Sheahan v Lockley - [2017] TASSC 2

[2017] TASSC 2

COURT: SUPREME COURT OF TASMANIA

CITATION: Sheahan v Lockley [2017] TASSC 2

PARTIES:  SHEAHAN, Jason Myles Brendon
  v
  LOCKLEY, Andrew (Constable)

FILE NO:  956/2016
DELIVERED ON:  30 January 2017
DELIVERED AT:  Hobart
HEARING DATE:  2 September 2016
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Assertion magistrate failed to adequately warn himself about matters affecting unreliability of witness – Assertion magistrate as reasonable person could not have found guilt on evidence before him.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  F Cangelosi
             Respondent:  S Thompson
Solicitors:
             Applicant:  Simmons Wolfhagen
             Respondent:  Director of Public Prosecutions
Judgment Number:  [2017] TASSC 2
Number of paragraphs:  48

Serial No 2/2017
File No 956/2016

JASON MYLES BRENDON SHEAHAN v CONSTABLE ANDREW LOCKLEY

REASONS FOR JUDGMENT TENNENT J

30 January 2017

The applicant, Jason Sheahan, was charged with one count of common assault and one count of resist a police officer on complaint number 9580/15. He pleaded guilty to count 2, and not guilty to count 1. That matter went to hearing before Chief Magistrate Brett (as he then was), and, on 7 March 2016, his Honour found the applicant guilty. On 13 April 2016, the applicant filed a notice by which he sought to have the finding of guilt overturned. An amended notice to review was filed on 8 August 2016. That notice was further amended at the commencement of the hearing of the notice to review. The grounds of review as ultimately pursued were as follows:
"1The Court erred in fact in finding that the evidence of the complainant and of the witness Cleophas Turagendanwa ('Turagendanwa') was similar with respect to the question of how Turagendanwa and the applicant came to be inside the complainant's home.
2The Court erred in law by not adequately warning itself about all of the circumstances that made the witness Turagendanwa unreliable.
3The learned magistrate erred in finding the complaint proven when it was not open to him so to find as a reasonable person."
The events which gave rise to the charge of assault occurred at the home of Leeann Butwell at Charleston Place, Glenorchy on 11 November 2015. It was alleged that, on that day, the applicant assaulted Ms Butwell by punching her to the face and head. There is no dispute that Ms Butwell was assaulted by someone that day. She said she was, and photographs of her taken that day show injuries consistent with the allegation. The issue on the hearing was whether the applicant was the offender.
At the hearing before the Chief Magistrate, police called six witnesses. Two were civilians and the others were police. The civilian witnesses were the complainant, Ms Butwell, and Mr Turagendanwa. The applicant did not give evidence, and he did not comment in a record of interview.
Ms Butwell told the court that she was having a drink at her house with her good friend Cleo. A gentleman she did not know knocked on the door and asked if he could come in. She said he could not. She said she did not let strangers into her house. After this, Ms Butwell, Cleo and this other man were on the patio outside, and this man hit her with his fists an unknown number of times. She said Cleo tried to stop him. The man "pissed off", and Cleo stayed with her. The police then arrived. The applicant was found shortly after, across the road at Cleo's house. When she was cross-examined, Ms Butwell maintained that the assault occurred outside on the front porch at night. She also said that Cleo had not arrived at her house with the man who had hit her, but had already been there. She agreed she had initially told police she was king hit, but said in court she was hit more than once.
Mr Turagendanwa told the court that he and a man named Jason were drinking at his house and watching television. He identified the applicant as Jason. He said he and Jason went together to Ms Butwell's house to ask for a cigarette. Mr Turagendanwa knocked on the door, and Ms Butwell let both men in. He identified Jason to her as his friend. They were then sitting drinking beer. Jason and Ms Butwell argued. Jason had been walking round and Ms Butwell told him to sit down. During this argument, Ms Butwell was throwing her arms in Jason's face. Jason told her to stop swinging her arms around him. She didn't seem to listen, so he got angry and punched her. Mr Turagendanwa thought that Jason punched Ms Butwell on the face but could not say how many times. He said that, after the assault, Jason just sat down, leaving Ms Butwell bleeding. Shortly after, he and Jason left Ms Butwell's house because she kicked them out, and they went to his house.
Mr Turagendanwa told the court initially that when police arrived, he and Jason were sitting watching television. They heard a knock on the door, and went to the bedroom. He said police found Jason sitting on the bed, although, having regard to other evidence, it is doubtful he actually saw the moment police found the applicant. Mr Turagendanwa was cross-examined by the prosecutor with leave as a consequence of a statement he had made to police at the time of the events which contained some statements which were inconsistent with the evidence he had given. The evidence Mr Turagendanwa gave during the process of his being cross-examined by the prosecutor was confusing. He agreed he made the statement put to him, but said he did not remember saying some things and could not remember others. He said that Ms Butwell did not tell Jason he could not come in when he first arrived, and only told him to go after he punched her. It was put to Mr Turagendanwa that that was not what he told police. The following exchange then occurred:
"That's not what you told the police, is it?.....What I tell them was I was drunk and, yeah, we were drunk and so I was also on drugs, so –
