Schoolderman v Police - [2012] SASC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCHOOLDERMAN v POLICE
[2012] SASC 57
Judgment of The Honourable Justice Blue
13 April 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
EVIDENCE - ADMISSIBILITY AND RELEVANCY - FACTS RELEVANT TO FACTS IN ISSUE - IN GENERAL
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IMPEACHMENT OF CREDIT AND ADMISSIBILITY OF EVIDENCE AS TO CREDIT - PRIOR INCONSISTENT STATEMENTS
Appeal against conviction on three counts of assault and one count of assault causing harm during a single confrontation.
Whether Magistrate erred in refusing application for summons to Commissioner of Police for production of documents – whether sufficient prospect that summons would produce relevant documents. Whether convictions unsafe and unsatisfactory – whether Magistrate erred in failing to make findings concerning other incidents as contextual and relationship evidence – whether Magistrate erred in assessing inconsistencies of the prosecution witnesses – whether Magistrate erred in assessing appellant’s credit.
Held: appeal allowed – convictions on all four counts set aside – matter remitted for retrial in the Magistrates Court – not demonstrated that, on the material before the Magistrate, there was sufficient prospect that the issue of a summons would have produced relevant documents – Magistrate did not err in assessment of the alleged inconsistencies of and between the prosecution witnesses – Magistrate did not err in assessment of appellant’s credit – Magistrate erred in failing to make findings of fact about the occurrence of other incidents treated as relevant to a fact in issue – Magistrate erred in failing to make findings as to whose evidence he accepted with respect to those incidents – in absence of findings on these matters not possible to be satisfied on appeal beyond reasonable doubt that the appellant is guilty of the four counts.
Summary Offences Act 1953 (SA) s 23; Criminal Law Consolidation Act 1935 (SA) s 20, referred to.
AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Crowther v Police [2008] SASC 302; Goldsmith v Sandilands (2002) 76 ALJR 1024; Mackenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; Police v Slater (2003) 86 SASR 189; Police v Turbitt (2005) 92 SASR 480; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; R v Nieterink (1999) 76 SASR 56, considered.

SCHOOLDERMAN v POLICE
[2012] SASC 57
Magistrates Appeal: Criminal

BLUE J: On 13 January 2010, over the course of a few minutes, a confrontation[1] occurred between the appellant/defendant Mr Schoolderman and his son on the one hand and members of two neighbouring families on the other hand.
[1] I use the term “confrontation” in a neutral sense without implying blame on the part of any participant.
Mr Schoolderman was charged with six offences allegedly committed during the confrontation:
1one count of indecent behaviour;[2]
2four counts of assault;[3] and
3one count of assault causing harm.[4]
[2]    Summary Offences Act 1953 (SA) s 23(1)(a).
[3]    Criminal Law Consolidation Act 1935 (SA) s 20(3).
[4]    Criminal Law Consolidation Act 1935 (SA) s 20(4).
Mr Schoolderman was convicted by a Magistrate on three counts of assault and one count of assault causing harm and acquitted on the indecent behaviour count and the fourth assault count.
Mr Schoolderman appeals against the convictions on two grounds:
1the Magistrate erred in refusing his application for a summons to the Commissioner of Police for the production of documents;
2the convictions are unsafe and unsatisfactory, which in turn involves three principal contentions:
(a)    the Magistrate erred in failing properly and adequately to assess inconsistencies between the evidence of each prosecution witness in court and their earlier statements prepared by the police, and as between the different prosecution witnesses;
(b)    the Magistrate erred in his assessment of the credit of Mr Schoolderman;
(c)    the Magistrate erred in failing to make findings concerning other incidents between some of the complainants and Mr Schoolderman’s family which were relevant as contextual and relationship evidence.[5]
It is convenient to address 2(a) and 2(b) first and then 1 and 2(c) in conjunction.
[5]    See R v Nieterink [1999] SASC 560; (1999) 76 SASR 56.
Background facts
Mr Schoolderman resided, together with his son (then aged 8) and his mother, at his mother’s house.
Prosecution witnesses Mrs F and her daughters LF (then aged 13) and AF (then aged 11) resided around the corner.
Next door to Mrs F’s house resided prosecution witness Mrs K (together with her husband Mr K and their son, neither of whom were present during the confrontation or were called as witnesses) and on 13 January 2010 they were being visited by a friend of their son, prosecution witness KH.
It was common ground that on 13 January 2010 at about 4.30pm Mr Schoolderman and his son were walking on the opposite side of the street adjacent to Mrs F’s house. Mrs F’s dogs began barking. Mr Schoolderman shouted at them to “shut up”. It was also common ground that, in the course of the ensuing confrontation, Mr Schoolderman made contact with Mrs K and Mrs F (causing her to fall over), but the nature of the contact and what led to it were hotly contested.
The prosecution case was that:
1Mr Schoolderman pulled down his pants and exposed himself to LF and AF (count 1);
2Mr Schoolderman spat on LF (witnessed by AF, Mrs F and Mrs K) (count 2);
3Mr Schoolderman punched Mrs K in the face (witnessed by LF, AF, Mrs F and KH) (count 3);
4Mr Schoolderman punched Mrs F several times, during the course of which she fell to the ground and suffered injury to a tooth (witnessed by LF, AF, Mrs K and KH) (count 4);
5Mr Schoolderman punched LF (witnessed by AF, Mrs F, Mrs K and KH) (count 5);
6Mr Schoolderman elbowed AF (witnessed by LF and Mrs F).
