Roginson v TRISTRAM - [2009] WASC 252

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ROGINSON -v- TRISTRAM [2009] WASC 252

CORAM: HASLUCK J

HEARD: 17 AUGUST 2009

DELIVERED : 10 SEPTEMBER 2009

FILE NO/S: SJA 1031 of 2009

BETWEEN: TROY ALLAN ROGINSON
Appellant
AND
THOMAS DAVID TRISTRAM
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R K BLACK
File No  :PE 7895 of 2008, PE 12875 of 2009

Catchwords:

Criminal law - Appeal against conviction on charges of trespass and burglary - Evidentiary matters relating to witnesses and accused persons - Whether findings of magistrate open on the evidence - Appellant not represented by legal counsel at initial trial - Appellant not prevented from properly and fairly putting his case at trial - Finding that magistrate provided adequate reasons for decision and appellant was properly convicted

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 14, s 39, s 40
Criminal Code (WA), s 70A(2), s 401(2)(b)

Result:

Leave to appeal allowed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms L J Finlay

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Brett v Rees [2009] WASCA 159
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dietrich v The Queen (1992) 177 CLR 292
Festa v The Queen (2001) 208 CLR 593
Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32
Harling v Hall (1997) 94 A Crim R 437
Liberato v The Queen (1985) 159 CLR 507
Plomp v The Queen (1963) 110 CLR 234
Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193
Shepherd v The Queen (1990) 170 CLR 573
Skerritt v O'Keefe [1999] WASCA 183

HASLUCK J:

Introduction

This is an appeal against conviction in respect of two charges that came before the Perth Magistrates Court on 19 March 2009. An order has been made for the application for leave to appeal and the appeal to be heard together.
The appellant, Troy Allan Roginson, was charged with three offences. First, he was charged that without a lawful excuse he trespassed on the property of James Robert Ingram contrary to s 70A(2) of the Criminal Code (WA). I will call this the 'Ingram trespass charge'.
Section 70A(1) provides, inter alia, that trespass on a place means to remain in the place after being requested by a person in authority to leave the place. A person in authority in relation to a place means and includes the owner, occupier or person having control or management of the place. By s 70A(2) a person who without lawful excuse trespasses on a place is guilty of an offence.
Second, the appellant was charged with burglary contrary to s 401(2)(b) of the Criminal Code in that, without consent, he was in the dwelling of William Keith Shorthill, and committed an offence therein. The effect of the provision in question is that a person who commits an offence in the place of another person, when in that place without that other person's consent, is guilty of a crime and is liable to imprisonment. I will call this the 'Shorthill burglary charge'.
Third, the appellant was charged with stealing contrary to s 378 of the Criminal Code in that he stole a car stereo to the value of $500 the property of William Keith Shorthill. I will call this the 'stealing charge'.
The appellant was convicted at the hearing of the Ingram trespass charge and the Shorthill burglary charge but acquitted of the stealing charge because, as to the latter, the prosecution could not establish that the property in question belonged to the person named in the charge. This appeal against conviction is therefore directed to the first two matters only.
It will now be useful to look at the evidence presented at the hearing as it appears in the transcript of the proceedings.

The prosecution case

The prosecution case was that on the morning of Wednesday, 7 May 2008 the appellant and another unidentified male went to 20 Riverview Street, South Perth where the appellant knocked on the front door and had a discussion with the occupier, Mr Ingram in order to create a diversion while his companion went to the rear of the house. The appellant refused to leave when asked by Mr Ingram and only left upon his friend being discovered.
It was said that a short time later the appellant entered a shed at an address in Onslow Street, South Perth and appropriated a car stereo system. In the course of doing so he left blood on the premises. On the prosecution case the DNA profile recovered from this blood matched the DNA profile of the appellant.
I note in passing that at an early stage of the hearing the appellant admitted that he was on the Onslow Street premises on the day in question and that the DNA found there was his DNA. His stance before the magistrate was that he was on the premises not to commit an offence but to seek refuge.
The appellant had previously been represented by counsel but was not represented at the hearing because he had not been able to obtain legal aid. However, at the outset, in answer to a question from the bench, he advised the magistrate that he was ready to proceed. Before the witnesses were called his Honour gave directions to the appellant concerning the manner in which the hearing would be conducted and the appellant's entitlement to cross‑examine. The appellant said that he understood the directions.
The prosecution commenced by calling a forensic scientist who gave evidence concerning DNA profiles and the testing of three swabs that gave a positive reaction for blood and the testing of sunglasses and a buccal sample listed as being from the appellant. In the course of cross‑examining this witness the appellant confirmed again that the DNA in question was his DNA.