You told police that he, Jason, started hitting her first, or hitting her, he started hitting her, that's what you told police?.....Yes, after –
Sorry?.....Yes, after how she was swinging a punch in his face.
That's not what you told the police though, is it?.....Yeah, I know that's not what I said, but what I'm saying is what I saw.
Yeah, but why didn't you tell the police then at that time? Why didn't you tell the police that Jason was hitting her – sorry, that she was hitting Jason?.....Because at that time I was confused.
But you're not confused now?.....No."
After that exchange, the prosecutor sought to tender the statutory declaration Mr Turagendanwa had made to police. That was objected to by counsel for the applicant. His Honour allowed the declaration to be tendered, giving his reasons as follows:
"I'm going to allow the statement to be tendered. It is relevant, it's relevant in the sense of – well it certainly goes to the credibility of his evidence. It – I'm satisfied that he's conceding that there may be inconsistency between what he told the police and what else he has said today, but at the end of the day that doesn't mean that the prior inconsistent statement can't be tendered. The precondition of tendering has been – under s43 has been established, has been achieved. The fact that there is an inconsistent statement, there is a very significant inconsistency, I think, which has been referred to, and that is whether or not the complainant started to hit the defendant before the defendant hit the complainant. The inconsistency in respect of that is clearly relevant to the credibility of the evidence of the defendant – sorry, of the witness and for that reason it should be admitted into evidence and will take effect as evidence of the truth of the contents having regard to s60."
That ruling is not the subject of any ground of review.
In that statutory declaration, Mr Turagendanwa identified the applicant as someone who had been drinking at his house, and with whom he then went to Ms Butwell's. He also identified the applicant as the person who assaulted Ms Butwell. He also said that he and the applicant left Ms Butwell's house together and went back to his home. When police arrived a little while later, they were banging on the doors. Mr Turagendanwa said he got up to answer the door but the applicant grabbed him and stopped him answering the door. He said he ended up opening the bathroom window, and talking to police through that.
After that declaration was tendered, Mr Turagendanwa was cross-examined by counsel for the applicant. Mr Turagendanwa agreed the applicant came to his house looking for somewhere to stay, and that he, Mr Turagendanwa, agreed he could stay. It was suggested to Mr Turagendanwa that he and the applicant were drinking, and that the applicant went to bed in Mr Turagendanwa's bed. It was also suggested that another male came to Mr Turagendanwa's unit and was drinking with Mr Turagendanwa, and it was that male who went to Ms Butwell's house with Mr Turagendanwa and assaulted Ms Butwell. Mr Turagendanwa initially said that another friend had come to his house. He then said that this other friend was not there at the time the applicant was. He said that was another day. He was pressed, but was adamant it was the applicant who went with him to Ms Butwell's house and assaulted her. It was also put to him that when police arrived he gave them a key to get into his unit, and that he then told police the applicant was asleep in Mr Turagendanwa's bedroom. Mr Turagendanwa agreed he gave police a key, and said the applicant was in his bedroom, but not that he was asleep. Mr Turagendanwa also said that when police arrived he was in the bathroom, and spoke to them through the window from there which was when he gave them a key to get in. Mr Turagendanwa was adamant there was only him and the applicant in his unit when police arrived. Mr Turagendanwa admitted that he did not read the statement police prepared, and that he was drunk and stoned on the relevant day, although he said he still knew what he was doing.
Constable Elise Clark told the court that she arrived at Ms Butwell's house at about quarter past six in the morning. Ms Butwell had obviously been assaulted. Ms Butwell said "Cleo's friend" did it, and pointed to Cleo's home across the street. Police went to that unit. Officers placed themselves at each of the two doors to the unit to prevent someone running away, and police knocked on both doors. No-one answered initially, but then Mr Turagendanwa put his head out a window near the rear sliding door. Constable Clark believed it was the kitchen window. Mr Turagendanwa initially told police there was no one else but him home. Constable Clark believed he was stalling. He then passed a key out to police. Police then went to the front door and used the key to enter the unit.
Police walked into the unit and Constable Clark said Mr Turagendanwa came from where he was towards the front door. He either said "Jason" had done it or implied he had. She said other officers walked past her, and found a male lying face down on a bed right in front of the glass sliding door where police had been knocking. Constable Clark followed the other officers, and the male, when she saw him, was being spoken to. He said his name was Nathan. Constable Clark did not search the unit, but described it as open plan and said she did not even think there was a bedroom, just a wall which partly divided the room where the bed was from the lounge area.
Constable Aiden Clark also gave evidence. He attended with other officers at both Ms Butwell's house and Mr Turagendanwa's unit. He did not add much to what the female officer said, save to indicate that Mr Turagendanwa referred to "Jason", and said he was asleep in the bedroom. The officer went in to that area and found the applicant. The applicant, when attempts were made to rouse him, moaned and groaned and was not co-operative.