The defence case was that:
1Mr Schoolderman did not pull down his pants or expose himself;
2Mrs F grabbed Mr Schoolderman around the throat and pulled off his necklace and he pushed her in the side of the face, causing her to fall to the ground, but this was in self defence;
3Mr Schoolderman pushed Mrs K in the side of her face, which was also in self defence;
4Mr Schoolderman did not make any contact with either LF or AF.
Mr Schoolderman and his son gave evidence to this effect.
On 13 January 2010 at about 5.10pm, the police arrived and interviewed Mrs F, LF, AF and Mrs K. They wrote out handwritten witness statements in their notebooks, which each witness signed.
It was common ground at trial that Mr Schoolderman and Mr K had originally been friends. Mr Schoolderman gave evidence of incidents involving Mr K, Mrs K and/or Mrs F before and after the confrontation as follows.
1On 27 February 2008, an incident occurred in the presence of Mrs F and Mrs K in the course of which Mr Schoolderman was kicked, punched and stabbed by two men, one of whom was a friend of Mrs F, and Mrs F punched Mr Schoolderman’s mother (corroborated by Mr Schoolderman’s mother). This was denied explicitly or implicitly by Mrs F and Mrs K.
2On 29 February 2008, Mr K, who was sitting in the back seat of Mr Schoolderman’s car, threatened to stab him and to kill his son if he did not drive off after they had been pulled over by the police. The ensuing car chase led to Mr Schoolderman being arrested by the police a few days later.
3At the end of that incident, Mr Schoolderman left his car outside the house of an acquaintance of Mr K and when he returned it was missing, so he reported it to the police as stolen.
4About a year later, after Mr Schoolderman had retrieved his car from the police impound yard and fixed it up, it was rolled to the bottom of a hill and burnt, and he suspected that this was done by Mr K.
5On 22 October 2010, a group of people, including Mrs F and Mrs K, were yelling and screaming and holding sticks, threatening to bash Mr Schoolderman and his brother (corroborated by Mr Schoolderman’s brother). This was denied explicitly or implicitly by Mrs F and Mrs K.
6On 17 May 2011, a group of people, including Mrs F and Mrs K, abused and threatened Mr Schoolderman and his mother and one person in the group threatened him with a knife and a wrench (corroborated by Mr Schoolderman’s mother and brother). This was denied explicitly or implicitly by Mrs F and Mrs K.
In addition, although not the subject of any evidence at trial, evidence was adduced on appeal of the following incidents which allegedly occurred in September 2011 (a month before trial).
1On 14 September 2011 at about 8am, AF walked past Mr Schoolderman’s house and she told police later that day that Mr Schoolderman shouted at her.
2On 14 September 2011 at about 5.40pm, Mrs F and AF told police shortly thereafter that Mr Schoolderman walked past Mrs F’s house and shouted at Mrs F.
3On 21 September 2011, the police interviewed Mr Schoolderman, put to him the details of the two incidents and then arrested him for breaching his bail conditions.
The charges and the trial
On 28 September 2010, each of Mrs F, LF, AF and Mrs K signed a typewritten version of their original statements handwritten by the police on 13 January 2010.
On 22 October 2010, the police interviewed Mr Schoolderman concerning the events of 13 January 2010. The Magistrate’s characterisation of Mr Schoolderman’s responses to allegations put to him during the interview is the subject of complaint on appeal.
Mr Schoolderman was charged on information with the six counts.
On 24 February 2011, the then solicitors for Mr Schoolderman wrote to the Police, set out Mr Schoolderman’s account of what occurred on 13 January 2010 and referred to the incident on 29 February 2008 involving Mr Schoolderman and Mr K. They invited the police to withdraw the charges and alternatively sought disclosure concerning the confrontation on 13 January 2010. They did not seek disclosure or documents concerning any incidents before or after that date.
On 17 August 2011, the pre-trial conference was held and the matter was listed for a three day trial commencing on 11 October 2011.
On 22 September 2011, new solicitors for Mr Schoolderman wrote to the Police. They requested police records in relation to the 27 February and 29 February 2008 incidents as well as all call out records in respect of complaints made by the complainants against the defendant or vice versa and other documents.
On 11 October 2011, at the commencement of trial, Mr Schoolderman applied for a summons to the Commissioner of Police to produce the documents which had been sought by the letter dated 22 September 2011. The Magistrate refused the application and gave short reasons. His reasons concluded:
I decline to issue the subpoena at this stage. If in the course of the trial I take the view that there is any significant potential for an unfairness to occur, I may be prepared to re‑visit that decision at that time, so I am not prepared to issue the subpoena at this stage.
At the trial, AF, LF, Mrs F, Mrs K and KH were called as prosecution witnesses.
At the end of the first day of trial, part way through cross‑examination of Mrs F, Mr Schoolderman renewed the application for a summons, but at the commencement of the next day he withdrew the renewed application.
At the end of the prosecution case, Mr Schoolderman submitted that inconsistencies between the prosecution witnesses’ statements to the police and their evidence in court and inconsistencies between the evidence of different prosecution witnesses were such that no fact finder could find him guilty beyond reasonable doubt. The Magistrate rejected that submission.