The Ingram charge

Mr Ingram gave evidence concerning the events that occurred at his residence in Riverview Street, South Perth at about 7.00 am on the morning of 7 May 2007. He said that in response to a doorbell ring he went to the front door and spoke to a man with a knapsack on his back who said that he was 'looking for a chick who lives around here. Her dad is a vet'. After some discussion Mr Ingram told him to leave the premises. The man shuffled across the veranda towards the steps so Mr Ingram told him to get a move on. He identified the appellant as the man in question.
At that point, having been alerted by a scream from his wife at the rear of the premises that something was amiss, Mr Ingram saw another man on the premises who ran down his driveway and proceeded west down Riverview Street towards the corner of Onslow Street. Mr Ingram gave chase. The appellant was still in the vicinity so Mr Ingram finished up grabbing the appellant on the street corner. The appellant said: 'If you don't let me go I'll fucking kill you', and produced a 'sharp instrument', so Mr Ingram let him go. The appellant ran off and turned into a group of townhouses at 10 Riverview Street.
The prosecution also presented evidence through Mr Ingram and a police officer of a digiboard identification of the appellant as the man who had appeared at Mr Ingram's door.
The appellant cross‑examined. In the course of the cross‑examination Mr Ingram confirmed that while speaking to the appellant at the front door he suspected that there was 'something funny' and asked the appellant to leave the premises. He was cross‑examined also as to whether the force he later used to restrain the appellant was justifiable as defensive force. Mr Ingram denied that he had assaulted the appellant. He was intent upon restraining the person he thought was a thief. He denied saying that he intended to kill the appellant. He denied also that he brought a knife or weapon from the house which he used to cut the wrists of the appellant.

The Shorthill charge

William Keith Shorthill gave evidence for the prosecution to the effect that he lived at a certain address in Onslow Street, South Perth. At about 7.20 am on the morning of 7 May 2008, having heard a noise, he went downstairs to his garage and noticed blobs of fresh blood. Boxes containing radio equipment was strewn on the floor and were stained with blood. Someone had taken items from the boxes.
Through this witness the prosecution presented photographs of the scene. One item in particular was missing, namely, a full stereo system.
The appellant cross‑examined Mr Shorthill and established that the two cars in the garage had not been touched. The blood seen by the witness was on the steps, at the entrance and on the cardboard boxes inside the shed.

The appellant's evidence

After the prosecution case had been closed the appellant proceeded to give evidence. He said that he had gone to an address in South Perth to locate his girlfriend and had gone to a couple of houses in the street, asking where he thought she lived. At Mr Ingram's place his friend went around the back to see if he could see anyone. While that was happening the appellant knocked on the front door and spoke to Mr Ingram. He was about to walk off when his friend Ben went running past down the street. This led to Mr Ingram trying to grab the appellant and attack him.
The appellant said in evidence that there was a struggle in the course of which Mr Ingram cut him on the wrist fairly deeply with something sharp. To get away from him he ran into a block of flats in a panic with his wrist bleeding.
The appellant said further that he finished up in something like a dark shed and when he heard a noise he thought it might be Mr Ingram so he grabbed a box with which he could hit him. The appellant then went outside to confront Mr Ingram, but as he was not there he left the car stereo on the driveway.
The appellant said that in going to the place he entered he did not have any intention or motive to commit an offence or to steal. He was scared and simply went there to keep safe.
Under cross‑examination the appellant asserted that when Mr Ingram asked him to leave he did so. He was walking away when his friend ran past. He kept walking and then Mr Ingram came out and tried to have a go at him. He continued to assert that he was attacked by Mr Ingram.
As to the Onslow Street premises, the appellant said that he was only in the dark space for about a minute and just grabbed what was nearest to him which was a box.
The appellant contended in his closing submissions that a terrifying situation had been created by Mr Ingram and that he acted in response to it without any criminal intention.