Submissions of counsel for the applicant before the Chief Magistrate

Counsel for the applicant made the following submissions:
"The correct way to approach this case, in my submission is this.   You have evidence from a complainant who is unreliable, that she was assaulted.   There's no question that she was assaulted.   The evidence that the person sitting in the dock committed the assault comes entirely from Mr Turagendanwa.   Now, the proposition advanced by the Defence through cross-examination of Mr Turagendanwa, was that a different person had gone with him to the home of the complainant and that that person had assaulted the complainant whilst Mr Sheahan remained at Mr Turagendanwa's home in bed.
Now, there is a small amount of objective evidence which is to be found in support of that hypothesis.   The first is that when the police entered Mr Turagendanwa's home, Mr Turagendanwa, according to Constable Aiden Clark, honestly told the police that Mr Sheahan was in bed asleep.   The second objective piece of evidence is that Constable Aiden Clark himself formed the impression that Mr Sheahan was indeed asleep and that he shook him by the leg.   Mr Sheahan made some moaning sounds and then appeared to wake up.   That was his evidence.
The other objective evidence is the fact that in spite of the fact that Mr Turagendanwa's claim that Mr Sheahan had punched the witness a number of times in the head, seemingly with some force –
INTERRUPTION TO RECORDING
MR CANGELOSI:   (continuing) - mark upon Mr Sheahan's hand.   That was observed by Detective Senior Constable Wilby during the course of the interview. Now, it's my submission that looking at the photographs that were tendered on the Prosecution case, showing the injuries to the complainant's face, if a person were to cause wounds of that nature by use of the fists, there must be a mark left on that person's fist, and there wasn't, so the position that we are ultimately in, your Honour, is not too much different from that which sometimes attracts what is sometimes called an essential Crown witness rule in that the evidence rests – in order to convict the accused, where the police case largely depends on accepting the reliability of the evidence of a single witness, namely Mr Turagendanwa, the Court must have great caution.
Mr Turagendanwa contradicted himself a number of times in the course of firstly, giving his evidence-in-chief; secondly, during cross-examination he was found to be an unfavourable witness and that was the subject of a leave application.   Most importantly he agreed that on that night when Ms Butwell had been assaulted, a friend had gone to this house while Mr Sheahan remained in bed.   Now, this was the subject of an objection by Mr Dewit foreshadowing an application that the defence be limited in the manner of asking questions because yes, the witness was simply saying 'yes' to a number of propositions that I was putting to him, but no sooner was that application made and I then asked Mr Turagendanwa a wide open-ended question, having got to the point that this friend had accompanied him to Ms Butwell's house, he promptly recanted everything that he'd just said and said, 'Oh, that was a different night, it was actually Mr Sheahan.'
It's my submission that you cannot have any confidence that what Mr Turagendanwa said took place actually took place.   You cannot discount the possibility that there was another person, either who departed the house before the police arrived, or who remained concealed in the house while the police were there, who was the person who was responsible for assaulting Ms Butwell.   That person could well have been a closer friend than Mr Sheahan was to Mr Turagendanwa, and Mr Turagendanwa therefore preferred to lay blame at Mr Sheahan's door.   As the statement of Mr Turagendanwa, P4 makes clear, 'we aren't close friends'.   If a friend who was closer had come, in my submission, that would give Mr Turagendanwa potentially a reason to lie and to blame Mr Sheahan.
It's, in my submission, simply inconceivable that had Mr Sheahan done what the police allege he did, that is punch this woman a number of times to the head and then go to Mr Turagendanwa's house, that he would then fall asleep in bed, that is, it is my submission, simply inconceivable that a person would do that immediately after an assault of that nature.
HIS HONOUR:   Well, why is that?
MR CANGELOSI:   Well, your Honour can give account to your Honour's general understanding of human nature, and it's my submission that a person who does that would not simply fall asleep.   They are more – they are more likely to remain awake, especially given what Mr Turagendanwa was saying in the witness box, when he was saying that Mr Sheahan had gone there, when he said that upon return they had stayed up and watched some television and then Mr Sheahan had sat in the bedroom.   That's inconsistent with what Constable Aiden Clark says, that Mr Sheahan was asleep and Mr Turagendanwa knew him to be asleep.
At the end of the day Mr Sheahan had simply gone there as Mr Turagendanwa agreed, looking for a place to stay, he's fallen asleep and he has been woken up by a police officer.   Now, I – he has pleaded guilty to resist arrest.   In my submission, what occurred with the resisting arrest takes your Honour nowhere in terms of what had occurred earlier.   Mr Sheahan, yes, stated a false name, that was, however, after he knew that the police were there and wanted to speak to him.   I asked Constable Clark about the order in which the stating of the wrong name was made and he made it clear in cross-examination that it was after the police had identified themselves.
Mr Sheahan may have had all manner of reasons for giving the wrong name. He may have thought that he has been in enough trouble in his life, he doesn't want to be in trouble further. Half asleep –
HIS HONOUR:   No evidence of any of those?
MR CANGELOSI:   Well, precisely.   In my submission that takes you nowhere in determining what actually happened that night.   The nature of the assault given by – the account given by the complainant is so different from what Mr Turagendanwa said that we simply cannot have any confidence between them what actually transpired.   She says it was an assault that happened outside while she was standing up and it's not clear how many times she was hit, but she agreed she'd previously told police on the morning after, it was only one hit.   Mr Turagendanwa insisted it happened inside her house while she was sitting down on the floor.   Very, very different kind of assault.
In my submission you must simply have a reasonable doubt that Mr Sheahan was the person who carried out the assault   That's my submission, may it please."

