of minding the complainant, thus endangering the appellant.
The force used by the appellant against Ms Corban
I turn first to the body of evidence concerned with the question of whether the appellant used excessive force against Ms Corban.
The evidence of Ms Corban as to the appellant’s treatment of her

The Magistrate reviewed the evidence of Ms Corban in considerable detail. He noted that she had been drinking heavily and that she delayed in providing correct details of her address upon inquiry by the appellant. He correctly summarised her evidence as to the force that was applied to her thus:[9]
[61]At this point the defendant asked for her name and address and, although she provided him with her name and told him that her address was ‘Main South Road, Myponga’, she was unable to tell him her house number, as she had only been living there for a short while.
[62]She stated that the defendant seemed annoyed with this response and then informed her that she was under arrest, leading her to the side of the front bonnet of the police car and applying handcuffs to her hands, behind her back.
[63]At this point she felt great pain to her shoulders and arms and did not understand why he was using such force in effecting her arrest.
[9] Reasons for Judgment.
The photographs of Ms Corban’s bruises
The Magistrate noted the photographs of Ms Corban which were taken about two days after the incident (exhibit P5). These certainly show very marked bruising on both arms of Ms Corban in positions consistent with her evidence concerning the actions of the appellant. While I bear in mind that propensity to bruise may vary greatly, particularly in females, and that one must be very cautious in inferring any precise degree of applied force from such photographs, there was no doubt that the Magistrate was entitled to use the bruising depicted in the photographs as evidence relevant to the issue of the circumstances under which Constable Trnovsky (and separately the complainant) approached the appellant when he was dealing with Ms Corban.
The complainant’s evidence as to the appellant’s treatment of Ms Corban
The Magistrate correctly summarised the complainant’s evidence as to the appellant’s treatment of Ms Corban and what the complainant did in response:[10]
[29]Next she heard the defendant speaking to Ms Corban and heard her becoming upset, crying and confused, saying something like ‘Why are you doing this?’ with the defendant yelling at her words like ‘stupid’ and ‘slut’.
[30]Becoming concerned, she asked Constable Trnovsky whether the defendant’s behaviour was ‘right’; in other words inquiring with her whether the defendant was acting appropriately.
[31]She then described seeing the defendant pulling at Alexandra Corban’s right shoulder, with the defendant pulling her towards the bonnet of the police vehicle.
[32]She stated that, when he got her to the vehicle, he pushed her forwards over the side of the bonnet, pulling her arms behind her back, so that her feet were not even touching the ground and she was crying out for help.
[33]She described Constable Trnovsky as leaving her to go towards the two of them, with her immediately following. Then, when she got to the defendant, she head butted him to his face.
[10] Reasons for Judgment.
The Magistrate was entitled to view this evidence, particularly when taken cumulatively with the evidence of Ms Corban, as strong evidence tending to establish that the appellant was overtly using excessive force on Ms Corban. There is no doubt that the complainant did head butt the appellant as she described and there can be no real dispute that it was her perception of what was happening to her friend that caused her to act in that way; it is no small thing to run up to a uniformed male police officer while handcuffed and head butt him in the presence of another uniformed female police officer.
Constable Trnovsky’s evidence as to the appellant’s treatment of Ms Corban
The Magistrate correctly summarised Constable Trnovsky’s evidence as to the appellant’s treatment of Ms Corban and Ms Corban’s own actions:[11]
[101]Constable Trnovsky, who was only about 1.5 metres away from the two, then heard Ms Corban tell him to ‘fuck off’ again, but by this stage she had noted a change in her demeanour, in which she was now more crying and upset than aggressive.
[102]Significantly, Constable Trnovsky was clear in her evidence that Ms Corban did not resist the defendant. Rather, the defendant pushed Ms Corban to the front of the police car, and, once at the car, pushed himself against her, over the bonnet.
[103]Ms Corban then cried out and Ms Reynolds asked Constable Trnovsky words to the effect of ‘Can you tell him to stop hurting my girlfriend?’ and ‘He’s hurting her. Please stop him’.
[104]Constable Trnovsky described the defendant’s actions as not something that she herself would do with a girl of Ms Corban’s diminutive size; that, in effect, the defendant was using too much force, particularly as he was bigger than Ms Corban and pushing her with his whole body.
[105]By this stage although Ms Corban’s voice was high pitched and she sounded upset, she remained compliant.