Reasons for decision

The learned magistrate gave reasons for decision. These ran for two and a half pages of the transcript and dealt with the three charges before the court in turn. His Honour said at the outset that he did not believe the evidence of the appellant. He referred to the appellant's concession that he was at the Ingram premises in Riverview Street, South Perth with a friend on the morning in question. He said that he accepted the evidence of Mr Ingram as to what occurred.
Having referred in some detail to the evidence given by the various witnesses his Honour referred to the appellant's formal admission that the blood at Mr Shorthill's premises was his. He found that the appellant took the stereo system from the boxes in the shed. However, as to the stealing charge the appellant could not be convicted because the evidence given by Mr Shorthill established that the property in question belonged to his son‑in‑law. His Honour went on to find that the appellant was at the subject premises without the owner's consent.
The learned magistrate referred to s 70A of the Criminal Code and noted that the definition of trespass includes 'to remain in a place after being requested by a person in authority to leave the place'.
His Honour concluded his reasons for decision in this way:
A person in authority is defined to mean an owner, occupier or a person having control of that particular place. Mr Ingram was a person in authority in relation to the premises at Riverview Street. He told the accused to leave and the accused did not leave immediately. In relation to the charge of burglary, I have indicated that the accused was there without consent.
He did commit an offence, though not necessarily stealing the property belonging to Mr Shorthill, but committed an offence. I am satisfied, therefore, that in relation to that charge for the reasons I have already set out, the prosecution have proved that charge to the necessary degree, beyond reasonable doubt, in relation to the offence of trespass for the reasons I have set out.
It was against this background that the magistrate proceeded to convict the appellant of one count of burglary and one count of trespass. The appellant was then sentenced to a 13 month term of imprisonment in relation to the burglary and a 6 month term of imprisonment in relation to the trespass, with these terms to be served concurrently with one another and cumulatively upon a pre‑existing parole period. The appellant was not made eligible for parole.

Grounds of appeal

The grounds of appeal relied upon by the appellant are as follows:
1.Disadvantaged by having no legal representation.
2.The magistrate unfairly used my criminal record against me.
3.The magistrate failed to give reasons for his decision.
4.The magistrate failed to take into account evidence of blood which would have proven my defence.
5.The magistrate wrongly took into account evidence he should not have such as the witness word over my word.
6.The magistrate wrongly stopped evidence being given, then helped the witness avoid my questions.
I pause to note that at the hearing of the appeal the appellant withdrew the second ground of appeal. Having received the transcript he was satisfied that the magistrate only referred to his record at the end of the trial for sentencing purposes. I will say no more about this ground of appeal.
It will be useful now to look at various statutory provisions and legal principles bearing upon the matters before the court.

Statutory provisions and principles

Section 9 of the Criminal Appeals Act 2004 (WA) provides that leave of the Supreme Court is required for each ground of appeal. By s 9(2) after an appeal is commenced, the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding. It appears from Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193 that the purpose of the provisions is to weed out unmeritorious appeals. The provision must be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, in effect, that it has a real prospect of success.
By s 14 of the Act the Supreme Court may dismiss or allow an appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.
It is apparent from s 39 of the Act that an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.
A magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. These must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226; [1999] WASCA 32. However, in the case of a busy court it is not always practicable or necessary for a full or detailed statement of reasons to be given in every case. In essence, a court must find sufficient facts upon which to rationally base a decision and expose the reasoning which leads to the ultimate conclusion: Skerritt v O'Keefe [1999] WASCA 183 at 146.
Where there is a conflict in the evidence, if the tribunal of fact prefers the evidence of the prosecution, it must not convict an accused unless it is satisfied beyond reasonable doubt of the truth of that evidence: Liberato v The Queen (1985) 159 CLR 507. The court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.
Generally, an appellate court will refrain from interfering with findings of fact based upon the credibility of witnesses unless it appears that the judicial officer has failed to use or palpably misused the advantage of seeing and hearing the witnesses or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
The question on appeal will often be not whether the court would have formed a different view, but whether the magistrate's approach in view of the evidence was defensible: Chamberlain v The Queen (No 2) (1984) 153 CLR 521.
Let me now return to the various grounds of appeal and the circumstances of the present case. It will be useful to begin with some general observations.