Mr Schoolderman and his son gave evidence concerning the events of 13 January 2010. Mr Schoolderman, his mother and brother gave evidence concerning other incidents allegedly involving Mrs F and Mrs K and/or Mr K referred to at paragraph [12] above.
The reasoning of the Magistrate
The Magistrate in his reasons began by summarising the evidence of the prosecution witnesses as to the events of 13 January 2010 and the general nature of the criticisms of that evidence by Mr Schoolderman.
The Magistrate referred to the conflict in relation to the earlier and subsequent incidents between the evidence of Mr Schoolderman and his mother and brother on the one hand and of Mrs F and Mrs K on the other hand. The Magistrate made no findings in relation to those incidents or that conflict.
The Magistrate then assessed the evidence and credit of each of the five prosecution witnesses. In relation to LF, the Magistrate identified the principal inconsistencies between her evidence in court and prior statements prepared by the police, and between her evidence and that of the other prosecution witnesses. The Magistrate concluded that she was generally an honest and reliable witness, except where her evidence differed significantly from her account as recorded by the police unless it was corroborated by other prosecution witnesses whose testimony did not suffer from similar deficiencies. The Magistrate proceeded in turn to make similar assessments of credit in relation to AF, Mrs F and Mrs K. In relation to KH, the Magistrate assessed that the departures from his statement to the police were not significant, which he said was not surprising given that he had first been approached by police for a statement during the month prior to trial. The Magistrate accepted KH as an honest witness trying to give an accurate account of what happened.
The Magistrate then summarised the evidence of Mr Schoolderman and his son. The Magistrate rejected Mr Schoolderman’s evidence, in part because he denied flatly that he had discussed the incident with his son, whereas his son gave evidence that he had and that his father helped him remember the incident. The Magistrate also referred to Mr Schoolderman being interviewed by police ten months after the incident, during which he initially said he had no recollection of the incident and then answered, in effect, ‘no comment’ and did not put forward the exculpatory explanation given at trial.
The Magistrate then assessed the evidence in relation to each count sequentially. The Magistrate concluded that he was not satisfied beyond reasonable doubt in relation to counts 1 and 6, taking into account internal and external inconsistencies in the evidence of the prosecution witnesses. The Magistrate concluded that he was satisfied beyond reasonable doubt in relation to counts 2 to 5.
Inconsistencies in the evidence of prosecution witnesses
One of Mr Schoolderman’s principal contentions on appeal is that the Magistrate did not give proper and adequate consideration to the inconsistencies in reaching his conclusion that counts 2 to 5 were proved beyond reasonable doubt.
It is important to note that Mr Schoolderman does not contend that the verdicts of acquittal on counts 1 and 6 are inconsistent[6] with the verdicts of guilty on counts 2 to 5 inclusive. Nor does Mr Schoolderman contend that no reasonable trier of fact could have been satisfied of his guilt beyond reasonable doubt on counts 2 to 5 in light of the inconsistencies.[7] Rather the complaint is in respect of the adequacy of the reasons given by the Magistrate in addressing the topic of inconsistency.
[6] In the sense described by the High Court in MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 and MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606.
[7] At the hearing of the appeal, Mr Schoolderman withdrew the ground of appeal which challenged the Magistrate’s rejection of that submission at the close of the prosecution case.
In relation to count 1 (indecent behaviour), there were the following internal and external inconsistencies in the evidence of those prosecution witnesses who gave evidence concerning it.
1There was no mention of the incident in the statements taken by the police from LF which she signed.
2There was no mention of the incident in the statements taken by the police from AF which she signed.
3Mrs K gave evidence (in cross‑examination but not in‑chief) that the exposure occurred at the end of the confrontation as opposed to the beginning (for which she was not present) and there was no mention of exposure in the statements taken by the police which she signed.
4Mrs F gave evidence‑in‑chief that the exposure occurred at the end of the confrontation and not the beginning (at which she was not present), but then at the end of cross‑examination (in answer to questions from the Magistrate) said that the exposure occurred at the beginning and again at the end of the confrontation.
The Magistrate set out these matters in his reasons and concluded that he had a reasonable doubt about guilt on count 1.
In relation to count 6 (elbowing AF), there were the following internal and external inconsistencies in the evidence of those prosecution witnesses who gave evidence concerning it.
1AF said in evidence that she tried to push Mr Schoolderman away by his right arm and he then elbowed her on the side of her jaw; whereas in the statements prepared by the police and signed by her she said that he shouldered her.
2LF gave evidence that Mr Schoolderman elbowed AF; whereas it was not mentioned in the statements prepared by the police and signed by her.
3Mrs F gave evidence that Mr Schoolderman elbowed AF; whereas the prosecutor’s notes recorded her as saying during proofing that he punched AF.
The Magistrate set out these matters in his reasons and concluded that he was not satisfied beyond a reasonable doubt as to the nature and type of contact made and therefore that an assault had been proved on AF.
In relation to count 2 (spitting at LF):
1AF accepted that she had not mentioned it to the police, but said that it occurred and she had not remembered it when speaking to the police;
2Mrs F accepted that there was no mention of this incident in the statements prepared by the police and signed by her, but said that she had told the police about it and they had not included it in her statement;
3the incident was mentioned by LF and Mrs K in the statements prepared by the police and signed by them.