[106]Constable Trnovsky became so concerned that she left Ms Reynolds in the vehicle and walked over to the defendant, as she was unsure why he was doing what he was doing and she could see no reason for it.
[107]She then described Ms Reynolds as getting out of the car and running at the defendant, head butting him to his mouth.
[11] Reasons for Judgment.
Constable Trnovsky’s evidence as to the appellant’s treatment of Ms Corban thus constituted a third body of evidence concerning the question of whether the appellant overtly used excessive force on Ms Corban. Once again, the very action of Constable Trnovsky in leaving her prisoner and approaching the appellant bespeaks a compelling reason to do so. The prosecution case is that that compelling reason was Constable Trnovsky’s belief that the appellant was using too much force and that she moved toward the appellant in order to speak to him about that. The prosecution submit that that conclusion is positively required by the cumulative effect of the evidence of Ms Corban, the complainant and Constable Trnovsky (together with the photographs of the bruises to Ms Corban in exhibit P5, referred to above).
However, the appellant submits that while the reason for Constable Trnovsky leaving the complainant alone and approaching the appellant was connected to the interaction between the appellant and Ms Corban, Constable Trnovsky did so not because she perceived that excessive force was being used but rather because she thought that the appellant needed her assistance with the unruly Ms Corban.
That submission is based upon a particular passage in the original notes of Constable Trnovsky and the cross-examination in relation to it. The appellant stresses that Constable Trnovsky did not originally record in her police notebook any reference to the appellant using excessive force on Ms Corban and in fact made a note which is said to be inconsistent with her present evidence. That note was that “Reynolds became extremely distressed at this point, that [Constable Trnovsky] left the side of the car briefly in order to assist Stanford”.[12] (Emphasis added). Cross-examination about this note appears the following passage:[13]
[12] T201.
[13] T201.
QOn what you’ve described, Stanford didn’t require your assistance. The only person who did was Alex Corban?
AWell, Stanford didn’t ask for my assistance.
QYou didn’t think he needed your assistance, whether he asked for it or not did you?
ANo. He’s in a position of authority.
QDid you record in your notes, and this is immediately after recording that Reynolds became extremely distressed at this point, that you left the side of the car briefly in order to assist Stanford?
AYes.
QThat’s why you left the car – the side of the car isn’t it because Ms Corban was still making it difficult for Stanford and you went to assist him.
ANo.
QWhy did you write that in your notes if that’s not what you say happened?
AI don’t know. To assist him in making a better decision.
I accept that the notes do omit reference to the subject punch and that the original note, “in order to assist Stanford”, is inconsistent on its face with the evidence of Constable Trnovsky in Court.
I note the advantage that the Magistrate had in hearing and seeing the witnesses, most importantly Constable Trnovsky and the appellant. Provided the Magistrate had appropriate regard to proper criticism of Constable Trnovsky’s evidence (including the present matter under consideration), he was entitled to accept the evidence of Constable Trnovsky, reject the evidence of the appellant, and find the appellant guilty on count 1. His Honour chose to do so and has expressed strong views as to the way that the witnesses presented.
At the same time, acceptance of Constable Trnovsky’s evidence is essential to a conviction and if I were to consider that his Honour did not have appropriate regard to proper criticism of her evidence I would set the verdict aside. Indeed, if I considered that a consideration of the proper criticism of Constable Trnovsky’s evidence raises a doubt as to the guilt of the appellant notwithstanding the advantages that the Magistrate had, I would set aside the conviction even if the Magistrate had asserted that he had had regard to that criticism.[14]
[14] Taylor v Hayes (1990) 53 SASR 282.
On correct analysis, the matter presently under consideration is the true significance of Constable Trnovsky failing to immediately record alleged misconduct by the appellant and to initiate a formal complaint. I stress that it is not a matter of what Constable Trnovsky should have done; no doubt she should have done a number of things including taking the immediate proactive role of formally complaining about the appellant’s misconduct if it occurred. However, what is at issue here is the weight of her eventual evidence in Court and whether what she had previously done, or failed to do, impedes proof of the charge beyond reasonable doubt having regard to the contrary evidence of the appellant.