Reasons for decision of the Chief Magistrate

His Honour's reasons were as follows:
"The charge against the defendant is one count of assault.   The onus of proof is on the prosecution and the standard of proof is beyond reasonable doubt.   If, at the conclusion of – after consideration of all of the evidence I entertain a reasonable doubt then the defendant's entitled to the benefit of that doubt, entitled to be acquitted, even if I think that – even if I suspect that he did commit the offence or even if I take the view that on the balance of probabilities he committed the offence, that those levels of satisfaction would not be enough to convict him of the charge and deprive him of the presumption of innocence.
The – I'll deal with the facts of the matter and then consider the question of lawfulness in a moment.   I note Mr Cangelosi's concession that the evidence establishes that the complainant was assaulted by one or more blows to her face.   I think that's a proper concession because I think the evidence is – clearly establishes that that was the case.   Of course there's her own evidence.   I – the impression I gained from her evidence was that she is likely to have been suffering from the effects of consumption of alcohol at the time that this incident occurred, that she doesn't have a good memory of the detail or even the timing of when the incident occurred, and that as far as matters of detail go, I would need to exercise some caution.
However it's clear to me, having regard to the whole of the evidence, that she did suffer an assault from someone.   The photographs of the injury to her face are entirely consistent with the type of assault that she has described, that is – well, I think she was quite clear, it was a number of blows to her face, a number of punches with a fist to her face, and all of the other evidence is consistent with that fact as well.   The crucial issue, of course, is whether it was the defendant who perpetrated those blows.   There may be some question about whether they were delivered in defence to an attack from her - I'll deal with that in a moment – but at the end of the day really the question to be resolved in this case is whether I'm satisfied beyond reasonable doubt that it was the defendant who perpetrated the blows.
The complainant, of course, can't assist in that regard, she doesn't – she wasn't in a position to identify the person.   Her evidence was though, that it was a friend of the witness, Mr Turagendanwa, and that they had come over to her premises, roughly or substantially in the circumstances that they all describe, that is that he'd come from his residence across the road with a person who was not – a male person not previously known to her.   I can infer from the evidence and I'm satisfied that they engaged in some drinking whilst at her house and at some – at some stage, either very shortly after arrival or during the – or after some period of time there, I don't think it matters a great deal – the assault occurred.   It doesn't matter, I don't think, apart from the suggestion – the original suggestion made by Mr Turagendanwa, that there may have been – it may have been in retaliation or in response to an attack from the complainant on the male person concerned, apart from that it doesn't really matter why the assault occurred, whether it was an argument, whether it was her refusing that person entry, whether it was her telling him to go home, whether it was because there was an argument over a cigarette, I don't think any of that matters greatly.   The fact of the matter is, did it happen?   It did, I'm satisfied of that, and was it the defendant who perpetrated the assault.
Defence counsel is quite correct.   The only real evidence in relation to the defendant being the relevant person – sorry, I should say the substantial evidence in that regard comes from Mr Turagendanwa and I do have to exercise caution in relation to his evidence because he did contradict himself. He contradicted himself in particular in relation to the question of whether it was an assault that was committed in response to an attack by the complainant.   He also contradicted himself on matters of detail, and he did during the course of some very leading questions.   There was no problem with that, of course, it's not a criticism of defence counsel, he's entitled to lead in cross-examination until he's stopped, but in response to some leading questions he did suggest that someone else had gone with him.
However, he clarified that very shortly afterwards and I believe what he said when he – to me it was a very – seemed to me to be a very honest and earnest statement that no, the person – the fact that he'd gone there with someone else actually occurred on a different day and did not involve this incident.   He thereafter was quite steadfast in his evidence that it was the defendant who was with him.   The defendant had perpetrated the assault.   He didn't maintain his evidence that it was a response to an attack by the complainant, and in any event, in relation to the question of the identity of the person who attacked the complainant, Mr Turagendanwa was consistent in his evidence, and of course, his evidence about that is consistent with his statement to police and with the contemporaneous out-of-court statements made shortly afterwards to police.