The Magistrate set out those matters in his reasons and essentially relied upon the evidence of LF and Mrs K in being satisfied beyond reasonable doubt that Mr Schoolderman spat at LF.
In relation to count 3 (punching Mrs K), the incident was mentioned in the statements prepared by the police in respect of all five prosecution witnesses. The Magistrate relied on the evidence of all five prosecution witnesses. The Magistrate rejected the evidence of Mr Schoolderman and his son that Mr Schoolderman had only pushed Mrs K (as opposed to punching her) and had done so in self defence.
In relation to count 4 (punching Mrs F):
(a)Mrs K said in evidence that Mr Schoolderman punched (king-hit) Mrs F and did not kick her; whereas the statements prepared by the police signed by her recorded her saying that he both punched and kicked Mrs F;
(b)the four other prosecution witnesses gave evidence that Mr Schoolderman punched Mrs F at least twice, and this was also recorded in the statements prepared by the police and signed by them.

The Magistrate relied upon the evidence of all five prosecution witnesses in finding that Mr Schoolderman punched Mrs F and rejected the evidence of Mr Schoolderman and his son that Mr Schoolderman only pushed Mrs F on the side of her face and had done so in self‑defence.
In relation to count 5 (punching LF):
1AF gave evidence that Mr Schoolderman punched LF in the face, knocking her to the ground but did not kick her; whereas the statements prepared by the police and signed by her recorded that Mr Schoolderman kicked LF in the leg after she was knocked to the ground (which AF explained in evidence as being due to the fact that she did not remember everything);
2Mrs K gave evidence that Mr Schoolderman twice punched LF in the face knocking her to the ground; whereas the statements prepared by the police which she signed recorded that Mr Schoolderman kicked LF in the leg causing her to fall to the ground before punching her while she was on the ground.
3Mrs F gave evidence that Mr Schoolderman hit LF, whereas the statements prepared by the police and signed by her did not mention Mr Schoolderman hitting LF (although she gave evidence that she had in fact told the police of that);
4LF and KH gave evidence that Mr Schoolderman punched LF and it was also recorded by the police in the statements which they prepared.
The Magistrate relied upon the evidence of all five prosecution witnesses except perhaps Mrs F (saying that the injuries which she had received by that stage potentially explained why she had not included this incident in her statement prepared by the police) in finding that Mr Schoolderman punched LF.
On appeal, Mr Schoolderman contends that the Magistrate was required to take the following steps in assessing the evidence of each prosecution witness in respect of potential inconsistencies with prior statements:
1identify the relevant story told in evidence and the equivalent story told earlier to the police;
2assess whether the two stories were relevantly inconsistent;
3assess whether any such inconsistency went to a central aspect of the case;
4assess whether any such inconsistency was such that the story told in court was more damaging than the earlier story told to the police;
5assess what impact any such inconsistency had on the assessment of the witness’s credit and acceptance of the witness’s story told in court;
6assess whether the Magistrate was satisfied beyond reasonable doubt that the defendant was guilty and specifically that the story told in court was relevantly true.
Mr Schoolderman contended that the Magistrate erred in relation to each step.
In relation to the first and second steps, the Magistrate identified the stories and inconsistencies in relation to each prosecution witness and in relation to each count as summarised above. Mr Schoolderman contends that the Magistrate did not specifically mention in his reasons every inconsistency.
The Magistrate did not refer in his reasons to the fact that, generally speaking, the statements taken by the police did not refer to Mr Schoolderman being perceived to be drunk and angry or to the words spoken by Mr Schoolderman or his son. However, the Magistrate did deal generically with this category of alleged inconsistencies in the following passages:
In matters of detail I have little difficulty that police who have the responsibility of taking a statement may not note all things said by a witness but where the gap in a statement is of an aspect of the incident central to the allegation or allegations it is much harder to regard omission as merely an oversight by police. However, I remind myself that in this case a number of things occurred in a very short space of time and recounting all in the correct sequence immediately after a traumatic instance may be difficult …
In assessing the evidence of each of the civilian witnesses I have had careful regard to Mr. Mancini’s submissions … I also have regard to the passage of time since the incident occurred which was referred to by a number of witnesses as making detail harder to remember and giving rise to some expected inconsistencies in detail both as between the witnesses and between their statement made shortly after the incident and their evidence.
The charges involved conduct (assault and indecent behaviour) as opposed to words. In the circumstances, the alleged inconsistencies as to what was said and as to the witnesses’ perception of Mr Schoolderman’s inebriation or emotional state were not central and it was sufficient for the Magistrate to deal with those matters in generic terms.
In relation to inconsistencies concerning the conduct the subject of the charges, the Magistrate identified the great majority of those inconsistencies. The Magistrate did not refer to AF’s witness statement saying that Mr Schoolderman kicked LF (which he did not recall in the witness box) or to Mrs K’s witness statement that Mr Schoolderman kicked Mrs F (which she did not recall in the witness box) or to discrepancies as to the number of punches delivered by Mr Schoolderman, but did list all of the other inconsistencies summarised at paragraphs [32]-[41] above. In the circumstances, I do not consider that the failure of the Magistrate to explicitly mention those matters vitiates his reasoning on the topic of inconsistency.