It seems to me that having regard to the normal dictates of human nature, one can understand how and why Constable Trnovsky may have actually seen the conduct she described in Court and yet initially been loath to record what she had seen and hesitant to launch proceedings against a fellow officer; this would be particularly so if it initially appeared that the complainant herself might not wish to take the matter any further. In other words, one can understand, although not condone, that a person in the position of Constable Trnovsky might succumb to the pressure to “not go against a fellow police officer” and to refrain from making accusations against the appellant in her original notes.
In my view, while the conduct of Constable Trnovsky must be closely scrutinised, the Magistrate was entitled to take the view that her evidence on oath in Court could be accepted.
Conclusion as to the appellant’s treatment of Ms Corban
I consider that the Magistrate was entitled to take the view that the cumulative effect of the evidence of Ms Corban, and of the complainant, and of the photographs in exhibit P5 and of the evidence of Constable Trnovsky in relation to the alleged misconduct towards Ms Corban was very strong and required a finding that such misconduct had occurred (and had resulted in the bruises appearing in the photographs in exhibit P5) in spite of the sworn denial by the appellant. Further, the Magistrate was correct in stating in relation to the photographs in exhibit P5 that:[15]
[239]… I am of the view that the injuries to Ms Corban in particular were not consistent with the defendant’s version and affect his credibility.
[15] Reasons for Judgment.
It is to be noted that the Magistrate did not suggest that the rejection of the appellant’s evidence in the context of the above photographs in exhibit P5 constituted “consciousness of guilt” of the offence charged in count 1. Rather, he considered that the general credibility of the appellant was adversely affected.[16]
[16] For completeness I add that the appellant also submitted (faintly, I think) that the Magistrate engaged in propensity reasoning in relation to the subject punch based upon his prior acceptance of the evidence that he had used excessive force when dealing with Ms Corban. I consider that complaint to be groundless.
I agree with the decision of the Magistrate to accept the evidence of Constable Trnovsky, and with his findings of excessive force being used on Ms Corban made on the basis of the combined effect of the evidence of Ms Corban, the complainant, Constable Trnovsky and the photographs in exhibit P5. I also agree with his Honour’s assessment of the resultant effect of this finding upon the credibility of the appellant.
The evidence concerning the subject punch
I turn to the body of evidence directly concerning the question of whether the appellant administered the subject punch while astride the complainant.
The evidence of Ms Corban concerning the subject punch
The Magistrate correctly appreciated that Ms Corban did not suggest that she had seen the appellant either punch or spit at the complainant. Further, he specifically addressed the submissions of the appellant concerning the significance of her inability to give such evidence:[17]
[90]The defence have noted that it is curious that, given her physical proximity to and involvement with the defendant, Ms Corban did not observe him to have ever struck or spat on Ms Reynolds. However, whilst this is a factor to be taken into account in considering whether either of the charges has been proven beyond reasonable doubt, when Ms Reynolds approached the defendant, Ms Corban was leaning over the bonnet of the police vehicle and, consequently, had her back to the defendant. In addition, Ms Corban was at this point injured, in a distressed state and the offences, if they occurred, happened soon after Ms Reynolds was taken to the ground, within a short space of time, whilst Constable Trnovsky was nearby and may have been blocking Ms Corban’s view.
[17] Reasons for Judgment.
Having considered all of the surrounding evidence, I agree with his Honour’s assessment here. Ms Corban was intoxicated and concerned with her own situation. The subject punch and spitting are alleged to have taken place in rapid succession and to have occupied in total a very short period of time. The fact that Ms Corban did not see these events is not inconsistent with the prosecution case and was adequately addressed by his Honour.
The evidence of the complainant concerning the subject punch
The Magistrate correctly appreciated that the complainant described a course of events which included reference to feeling the impact and effect of trauma consistent with the delivery of a punch by the appellant but she did not ever suggest that she saw such a punch being delivered. Obviously the examination and cross-examination was lengthy but for present purposes it is adequately summarised by the Magistrate thus:[18]
[33]She described Constable Trnovsky as leaving her to go towards the two of them, with her immediately following. Then, when she got to the defendant, she head butted him to his face.
[34]Ms Reynolds then described herself as being thrown to the ground by the defendant, with his lying on her, feeling very strong pressure to the left side of her face.
[35]She asserted that the defendant kept saying ‘stop resisting, stop resisting’ and that she kept replying ‘I’m not, I’m not’. She described herself as ‘half crying’ due to the pain, and asking for her ‘Mum’.