It's consistent with him pointing police in the direction of the defendant when they went to the premises and in my view I'm satisfied that Mr Turagendanwa was telling the truth about that matter.   He, of course was, it would seem, also affected by alcohol and drugs.   That, I think, probably impacts on questions of detail and on his recollection, but there's no reason to – for that reason to suggest that – or to take the view that there would be any – he would have any real doubt about who was with him and who actually perpetrated the assault and that was clear enough.   He resolutely, in the course of further cross-examination, disputed that there was any other person in the premises, in the bathroom, for example, and it seems to me that it was – his clear evidence, consistent in this respect at least with his statutory declaration, was that it was the defendant.   I accept his evidence about that.
I – it may be, and I perhaps should consider, that he did raise the question of self-defence, that is in respect of the lawfulness of any force that was applied by the defendant.   He did raise that initially in his evidence.   I don't think he was telling the truth about that aspect of the matter.   It's not consistent with what he put in his statutory declaration.    It's not consistent with the complainant's evidence.   It wasn't put to the complainant.   That's – I need to be careful in relation to that because there can be a number of reasons why matters are not put by counsel in the course of cross-examination, but I think that - in this particular case I think that an inference can be drawn that had it been the – no, I won't draw that inference, I don't think it's appropriate given that the defendant hasn't given evidence in this case.
The statutory declaration of the – of Mr Turagendanwa goes into evidence as truth of the facts asserted in that statutory declaration.   In my view that is the more reliable version rather than the initial statement made by him that there was a blow that was in retaliation from some attack by the complainant.   Even if there had been an attack by the complainant Mr Turagendanwa didn't actually give evidence that the blow from the defendant or the blows from the defendant were in self-defence, rather he said he became angry and struck her. He struck her a number of times, he obviously struck her in a very violent and forceful manner, a manner that involved the use of reasonable force that far exceeded any provocation or need to defend himself from the complainant.
I note also that the – I think I can have regard to his response to the police when they woke him or found him in the bedroom.   Perhaps he was woken up; I suppose I have to give him the benefit of the doubt on that, it wouldn't seem to be entirely consistent with Mr Turagendanwa's evidence.   He suggested they were both in the living area and then went into the bedroom when the police arrived, or the defendant went into the bedroom when the police arrived, but it seems to me that his actions in giving a false name to police and then resisting when they attempted to arrest him, is consistent with a consciousness that he had committed a wrongful act, consistent with the consciousness of guilt in respect of the assault.
In doing so I need to have regard and be able to exclude that he acted that way for a reason that doesn't involve a consciousness of guilt and I am in a position, I think, to do that, particularly given the proximity of – the temporal proximity of when the police went to the premises, the overall circumstances in which they went to the premises.   It seems to me that the actions of the defendant are consistent with him being conscious that he had committed a wrongful act and that that's why he didn't want to go with the police to the police station.
There's absolutely no evidence that there was anybody else at the premises when the police went there.   I accept that they didn't search – thoroughly search the premises, they didn't - and I'm not in the position to necessarily exclude that someone else was hiding there, but at the end of the day I accept Mr Turagendanwa's evidence about that.   At no stage, apart from the – his agreement with defence counsel during the course of the leading questions and cross-examination, at no stage other than that did he make any suggestion that there was anybody else present on the day in question, and as I said, he quickly clarified that evidence.
I'm satisfied beyond reasonable doubt that the – it was the defendant who applied force to Ms Butwell by punching her in the face on more than one occasion and I'm satisfied that the application of that force was unlawful.   I find count one proved."