In relation to the third and fourth steps, the Magistrate did identify those inconsistencies which he regarded as going to a central aspect of the case, namely the conduct of Mr Schoolderman the subject of the six charges. The Magistrate also identified instances of inconsistency in a central aspect of the case in which the story told in court was more damaging than the earlier story told to the police. In particular, the statements by AF and LF to the police concerning Mr Schoolderman kicking LF and Mrs F respectively were more damaging than the story told in court.
In relation to the fifth and sixth steps, the Magistrate separately assessed the credit of each witness by reference to the inconsistencies which the Magistrate identified between their story told in evidence and told earlier to the police. He also assessed inconsistencies between witnesses. The Magistrate then considered whether he was satisfied beyond reasonable doubt in relation to each count separately.
Mr Schoolderman contends that the Magistrate did not adequately direct himself about the use to be made of the prior inconsistent statements for the purpose of assessing credibility and reliability of the witnesses. I consider that the Magistrate did proceed to assess the prior inconsistent statements appropriately. It was not necessary for the Magistrate to set out those directions to himself in his reasons for judgment if, as I have concluded, he in fact applied the appropriate directions. Mr Schoolderman made a number of other criticisms of the reasoning of the Magistrate in relation to the inconsistencies. I do not set them all out, but consider that there is no weight in those criticisms.
I do observe that it would have been preferable for the Magistrate to have analysed count 6 (as well as count 1), in respect of which he was not satisfied of Mr Schoolderman’s guilt beyond reasonable doubt, prior to his analysis of counts 2 to 5. However, before analysing counts 2 to 5, the Magistrate had already made credit findings in relation to each of the witnesses and, by the time he wrote his reasons for judgment addressing counts 2 to 5, it is apparent that he knew in his own mind that he was not satisfied beyond reasonable doubt in relation to count 6. Accordingly, no error vitiating his ultimate conclusion is demonstrated in this respect.
I also observe that the Magistrate used expressions in his judgment which might, at first glance, be thought to indicate that he applied a mechanical process of accepting the evidence of a prosecution witness in respect of a count (regardless of inconsistencies) unless it was not corroborated by another prosecution witness whose evidence in respect of that count was not affected by any such inconsistency. If the Magistrate had proceeded in such a mechanical manner, he would have erred in a manner which would have vitiated his ultimate conclusions. However, reading his reasons as a whole, I am satisfied that the Magistrate did not apply that mechanical process and gave separate and appropriate consideration to each prosecution witness’s evidence and the credibility of that witness.
Accordingly, Mr Schoolderman has not demonstrated error in the Magistrate’s reasoning on the topic of inconsistency which vitiates his ultimate conclusions.
Assessment of defendant’s evidence
The Magistrate made an adverse finding as to Mr Schoolderman’s credit. In so doing, the Magistrate referred to a number of factors. Mr Schoolderman complains on appeal of the Magistrate’s analysis in respect of three (but not all) of those factors.
Account at interview
The first factor challenged is the Magistrate’s reasoning in relation to the police interview of Mr Schoolderman. The Magistrate said:
When interviewed by police some 10 months after the incident the defendant initially denied having any recollection of the incident progressively described by the interviewing police. His answers changed after answering a number of questions to, in effect, no comment. If I understood his evidence correctly he said that he was nervous and concerned about his son’s welfare when interviewed and that is why initially he said he had no recollection of the incident. I did not find this explanation convincing. Clearly there was no obligation on the defendant to answer questions but having initially chosen to do so it is surprising he did not give the exculpatory account he gave in evidence.
On appeal, Mr Schoolderman contends that the Magistrate’s characterisation of Mr Schoolderman’s claim that he had no recollection of the confrontation is not a fair characterisation because Mr Schoolderman’s answers were equivocal or alternatively because he might reasonably have been expected to have no recollection of the events of 13 January at that point. I have read the entirety of the interview and it is quite clear that Mr Schoolderman initially said he had no recollection of events which occurred on 13 January 2010 which in fact were common ground at trial. I consider also that, on his own version of the confrontation, Mr Schoolderman could reasonably have been expected to have a recollection of it when details of the complainant’s allegations were put to him by police.
Mr Schoolderman also criticises the Magistrate’s characterisation of Mr Schoolderman’s later answers as “no comment”. He contends that they should be characterised as denials. It is clear from the interview that Mr Schoolderman responded “no comment” to each of the specific allegations put to him that he assaulted each of the complainants. Mr Schoolderman also gave a number of denials to other questions, but that is not inconsistent with the Magistrate’s reasoning.
Mr Schoolderman contends that the Magistrate erred in finding unconvincing Mr Schoolderman’s explanation at trial for initially telling the police that he had no recollection of the confrontation. That is, he was nervous and concerned about his son’s welfare. The interview took place after Mr Schoolderman had already been arrested and he chose voluntarily to participate in the interview notwithstanding that he had been warned that he had no obligation to do so. Given this factor and the content of the interview itself, there was no error in the Magistrate finding the explanation given in court unconvincing.