[36]She stated that the defendant spat in her face about three times, from 3 to 4 inches away, but without her hearing a ‘lewgie’ (or the drawing back of phlegm and mucous prior to the spitting), with the result that she kept on getting sprayed, by the defendant’s spittle, on her eyes and face. She stated that she felt, rather than saw, something land on her face.
[37]She also described feeling something hit her on the head, which caused some pain, after which she felt dizzy and half asleep. She then felt pressure as if someone sat on her legs after the spitting.
[18] Reasons for Judgment.
The evidence of injuries observed on the body of the complainant
Various injuries or marks observed on the body of the complainant are depicted in the photographs tendered at trial. The Magistrate stated:[19]
[236]Constable Trnovsky gave evidence that the defendant punched Ms Reynolds with a right clenched fist to the area of her left cheekbone, and photograph 3 of exhibit P 4 reveals a mark or bruise which is consistent and I find, corroborates this evidence.
[19] Reasons for Judgment.
Counsel for the appellant submits that the Magistrate made too much of this evidence. In essence, counsel submits that the photographs show various injuries and marks on the complainant and, given the unruly behaviour in which the complainant indulged on that evening, it is difficult to relate the injury referred to here by the Magistrate to the specific occasion of the alleged subject punch.
There might be something in this submission if the Magistrate had placed critical reliance on the evidence of the injuries, but he did not. It should be obvious that if the complainant was shown not to have some mark at the site of the punch as described by Constable Trnovsky, a strong submission would have been made that a punch of the force described would surely leave a mark and that the absence of any mark is positive evidence that the punch did not occur. In that context, the evidence of the mark was not unimportant. I consider that the Magistrate did not place excessive weight on this evidence. It is quite clear that his Honour would not have convicted upon the basis of the evidence of the complainant coupled with the injury evidence; he well appreciated that it was the evidence of Constable Trnovsky that was critical.
The evidence of Constable Trnovsky concerning the subject punch
The Magistrate first referred to the evidence of Constable Trnovsky concerning the preceding events as referred to above and then summarised the evidence of Constable Trnovsky in relation to the subject punch as follows:[20]
[20] Reasons for Judgment.
[106]Constable Trnovsky became so concerned that she left Ms Reynolds in the vehicle and walked over to the defendant, as she was unsure why he was doing what he was doing and she could see no reason for it.
[107]She then described Ms Reynolds as getting out of the car and running at the defendant, head butting him to his mouth.
[108]The defendant then pushed Ms Reynolds to the ground with both hands, by her shoulders.
[109]Ms Reynolds fell and Constable Trnovsky heard a loud smash which she thought was Ms Reynold’s head landing on the ground.
[110]The defendant then put his knees on Ms Reynolds’ shoulders, straddled her and punched her once in the face, with a closed right fist, to the left side of her face, connecting with her left cheek bone.
[111]She stated that upon impact, Ms Reynolds’ head moved from side to side.
[112]The defendant then ‘hawked back’ and spat his blood on her face whilst he was straddling her and she thinks that he said something to the effect of ‘you stupid fat lesbian.’
[113]At the time that the defendant spat, his head was about one foot away from Ms Reynolds’ face, and she observed something come out of his mouth and something ‘red’ cover her face.
[114]Constable Trnovsky described the defendant’s actions as seeming like a deliberate act.
[115]Ms Reynolds kicked her legs out a little bit before the punch, but did not appear to be aggressive.
[116]After the spitting, Ms Reynolds‘s (sic) behaviour was ‘compliant’.
His Honour later added:[21]
[130]She described that the defendant took Ms Reynolds to the ground in quite a fluid motion, laid with his legs on her to prevent her from kicking, then raised his knees to her shoulders and hit her.
[131]She described the punch to Ms Reynolds’s head to be of moderate force, with Ms Reynolds’ head hitting the pavement at the same time that she heard a noise of impact.
[21] Reasons for Judgment.
The attack on the credibility and reliability of Constable Trnovsky

I now turn to an examination of the appellant’s submissions concerning the credibility and reliability of Constable Trnovsky generally.
The evidence of police officers Harwood, Lloyd and Gillard
A major theme of the appellant’s submissions was that the Magistrate paid insufficient attention to inconsistencies between Constable Trnovsky (on the one hand) and Senior Constable Harwood, Constable Lloyd and Constable Gillard who arrived in response to the appellant’s radio message for assistance made just after being head butted (on the other hand).