General observations

The facts and matters underlying the three charges before the court occurred within a short period and did not give rise to complex questions of law. The appellant did not dispute that he was at the Ingram premises and then at the Shorthill premises. The factual issues to be resolved concerned the sequence of events and the intention with which certain acts were done.
The credibility of the various witnesses (including the appellant) had to be carefully considered, although it must be kept steadily in mind, having regard to the decided cases, that in the end the burden lay upon the prosecution to prove the charges beyond reasonable doubt.
In assessing the credibility of the witnesses the magistrate was entitled to bring to account not only their demeanour, and how they fared under cross‑examination, but also the degree to which their testimony conformed to what was said by other witnesses and to facts that were undisputed or established by circumstantial evidence.
Circumstantial evidence is evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred: Festa v The Queen (2001) 208 CLR 593 per Gleeson CJ at [5]. Where the prosecution relies upon circumstantial evidence, guilt should not only be a rational and reasonable inference, but should be the only reasonable and rational inference that could be drawn from the circumstances: Plomp v The Queen (1963) 110 CLR 234 at 243; Shepherd v The Queen (1990) 170 CLR 573 at 578.
In this case, findings as to credibility were bound to have an important bearing upon the outcome. As to the Ingram charge it was not disputed that the appellant came to the door of the subject premises, he was asked to leave, he was involved in a further encounter with Mr Ingram in the street. The principal differences between them relate to whether the appellant left immediately when asked to do so and as to what exactly was said and done in the street.
Mr Ingram was challenged about these matters in cross‑examination. He continued to assert that at the door he asked the appellant to leave. He firmly denied attacking the appellant in the street with a weapon, or uttering threats to kill, or cutting the appellant's wrists.
The appellant sought to convince the magistrate that Mr Ingram not only assaulted him but also produced a knife or implement and cut him. It was this, according to the appellant, which caused him to seek refuge in the Shorthill premises and arm himself with a box as a means of defence. However, it appears that the magistrate, who had the advantage of hearing and seeing the witnesses, including under cross‑examination, was not prepared to accept the appellant's evidence in that regard. Inevitably, this undermined the appellant's credibility and weakened his plea that he took possession of the box for a defensive purpose while seeking refuge. Photographs of the room in question showed that there were various tools on a bench near the box that could have been picked up and used for defensive purposes if indeed some form of defence was thought to be necessary.

Further, in assessing credibility his Honour was entitled to take account of Mr Shorthill's evidence that the stereo system removed from the Shorthill premises was never recovered. Under cross‑examination Mr Shorthill firmly denied a suggestion put to him that the stereo system was still at the Shorthill premises.
It has to be said also that apart from the evidence given by the witnesses and the DNA results the evidence before the court was scant. The appellant could not point to any independent evidence substantiating his account of what occurred. An inference could be drawn from the DNA evidence that the appellant was bleeding while on the Shorthill premises but this does not permit a further inference to be drawn as to how exactly the injury was caused. There was nothing in the evidence as a whole to suggest that after the initial encounter in the street Mr Ingram pursued the appellant. On the contrary, Mr Ingram said that when the appellant produced 'a sharp instrument about one inch long' and threatened to kill him, Mr Ingram decided to 'let him go'. Mr Ingram went back to his house.
Let me now turn to the specific grounds of appeal relied upon by the appellant.

Ground 1

The first ground of appeal was that the appellant was disadvantaged by having no legal representation.
It is apparent from the well‑known decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292 that an accused has the right to a fair trial and that lack of legal representation in certain circumstances may mean that an accused did not receive a fair trial. The crucial question is whether the absence of legal representation for an accused in the circumstances of the particular case gave rise to a miscarriage of justice.
After a lengthy consideration to the relevant authorities, the position in Australia was described in this way in Dietrich by Mason CJ and McHugh J at 311:
For the foregoing reasons, it should be accepted that Australian law does not recognise that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused.
A trial judge faced with an application for an adjournment or a stay by an unrepresented accused is therefore not bound to accede to the application in order that representation can be secured; a fortiori, the judge is not required to appoint counsel. The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented.
In my view, the absence of legal representation in the present case did not result in a miscarriage of justice. These were not serious charges being tried before a jury. The appellant did not seek an adjournment or complain about his lack of legal representation, and on earlier occasions he had pressed to have the matter brought on. He said that he was ready to proceed.
Moreover, the factual and legal issues cannot be regarded as complex or difficult to comprehend. The procedure was explained to him. The appellant's conduct of his defence showed that he was conversant with the trial process and capable of defending himself. He asserted at the conclusion of the trial that he believed he had put forward a significant body of evidence.
I am not persuaded that the appeal should succeed on this ground.