Mr Schoolderman contends that the Magistrate was not entitled to use Mr Schoolderman’s failure to give an exculpatory account against him on an assessment of credit. Further, Mr Schoolderman contends that in any event the Magistrate erred in determining that he was surprised that Mr Schoolderman did not give an exculpatory account during the interview. In his reasons, the Magistrate expressly observed that Mr Schoolderman was not obliged to answer questions and his failure or refusal to have done so would not have told against him. The Magistrate did not use a failure or refusal to answer questions against Mr Schoolderman in this sense. The Magistrate was merely observing that, given that Mr Schoolderman expressly chose not to exercise his right to silence, there was no convincing reason advanced why he did not give his own account of the confrontation as he later did in court. I have reviewed the entirety of the interview and, in all the circumstances, there is no error demonstrated in the Magistrate’s approach to the interview.
Inherent likelihood of attack
The Magistrate said:
… [It] is unlikely two women would attack a male of the defendant’s stature. I observed that he was considerably bigger in both height and weight than either woman.
Mr Schoolderman contends that it is unclear how the Magistrate arrived at this determination. The police incident reports tendered on appeal record Mr Schoolderman as being 175cm tall and weighing 75kg as at September 2011. This evidence was not before the Magistrate; however, the Magistrate saw Mr Schoolderman in the witness box. Accepting that Mr Schoolderman is not a large man, there is no evidence on appeal as to the size of Mrs F and Mrs K and accordingly I have no basis to interfere with the Magistrate’s assessment of their size relative to Mr Schoolderman.
Mr Schoolderman also contends that the Magistrate should not have made an assessment of inherent likelihood of attack without making findings about the prior incident which allegedly occurred on 27 February 2008. This contention depends upon the independent contention advanced by Mr Schoolderman on appeal that the Magistrate erred in failing to make a finding concerning that incident. For reasons which appear below, I accept that submission by Mr Schoolderman. It follows that, if the Magistrate had made a finding and had found that the incident occurred as described by Mr Schoolderman and his mother, he would have needed to factor that into his assessment of inherent likelihood.
Injury to Mrs F’s tooth
The Magistrate made the following reference to injury to Mrs F’s tooth:
In the incident she suffered a broken tooth. Mr. Mancini suggested pre-existing decay may have accounted for the tooth breaking even with the type of contact described by his client. However his client’s description is not consistent with the haematoma described by her doctor and clearly visible in photo 7. It is however entirely consistent with [Mrs F’s] description of the defendant continuing to punch her once she landed on her bum.
It can be seen that the Magistrate did not reject the submission made by Mr Mancini, but referred instead to a haematoma in respect of which no complaint was made on appeal. Accordingly, no error has been demonstrated in the Magistrate’s assessment of this factor in his overall assessment of Mr Schoolderman’s evidence.
Mr Schoolderman contends independently that the Magistrate’s finding that Mrs F suffered injury to her tooth (which was the actual harm alleged in relation to count 4) was contrary to the evidence. Mr Schoolderman refers to exhibit D1 being clinical notes of the dentist who treated Mrs F on 14 January 2010.
Those dental notes record:
Tooth 22 with a history of filling and having cavity as well which made it more susceptible to fractures had lost a large part of the crown and the filling.
The dentist’s notes do evidence that the tooth was damaged during the confrontation, albeit a tooth that was susceptible to damage due to its pre-existing condition. I therefore reject this contention by Mr Schoolderman.
Contextual relationship evidence
Mr Schoolderman makes two separate, but related, contentions concerning the evidence of other incidents between Mr Schoolderman and the F and K families.
1Mr Schoolderman contends that the Magistrate erred in declining to issue a summons to the Commissioner of Police to produce material relating to such incidents and that the material which would have been produced if such a summons had been issued would potentially have had a significant impact upon the trial and result.
2Mr Schoolderman contends that the Magistrate erred in making no findings concerning the evidence given at trial of such incidents. Furthermore, the Magistrate erred by not taking this evidence into account in either his assessment of what actually occurred on 13 January 2010 or his assessment of the credit of the prosecution witnesses.
Summons to Commissioner of Police
A transcript was not taken of the argument on the application by Mr Schoolderman for a summons. No affidavit evidence was adduced on appeal as to what was said during that argument.
There is a transcript of the last part of the dialogue between Mr Schoolderman’s counsel and the Magistrate. Mr Schoolderman’s counsel said that the material sought on the summons was potentially relevant as background, contextual and relationship evidence to show a bad relationship between the F and K families on the one hand and the Schoolderman family on the other. The Magistrate put to counsel that he could cross‑examine the witnesses based on instructions from the Schoolderman family. This was accepted by counsel, who argued that he should be able to deploy every piece of material both to provide objective evidence as to the relationship and to enhance Mr Schoolderman’s credibility or destroy the credibility of the prosecution witnesses.
The Magistrate gave short reasons for declining the application. He concluded that the material would not be directly relevant to a fact in issue but at best would be relevant to issues of credit. The Magistrate referred to the fact that grant of the summons would necessitate an adjournment of the trial (which had been listed for three days) and that he needed to balance the interests of the prosecution and the community in dealing with the matter in a timely way against the interest of the defendant in having a fair trial. He concluded that the defendant should be able to provide instructions on the matters to which the summons related and that he was not prepared to grant an adjournment of the trial for the obtaining of the material. He said that he might be prepared to revisit that decision if, in the course of the trial, it emerged that there was any significant potential for an unfairness to occur.