Despite having read the appellant’s lengthy written submissions and having heard detailed oral argument, I must agree with the Magistrate that their evidence is really of very little assistance. As illustrative of why that is so, I refer to the following extract from the appellant’s summary of argument:
The Magistrate erred in dismissing as irrelevant the evidence of the witnesses Harwood, Lloyd and Gillard despite the fact that aspects of their evidence, if accepted, corroborated aspects of the evidence of the appellant. The Magistrate erred in failing to make credibility and reliability findings in respect of their evidence or findings of fact. In particular, the Magistrate erred in failing to consider adequately, or at all, the effect of Harwood’s evidence that the appellant had not struck Reynolds at or in the cage car upon the reliability and credibility of the evidence of Reynolds and the reliability and credibility of the appellant’s evidence.
Thus, it is asserted that there is an important clash between the evidence of Senior Constable Harwood and the complainant as to whether the appellant hit her while inside the cage car and that the resolution of that conflict both impinges on the complainant’s credibility and bolsters the credibility of the appellant.
However, in my view the important point is that the evidence of the complainant (and hence her credibility) was of very little importance in relation to the charged offences. Her evidence was that she did not see a punch when the appellant was astride her (although she did feel an impact at the relevant time). In fact, the prosecution case stood or fell on the evidence of Constable Trnovsky who did clearly describe the punch relied upon. To be clear, it would not have mattered if the complainant had said that she had passed out and felt and knew nothing; the appellant was still liable to be convicted on the evidence of Constable Trnovsky alone.
When that is appreciated, it matters little if the complainant is contradicted about a further allegation of a later different punch by the appellant in the cage car. In fact, the Magistrate was far from saying that he positively disbelieved her about the cage car allegation, stating:[22]
[246]I note that Ms Reynolds was the only witness, for either the prosecution or the defence, who alleged that the defendant struck her whilst she was being placed in (or had just been placed in), the caged car. On her evidence she looked at a police officer (who must have been Senior Constable Harwood) immediately after this occurred and he merely looked away. Senior Constable Harwood denied seeing the defendant striking Ms Reynolds, and, consequently, whilst I have found Ms Reynolds to be a witness of truth I am not prepared to find beyond reasonable doubt that this occurred.
[22] Reasons for Judgment.
But even if his Honour had positively found that the complainant was lying about that allegation, such a finding could not impact on the credibility or reliability of Constable Trnovsky whose evidence concerning the charge in count 1 was critical.
Similarly, it seems to be asserted that the appellant’s credibility is positively bolstered by the fact that the Magistrate was not prepared to find that the appellant punched the complainant inside the cage car. In fact, that does not logically make it the more probable that the appellant was telling the truth (or that Constable Trnovsky was lying) in relation to the quite separate allegation of assault in count 1.
As a further illustration of why the evidence of the other police officers is of very little assistance, I refer to the appellant’s further submissions concerning Senior Constable Harwood. As I followed the argument, it was that, first, the evidence of Senior Constable Harwood painted a picture of Ms Corban being much more unruly than as described by Constable Trnovsky. Second, this constituted a direct conflict between Senior Constable Harwood and Constable Trnovsky. Third, that a preference for the evidence of Senior Constable Harwood could therefore have impinged upon the credibility or reliability of Constable Trnovsky. Fourth, the Magistrate failed to make appropriate findings about all of these matters. Fifth, this failure should lead to the appeal being allowed.
When one examines this rather optimistic submission, one notices that although the evidence of Senior Constable Harwood does differ from that of Constable Trnovsky to an extent, the evidence of the other police officer, Constable Gillard, is in fact quite consistent with the evidence of Constable Trnovsky (and therefore is itself somewhat different to that of Senior Constable Harwood). The response of counsel to this complicating feature was to the effect that it was up to the Magistrate to resolve such a conflict and to make a finding as to whether the evidence of Senior Constable Harwood should have been preferred to that of both Constable Trnovsky and Constable Gillard.
I consider that such an approach is far too speculative and remote from the real issues in the case; no real reason was suggested as to why Senior Constable Harwood’s evidence should have been preferred in this way to both Constable Trnovsky and Constable Gillard (the latter officer was in fact called as a defence witness). In any event, it is very difficult to see how all this related to the credibility or reliability of Constable Trnovsky. The precise degree of perceived unruliness observed subsequent to the straddling incident would always be something of a subjective assessment and, in any event, the extent to which such unruliness existed when the other police officers were present did not logically affect the likelihood of whether the appellant had earlier punched the complainant before their arrival.