Discussion

As to ground 1 of the notice to review, the passage which gave rise to this asserted error appeared early in his Honour's reasons where he was summarising the evidence. He expressed himself satisfied that an assault had occurred. His Honour said he gained the impression from Ms Butwell that she was likely to have been affected by alcohol at the time of the incident and did not have a clear memory of timing of when the incident occurred. His Honour warned himself that, as to matters of detail, he needed to exercise some caution in relation to her evidence.
His Honour then said:
"Her evidence was though, that it was a friend of the witness, Mr T and that they had come over to her premises, roughly or substantially in the circumstances that they all describe, that is that he'd come from his residence across the road with a person who was not – a male person not previously known to her."
The complaint of counsel for the applicant was that his Honour had incorrectly characterised this evidence as "circumstances they all describe". Only two witnesses dealt with the issue, that is Ms Butwell and Mr Turagendanwa. As to how the offender arrived at Ms Butwell's home, Mr Turagendanwa said he and his friend arrived together, while Ms Butwell said that Mr Turagendanwa came alone and the other man came after.
If his Honour intended by his remark to imply that both Ms Butwell and Mr Turagendanwa said the two men had come together, I accept that is an error. However, in any event, counsel quite sensibly conceded that, standing alone, this ground may not get the applicant very far. He suggested however that it gained a degree of relevance when considering the other grounds of review.