In considering this ground of appeal, it is important to bear in mind that the only specific incidents which had been identified in the letter dated 22 September 2011 (which was tendered on the application) were the incidents of 27 and 29 February 2008 and that the letter did not assert that any of the five prosecution witnesses were involved in either incident. I note that the application was not renewed after Mrs F was cross-examined concerning the incident on 27 February 2008 or at any other point.
In those circumstances, it has not been demonstrated that, on the material before the Magistrate, there was a sufficient prospect that issue of a summons would result in the production of documents relevant to the relationship between the prosecution witnesses and Mr Schoolderman (or even relevant to the credit of those witnesses). It follows that it has not been demonstrated that the Magistrate erred in refusing to issue the summons.
If material had been placed before the Magistrate demonstrating the existence (at least on the evidence of the defence witnesses) of incidents between the prosecution witnesses and Mr Schoolderman, the issue would then have arisen as to the weight (if any) which the Magistrate ought to have given to case flow management principles in determining whether or not to grant the application for the issue of summons. On appeal, both parties submitted that, notwithstanding the decision of the High Court in AON Risk Services Australia Ltd v Australian National University[8] in relation to civil proceedings, the established approach to criminal proceedings in South Australia[9] based on the earlier decision of the High Court in Queensland v JL Holdings Pty Ltd[10] still prevails. It is unnecessary to consider that question in light of the conclusion which I have already reached independently of case flow management principles.
[8] [2009] HCA 27; (2009) 239 CLR 175; see also Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59.
[9] See, for example, Police v Slater [2003] SASC 284 at [31]; (2003) 86 SASR 189 at 194 per Perry J; Police v Turbitt [2005] SASC 303 at [51] – [52]; (2005) 92 SASR 480 at 494 per Gray J; Crowther v Police [2008] SASC 302 at [31] – [34] per David J.
[10] [1997] HCA 1; (1997) 189 CLR 146.

In any event, the materials which would have been produced in response to such a summons have now been tendered on the hearing of the appeal. If those materials had been available at the trial, they would not have made a material difference to the course or result of the trial.
1 In relation to the incident on 27 February 2008, the Police Incident Report makes no reference whatsoever to Mrs F, Mrs K or Mrs Schoolderman and is confined to Mr Schoolderman being stabbed by an unknown assailant.
2The Police Incident, Apprehension and Ancillary Reports in relation to the incident on 29 February 2008 make no reference to threats by Mr K to Mr Schoolderman, and in any event make no reference to any of the prosecution witnesses, nor is it suggested by Mr Schoolderman that the prosecution witnesses were in fact involved in that incident.
3The Police Incident, Apprehension and Ancillary Reports in relation to the incidents on 14 September 2011 do not disclose any material information beyond that disclosed by the police to Mr Schoolderman himself during his record of interview on 22 September 2011. In addition, neither AF nor Mrs F was cross‑examined at the trial concerning these incidents.
4The incidents of October 2010 and May 2011 are not the subject of any Police Incident Reports or other records maintained by SA Police.
Accordingly, this ground of appeal is not made out.
Evidence at trial of incidents
In his reasons for judgment, the Magistrate addressed this evidence in the following passages:
[5] In relation to each of the civilian prosecution witnesses Mr. Mancini urged me to scrutinise their evidence carefully before accepting it. He referred to the evidence of his client, his mother and brother of earlier incidents of animosity directed by [Mrs F] and her friend [Mrs K] and others towards the defendant and his family as providing motive for them to lie about what had happened. It was clear to me that by the time both gave evidence in this case they did not like the defendant …
[11] While the defendant has to prove nothing he elected to give evidence and called his son to give evidence about the incident. He also called his mother and brother. Neither claimed to be present at the incident but gave evidence of earlier and subsequent incidents of antagonism directed by [Mrs F] and [Mrs K] and others at the defendant. In relation to the latter two I do not propose saying further than their evidence was of a significant level of antipathy by [Mrs F], [Mrs K] and others connected with them to the defendant and his family. Both [Mrs F] and [Mrs K] rejected the accounts given by the defendant, his mother and brother of the detail of other incidents and rejected that at the time of this particular incident that had any issue with the defendant. [Mrs K] knew him, recognised his voice when she was in the house, had on earlier occasions looked after [Mr Schoolderman’s son] and was aware there were issues between her husband and the defendant but denied she had any issue with him. [Mrs F] said she did not really know the defendant.
The Magistrate erred in failing to make findings of fact as to whether or not the incidents in question occurred and whether he accepted the evidence of Mr Schoolderman, his mother and/or brother on the one hand or the evidence of Mrs F and Mrs K on the other hand. This is because the case was conducted at trial on the basis that the incidents were relevant to the facts in issue and did not go merely to credibility and this was accepted by the Police on appeal. In particular, the entirety of the evidence of Mr Schoolderman’s brother and mother would have been completely inadmissible if it had merely been adduced to discredit the prosecution witnesses by contradicting their denials of the incidents.[11] Given that the case was conducted on the basis that those incidents were relevant to a fact in issue, in all of the circumstances it was necessary for the Magistrate to make findings concerning them (especially the incident on 27 February 2008 which pre-dated the confrontation).
[11] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024.