Inconsistent conduct and statements by Constable Trnovsky
Counsel for the appellant, both at trial and on appeal, made a number of submissions as to suggested inconsistencies in Constable Trnovsky’s evidence.
For example, counsel noted that Constable Trnovsky had signed the Prisoner Screening Form which did not note any observed injuries to the complainant in circumstances where visual injuries did exist. The Magistrate accepted the evidence of Constable Trnovsky that another officer had filled out the form as part of a general division of labour that was undertaken in such cases and she had not adequately checked the content of the form. Further, counsel noted a prior inconsistent statement by Constable Trnovsky that the subject punch had been to the right side of the complainant’s face whereas her evidence at trial (and the case for the prosecution) was that the punch was to the left side of the complainant’s face. Again, his Honour accepted that this was an innocent mistake. I see no reason to differ with his Honour in relation to such matters.
I also note at this point that there was a difference between the evidence of Constable Trnovsky and that of the complainant as to the order in which the punch and spitting occurred: Constable Trnovsky had the punch first and the complainant had the spitting first. The Magistrate found that Constable Trnovsky should be preferred and I consider that that finding was open to him. In my view very little turns on this difference.
Counsel for the appellant made further submissions concerning the circumstances surrounding the original making of Constable Trnovsky’s allegations against the appellant. I have referred above to the fact that Constable Trnovsky did not record in her police notebook any reference to her observations of misconduct by the appellant toward Ms Corban and nor did she initially refer to the subject punch.
The Magistrate referred to such criticisms by formulating the appellant’s case theory (and I think correctly) in the following way:[23]
[135]It was put by defence that Constable Trnovsky attempted to falsely portray the defendant as aggressive towards Ms Corban and Ms Reynolds in order to deflect criticism which could be levelled against her for, in effect, having left her post to approach the defendant, thereby failing to properly guard Ms Reynolds and allowing her to assault the defendant.
[136]That is, because she later spoke to Sergeant Eason and discovered that the defendant did not want to work with her again and blamed her for what happened to him, she decided to make up the allegation of his hitting and spitting on Ms Reynolds, or, alternatively, after hearing such allegations made by Ms Reynolds back at the City Watch House, she was somehow influenced by these allegations and now mistakenly thought that she had seen them herself. She therefore recorded the defendant’s assaults in her notebook after she had spoken to Sergeant Eason and interviewed Ms Reynolds, and these notes were coloured by what she had heard, rather than what she had actually seen.
(Emphasis in original)
[23] Reasons for Judgment.
The Magistrate rejected these theories. His Honour concluded:[24]
[24] Reasons for Judgment.
[137]Having heard and observed Constable Trnovsky during the course of lengthy cross-examination, I do not accept this contention. I note that Constable Trnovsky did not in any way shy away from the fact that by leaving Ms Reynolds unattended she failed to maintain proper control over her prisoner, which allowed her to assault the defendant.
[138]I gained the strong impression that Constable Trnovsky was cautious, thoughtful and matter of fact in her account of what she observed about the defendant’s interactions with Ms Corban and Ms Reynolds. That is, she described what she had seen in a measured and careful manner and did not make gratuitous criticisms of his behaviour.
…
[142]… I accept her evidence as given in court, as accurate, as I found Constable Trnovsky to be a most impressive witness, who gave her evidence in a straight forward and truthful manner, without displaying any tendency to embellish or exaggerate.
[143]Although cross-examined at length on numerous aspects of her evidence, her responses did nothing to alter my impression of her account as truthful, reliable, clear and compelling.
[144]In particular, I accept without hesitation Constable Trnovsky’s evidence that the defendant struck Chloe Reynolds to the head whilst he was straddling her on the ground.
…
[204]… [W]here there is conflict between the defendant’s evidence and that of Constable Trnovsky in respect to the allegation of his striking Chloe Reynolds to the head whilst straddling her (count one), I accept her evidence and reject his evidence on this point in its entirety.