Ground 3

The third ground of appeal is that the magistrate failed to give reasons for his decision. I indicated in earlier discussion, having regard to the decided cases, that the reasons must disclose adequately the intellectual process which has resulted in a particular determination.
In the present case reasons for decision were provided and show that the magistrate recognised the importance of credibility and directed his attention to the elements of the offences before him. This is borne out by the fact that the magistrate concluded that the appellant could not be convicted of the stealing charge because the property in question was not the property of the person specified in the charge.
The appellant's main submission at the hearing of the appeal was that the magistrate failed to provide any or any adequate explanation for saying 'at the outset' of his reasons for decision 'that I do not believe the evidence of Mr Roginson'. This was followed shortly afterwards by an assertion that 'I accept the evidence of Mr Ingram'. The consequence was, the appellant contended, that the magistrate then went on to make findings that the appellant prevaricated when asked to leave the Ingram premises and that Mr Ingram did not assault the appellant so as to cause a cut on his wrist. These findings set the scene for a further and related finding that the appellant did not seek refuge in the Shorthill premises or pick up the box containing the stereo system for defensive purposes.
The appellant contended at the hearing of the appeal that the magistrate should have taken account of an important admission made by Mr Ingram which was said to corroborate the appellant's testimony that he was looking for a girlfriend and had a lawful excuse for knocking on Mr Ingram's door, namely, Mr Ingram's admission that 'this person he was looking for was the daughter of a veterinarian in actual fact lived next door but I told him I didn't know anything'.
Further, the appellant contended, the magistrate should have given weight to the notion that the appellant's supposed conduct of shuffling along the verandah was compatible with acting on the request to leave. In addition, the presence of the appellant's blood at the Shorthill premises (as verified by the DNA evidence) was consistent with the appellant's testimony. These matters not only damaged Mr Ingram's credibility but should have led to a finding that the appellant was a witness whose word could be relied upon.
To my mind, the appellant's submissions are not sufficient to show that as to this ground of appeal the magistrate erred. It emerges from my general observations that in assessing credibility the magistrate was entitled to take into account a range of matters including demeanour and how the witness fared under cross‑examination. The rule is that an appeal court will be slow to interfere with the appraisal made by a judicial officer at first instance who has had the advantage of hearing and seeing the witnesses.
It must be kept in mind also that the DNA evidence and the evidence of Mr Shorthill concerning bloodstains on his premises was equivocal. It permitted an inference to be drawn that the appellant was bleeding while on the premises but could not be used to establish how exactly the injury was caused.
When the magistrate's reasons for decision are examined closely it can be seen that his reasons for preferring the evidence of the prosecution witnesses and disbelieving the appellant are gradually unfolded. He refers to the undisputed facts that it was early in the morning, the appellant came to the Ingram premises with a friend who went round the back, there was a commotion at the back whereupon the friend left the premises in a hurry. In summarising the sequence of events at the front door and thereafter the magistrate echoes what had been said by Mr Ingram in evidence about the appellant responding to the request to leave with a shuffling motion. He went on to refer to his perception that Mr Ingram was not shaken under cross‑examination. To this point it cannot be said that in assessing credibility or making findings the magistrate had acted on evidence which was inconsistent with facts incontrovertibly established by other evidence.
It is true that the magistrate did not refer to the admission made by Mr Ingram concerning the latter's neighbour. Indeed, his Honour observed that he did not accept the appellant's evidence 'that he was looking for his girlfriend'. However, it is important to keep in mind that, even if had it been established as a fact that the neighbour had a daughter known to the appellant, this would not have been sufficient of itself to excuse the appellant from liability for trespass, being the matter before the magistrate and the context within which his observations about the appellant's purpose was made. It was a matter that may have had a bearing upon the appellant's credibility, but I am unable to conclude that the magistrate's failure to refer to the admission made by Mr Ingram concerning the neighbour, being simply one matter within a range of matters bearing upon credibility, is sufficient for an appeal court to interfere with the magistrate's assessment or that it has given rise to a miscarriage of justice.
This view is underlined by what was said recently in Brett v Rees [2009] WASCA 159 by Owen JA at [69]:
It would, in my view, be wrong to limit 'the advantages which the primary decision-maker has' to demeanour as a guide to credibility assessment and to ignore the 'feeling of a case' that usually emerges from running a trial. The primary decision-maker is able to assess testimony against the entirety of the evidence and in a situation in which she or he has an appreciation of the way the trial was run. There may, for example, be subtleties in the way questions were asked (or avoided) that are apparent in the heat of battle but which are not quite as clear in a more clinical examination of a transcript.
It follows that I am not prepared to allow the appeal on this ground.