In addition, once the Magistrate admitted the evidence by the defendant, his mother and brother contradicting the evidence of Mrs F and Mrs K, it was incumbent on the Magistrate to consider the impact of the conflict in respect of that evidence upon the credit of each of Mrs F and Mrs K.
If consideration had been given to these matters, there are a number of alternative ways in which theoretically a trier of fact might have dealt with the evidence.
For example, insofar as the evidence concerning the incident on 27 February 2008 was relevant to the matters in issue as going to the context of the confrontation in January 2010 and the relationship between the parties, in theory the Magistrate might have:
1accepted the evidence of Mrs F and Mrs K and rejected the evidence of the defendant and his mother and found that no incidents occurred involving Mrs F or Mrs K (in which event the evidence would ultimately have had no effect upon the result);
2accepted the evidence of the defendant and his mother in preference to the evidence of Mrs F and Mrs K, in which event the Magistrate would have needed to assess the effect of the existence of the incidents, together with all of the direct evidence, in making findings as to what occurred on 13 January 2010 (for example, this may have affected the assessment by the Magistrate that it was inherently unlikely that Mrs F and Mrs K would have attacked Mr Schoolderman);
3accepted that the incidents occurred, but nevertheless have concluded that he was satisfied beyond reasonable doubt that Mr Schoolderman was guilty of counts 2 to 5.
In relation to credit, the Magistrate might have:
1accepted the evidence of Mrs F and Mrs K and rejected the evidence of the defendant, his mother and brother and found that no incidents occurred involving Mrs F or Mrs K (in which event the evidence would have had no adverse effect upon the credit of Mrs F or Mrs K);
2accepted the evidence of the defendant, his mother and brother in preference to the evidence of Mrs F and Mrs K, in which event the Magistrate would have needed to assess the effect of the rejection of this evidence of Mrs F or Mrs K on his overall assessment of their credit and to have done so in the context of the other matters affecting their credit which he identified (such as departures between their evidence and their police statements and variances between their evidence and that of other prosecution witnesses);
3rejected the evidence of Mrs F and Mrs K as to the other incidents but nevertheless accepted each of Mrs F and Mrs K as reliable witnesses in relation to the incidents the subject of counts 2 to 5;
4relied upon the evidence of KH in respect of counts 3 to 5 notwithstanding that he was not prepared to rely upon the evidence of Mrs F or Mrs K.
I have given consideration to whether I can be satisfied beyond reasonable doubt, on the evidence before me, that Mr Schoolderman was guilty of counts 2 to 5 notwithstanding the failure of the Magistrate to make findings concerning the other incidents or assess the credibility of Mrs F and Mrs K by reference to those incidents. For this purpose, I assume (without of course deciding) in favour of Mr Schoolderman and against the Police that a finding were made that the 27 February 2008 incident occurred in accordance with the evidence of Mr Schoolderman and his mother and that a general adverse credit finding were made in relation to the evidence of both Mrs F and Mrs K.
Making that assumption, I consider it would be open to a trier of fact who heard and saw the witnesses to be satisfied beyond reasonable doubt that Mr Schoolderman was guilty of count 2, on the basis of the evidence of LF and AF. However, I cannot conclude that a trier of fact who had made adverse findings concerning the credit of Mrs K and Mrs F and found that they had falsely denied their involvement in, say, the incident which had occurred on 27 February 2008 would necessarily have been so satisfied. This is especially so given that KH did not observe Mr Schoolderman spitting at LF, AF had not mentioned the incident in her statement to the police and there were inconsistencies involving LF’s evidence in respect of other counts.
Similarly, I consider it would be open to a trier of fact who heard and saw the witnesses to be satisfied beyond reasonable doubt that Mr Schoolderman was guilty of counts 3 to 5 on the basis of the evidence of KH coupled with the evidence of LF and AF. However, determining satisfaction beyond reasonable doubt is a holistic process, which involves weighing all aspects impacting the credibility of all witnesses and all of the evidence of the prosecution and the defence. In undertaking this holistic process, a trier of fact would have needed to assess aspects including:
1the impact of an adverse credit finding in respect of Mrs F upon the assessment of the evidence of her young daughters LF and AF (especially given the possibility, identified by the Magistrate, that they had discussed their evidence between them notwithstanding their denials of having done so);
2assessment generally of the inconsistencies in the evidence of the prosecution witnesses in light of an adverse credit finding concerning Mrs K and Mrs F;
3whether it was inherently unlikely (as found by the Magistrate) for Mrs K and Mrs F to have attacked a man such as Mr Schoolderman in light of an assumed finding that they had participated in a previous attack (albeit in company with a number of men) upon Mr Schoolderman;
4assessment of the evidence of Mr Schoolderman and his son against the combined evidence of KH, LF and/or AF (depending on credit findings as to LF, AF and KH) (as opposed to the combined evidence also of Mrs K and Mrs F).
Given the holistic nature of an overall finding beyond reasonable doubt as to what occurred on 13 January 2010, without seeing and hearing the prosecution and defence witnesses, it is simply not possible for me to be satisfied beyond reasonable doubt on the face of the transcript and exhibits that Mr Schoolderman is guilty of those offences.
Conclusion
The conviction of Mr Schoolderman in respect of counts 2 to 5 is set aside and the matter is remitted for retrial in the Magistrates Court.