The theories were rejected by the Magistrate and I too would reject them for reasons similar to those discussed above in the context of the appellant’s misconduct in relation to Ms Corban. I would simply add that the burden of proof remains upon the prosecution and there is no onus to demonstrate why a prosecution witness, here Constable Trnovsky, would lie. However, here the appellant has put forward a case theory which positively postulates that Constable Trnovsky fabricated the story of seeing the punch after hearing the complainant make that allegation in her police interview. Constable Trnovsky’s reason for fabricating that allegation was said to be that she was reacting to a discovery she had just made that the appellant was blaming her for the occurrence of the head butt and alleging that she had not diligently performed her duty of minding the complainant, thus endangering the appellant.
As noted above, one is permitted to refer to the normal dictates of human nature when considering a postulated hypothesis. I consider that the hypothesis that Constable Trnovsky would quite gratuitously, and with full knowledge of the massive consequences involved, fabricate an allegation of a punch by the appellant in order to somehow reduce criticism of herself for leaving her post has a very high degree of improbability. The Magistrate was entitled to reject this hypothesis. The Magistrate was entitled to accept the sworn direct evidence of Constable Trnovsky and reject that of the appellant, particularly in the light of the diminution of appellant’s credibility having regard to the finding that he had used excessive force on Ms Corban and which he had denied on oath before the Magistrate.
The Magistrate’s findings on count 1
The Magistrate made the following findings on count 1:[25]
[25] Reasons for Judgment.
[249]Chloe Reynolds had been out with two friends, Alexandra Corban and Constance Hua. They had been drinking, and Ms Reynolds and Ms Corban were affected to a limited extent by alcohol.
[250]Ms Reynolds became involved in an incident with a group of males, one of whom in particular had disparagingly referred to her and Ms Corban as lesbians and ‘dykes’.
[251]Ms Reynolds became embroiled in an argument with one of the males, assaulting him and damaging the window to his van.
[252]Ms Reynolds and her friends left the area but returned a short time later.
[253]Ms Reynolds was spoken to by the defendant and made immediate admissions to assault and property damage against the male.
[254]She was hand cuffed to the rear and lawfully arrested by the defendant; placed in a police sedan and guarded by Constable Trnovsky.
[255]The defendant then spoke to Ms Corban, and sought to obtain her personal details.
[256]Some confusion arose between the defendant and Alexandra Corban as to Alexandra Corban’s address, the two of them argued and the defendant placed her under lawful arrest.
[257]The defendant then used excessive force in effecting this arrest, grabbing Ms Corban very tightly on her upper arm, causing her pain and discomfort and then forcing her arm or arms behind her back.
[258]The defendant forcefully pulled Ms Corban to the police vehicle and forced her on to the bonnet, still using excessive force. This led to Ms Corban crying out in pain.
[259]Ms Reynolds expressed her concern about the defendant’s behaviour to Constable Trnovsky, who left the police vehicle to approach the defendant and Alexandra Corban.
[260]Ms Reynolds followed immediately after, without Constable Trnovsky’s knowledge.
[261]Ms Reynolds head butted the defendant to the nose and mouth area, causing bleeding and pain.
[262]The defendant forcefully and lawfully took Ms Reynolds to the ground, in order to prevent a further assault.
[263]The defendant lost control and, whilst straddling Ms Reynolds, who was on her back, struck her to the head in anger.
Although the evidence of the appellant was that no punch occurred, the Magistrate went on to address the alternative defence of self defence, correctly recognising that the burden lies on the prosecution to disprove self defence. Thus, his Honour stated:[26]
[264]Although the defendant denied striking Ms Reynolds, the defence has maintained that he was acting in self defence and that the court must consider the application of both section 15 and 15A of the Criminal Law Consolidation Act 1935. Once self-defence has been raised by the defence it is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
[265]I am satisfied beyond reasonable doubt that the defendant, in striking Ms Reynolds, did not genuinely believe his conduct to be necessary and reasonable. I am also satisfied beyond reasonable doubt that the defendant’s conduct was not reasonably proportionate to any threat constituted by Ms Reynold’s head butting the defendant. By the time that the defendant struck her, she had been restrained and subdued, and at this time he was not acting in self defence. Nor was he still carrying out his duty to restrain and re-apprehend Ms Reynolds.[27]
[26] Reasons for Judgment.
[27] The appellant cannot, and does not, take issue with the correctness of those last remarks as addressed to a situation where the appellant did in fact (contrary to his evidence) punch the complainant in the circumstances as described by Constable Trnovsky.