Ground 4

The fourth ground is that the magistrate failed to take into account evidence of blood which would have proven the appellant's defence.
As to this ground, the appellant contended on the hearing of the appeal that the evidence showed he was unharmed and not bleeding when he came to Mr Ingram's door. The freshness of the bloodstains discovered by Mr Shorthill made it clear that the injury must have been caused a mere five or ten minutes prior to its discovery; that is, in the course of the struggle with Mr Ingram. This arguably reinforced the appellant's evidence that he received a cut to the wrist from Mr Ingram, that he fled to the Shorthill premises for refuge, that he then armed himself with the stereo system taken from the bloodstained box depicted in the Exhibit 3 photos, that this was done not to steal the property but in order to fend off any further attack by Mr Ingram.
The appellant's case was on the hearing of the appeal that the magistrate had failed to give proper weight to these considerations.
To my mind, the reasons for decision do not provide support for this ground. It is clear that the magistrate gave proper weight to the fact that blood was found at the Shorthill premises and that, having regard to the formal admission made by the appellant, the blood was that of the appellant and established his presence at the premises in question. I pointed out in my general observations that the evidence concerning blood was equivocal and did not permit an inference to be drawn as to how exactly the injury was caused.
It is difficult to see in what way evidence of the blood could have been used to underpin a defence being advanced by the appellant unless the magistrate was of the view that Mr Ingram had attacked the appellant as alleged and caused him to bleed. However, as to the crucial issue of whether there was any such assault, the magistrate clearly held that the evidence of Mr Ingram should be preferred. This disposes of ground 4 and a related issue raised by the appellant that he was excused from liability because he was acting under duress or out of necessity.
The finding that Mr Ingram did not attack the appellant and cut his wrist was open to the learned magistrate on the basis of the evidence presented to the court, and consistent with his view that Mr Ingram was a credible witness. Such a finding brought with it a conclusion that Mr Ingram did not arm himself as alleged, and that the only person with a weapon capable of inflicting the injury complained of was the appellant himself. In my view, no error has been established.

Ground 5

The fifth ground is that the magistrate wrongly took into account evidence he should not have such as the witness' word 'over my word'. Discussion at the hearing of the appeal concerning this ground brought under notice issues concerning credibility that I have already dealt with in my general observations and under ground 3 above.
I noted in earlier discussion, having regard to the reasoning of the High Court in Devries, that an appellate court will refrain from interfering with findings of fact unless it appears that the judicial officer has failed to use, or palpably misused, the advantage of seeing and hearing the witnesses.
In his reasons for decision the magistrate stated that he did not accept the evidence of the appellant, as I noted in earlier discussion, but rather accepted the evidence of Mr Ingram as to what occurred. He noted also that the evidence of Mr Shorthill was not challenged during the course of cross‑examination in any material way.
The learned magistrate had the advantage of assessing these witnesses in light of all the evidence before the court. It emerges from the decided cases and my general observations that his Honour was not obliged to accept the evidence of the appellant, and was entitled to come to the view of the evidence that he did. In my view, for the reasons I have given previously, it cannot be said that his Honour misused the advantage he had of seeing and hearing the witnesses or acted on evidence which was inconsistent with facts incontrovertibly established by other evidence.
For the sake of completeness, I should also deal with another matter raised at the hearing of the appeal. On the appellant's case concerning the trespass charge, the appellant contended that the magistrate erred in holding that the appellant failed to leave the Ingram premises when requested to do so. This was because Mr Ingram, in giving evidence, said only that the appellant 'shuffled at that stage, across the verandah towards the step'. This was said to be consistent with the appellant acting on the request.
However, when one turns to the magistrate's reasons for decision it is apparent that his Honour took account of related evidence to the effect that Mr Ingram said: 'You had better get a move on' with the appellant's departure then being effected essentially by the commotion that had arisen at the back of the house.
It follows that for these reasons, I am not minded to interfere with the findings of fact made by the learned magistrate.

Ground 6

The sixth ground of appeal was that the magistrate wrongly stopped evidence being given, then helped the witness to avoid the appellant's questions.
In my view, this ground has not been made out. During the trial the interventions by his Honour were entirely appropriate, being directed primarily to the relevance of matters sought to be elicited, limiting repetitive questioning or clarifying the questions being put with the witnesses. No objection was taken at the time of the trial, and the appellant was not prevented from properly and fairly putting his case.

Summary

In my view, notwithstanding the matters raised in the various grounds of appeal, the appellant was properly convicted of the burglary and trespass charges, and properly acquitted of the stealing charge (on the basis that it was incorrectly pleaded). The learned magistrate provided adequate reasons for his decision. The findings of fact he made were open on the evidence and no error has been demonstrated.
Leave to appeal will be allowed but the appeal will be dismissed.