Having considered the whole of the evidence, I consider that the above findings were well open to his Honour. In particular, I accept that his Honour’s assessment of the witnesses was not formulaic or ritualistic but rather a well considered assessment of the persons and the specific evidence before him.
The structure of the Magistrate’s judgment
The appellant submits that the structure of the reasons demonstrate an erroneous approach in that his Honour has made findings of credibility of prosecution witnesses before addressing the evidence called by the defence which may impinge on such credibility.[28] The respondent submits that the sequence in which the Magistrate has recorded his final reasons merely follows the sequence of the evidence as it was given; thus, the fact that his Honour recorded his findings in relation to the credibility or reliability of a witness after summarising their evidence says nothing as to the way or sequence in which his Honour considered the whole of the evidence.
[28] It is debateable whether this argument is within the grounds of appeal but it is sufficiently allied to the other grounds that I was prepared to entertain it.
I think that this is an area in which Judicial Officers need to be careful of impressions that may be wrongly created. It is not fanciful to suggest that an appellant who reads a judgment where the Magistrate appears to make final determinations of credibility and accuracy of prosecution witnesses in the order in which they were called, may consider that the Magistrate may in turn approach the defence case, when he comes to it, by asking whether the defendant has displaced those findings that have already been made. Occasionally, the adoption of that style of judgment in a pronounced form may be a cumulative matter leading to a judgment being overturned on appeal.
I do not consider that the present judgment falls into that category. Although a few phrases might have been better chosen, the overall impression I have is that the Magistrate did indeed take into account the whole of the evidence when making particular findings as to credit and fact. The reasons demonstrate at various places[29] that the Magistrate did undertake a process of assessing the evidence of the witnesses against the defence and prosecution submissions, including making comparative assessment of all of the relevant witnesses’ evidence on the topic under consideration.
[29] For example, paragraphs [231]-[247].
I add that this was a case where assessment of credibility and reliability had to proceed on the basis of the consideration of a number of different but closely inter-related bodies of evidence and the various conflicts between such bodies of evidence, almost to the point of a “chicken or the egg” situation. In such circumstances, it is understandable that the Magistrate decided to group together his findings and assessments of witnesses in the way that he did.
Conclusion as to grounds 1 and 2 of appeal
As to ground 1 of appeal, I consider that his Honour gave adequate reasons for his decision.
As to ground 2 of appeal, I have conducted an independent review of the evidence and the submissions of counsel. I have by no means specifically referred to all of the matters I take into account. I find that the charge in count 1 was proven beyond reasonable doubt. I hold no doubt as to the appellant’s guilt, although I do recognise that he probably acted under the influence of significant provocation due to the head butt by the complainant.
Inconsistent verdict - ground 3 of appeal

The appellant contends that since the Magistrate was unable to rely upon the evidence of Constable Trnovsky as a basis for a verdict of guilty on count 2, it is inconsistent that a verdict of guilty be found in relation to count 1 since that count was critically dependent upon the acceptance of Constable Trnovsky’s evidence.
The argument has a superficial attraction but there are clear differences between the two charges. The conviction on count 1 is founded upon an observation of a precise and distinctive physical act by the appellant, a forceful punch to the face. The case was (rightly) conducted by the appellant on the basis that there could be no mistake or misinterpretation of some other physical occurrence; the punch either occurred or it did not, and one or other of the appellant and Constable Trnovsky were deliberately lying about that matter.
However, in relation to an act of spitting, the determination of guilt is founded on an observation of a physical act which is much more equivocal than a punch. Here there are difficulties in drawing inferences beyond reasonable doubt as to both whether any expectoration was voluntary or involuntary and as to whether an impact of spittle on another person was in fact intended.
It was well open to the Magistrate to be not satisfied that there was a deliberate spitting on to the person of the complainant in circumstances where the appellant was reacting to a forceful head butt to the mouth area (which caused significant bleeding inside the mouth). The appellant may have been expectorating in an involuntary way. Alternatively, the appellant may have been deliberately expectorating to try to clear his mouth but without any intention of spitting upon the complainant.
The Magistrate was quite right to have a doubt on count 2. At the same time, that verdict in the circumstances should not have caused the Magistrate to have a doubt about count 1, and it did not do so.
With respect, I think that the Magistrate’s verdicts on both counts were undoubtedly the correct ones.
Conclusion
None of the grounds of appeal have been made out. I dismiss the appeal.