Grounds 2

Ground 2 was as follows:
"2The Court erred in law by not adequately warning itself about all of the circumstances that made the witness Turagendanwa unreliable."
The argument by counsel for the applicant was based on principles extracted from R v Murray (1987) 11 NSWLR 12. That was a decision of the New South Wales Court of Appeal which dealt with complaints about a trial judge's directions in a case involving sexual offences. The law in that State then provided that a trial judge did not have to warn a jury about convicting on the uncorroborated evidence of a complainant in certain circumstances. Lee J, with whom Maxwell and Yeldham JJ agreed, said at 19:
"In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of the witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in, but a direction of that kind does not of itself imply that the witness' evidence is unreliable."
Counsel submitted that this principle extended beyond the giving of such a warning only when dealing with the actual commission of a crime, but also extended to situations where there was only one Crown witness who purported to identify an offender. Counsel also submitted that it was incumbent upon the Chief Magistrate to, not only warn himself in that way, but to also expressly state that he was warning himself accordingly.
Counsel for the applicant set out in his written submissions "observations" of the High Court in the matter of Robinson v The Queen (1999) 197 CLR [25] and [26]. Their Honours, Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ, were dealing with an appeal in relation to a conviction for sexual offences committed against an 8-year old boy in circumstances where there was no complaint for about three years and no witness to the events. Their Honours said:
"As the dissenting judgment in the Court of Appeal pointed out, there were particular features of the case which demanded a suitable warning. Without seeking to describe these features exhaustively, they included the age of the complainant at the time of the alleged offences, the long period that elapsed before complaint, which in turn meant that it was impossible for a medical examination to verify or falsify the complaint, and the inconsistency in some aspects of the complainant's evidence as to whether penetration occurred. A curious feature of the case was the absence of any conversation of any kind, on the evening in question or later, between the complainant and the appellant, about the appellant's conduct. There was no threat, and no warning to the complainant not to tell anyone. The complainant and the appellant maintained a harmonious relationship. There was no suggestion of any earlier or later misconduct by the appellant towards the complainant. An important aspect of the inconsistency and uncertainty about the matter of penetration was that the complainant said he was asleep when the first act of penetration occurred, and that he woke up while it was going on. Finally, some features of the history of complaint may have indicated a degree of suggestibility on the part of the complainant.
Taken together with the absence of corroboration, these matters created a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt. That warning should have referred to the circumstances set out above, and should have been expressed in terms which made clear the caution to be exercised in the light of those circumstances."
Counsel for the applicant also extracted in his written submissions some remarks by Kirby J in Tully v The Queen (2006) 231 ALR 712 at [53] and [54]. I do not set them out because they largely repeat the matters raised in Robinson.
In his oral submissions, counsel for the applicant referred to the matter of Flemming v The Queen (1998) 197 CLR 250. That was an appeal against a finding of guilt in relation to sexual offences dealt with by a judge alone in New South Wales. The passage to which counsel referred contained submissions of counsel and not statements of principle by the court. Further, that decision must be read in the context that the court was dealing with the interpretation of a particular statutory provision dealing with judge-alone trials. The particular provision being dealt with was the Criminal Procedure Act 1986 (NSW), s 33. Section 33(3) provided that the judge in a judge-alone trial was required to take into account any warning which any Act or law would require be given to a jury. Their Honours said at 251:
"The obligation imposed by s 33(3) to take warnings into account must be seen to be discharged."
The passages to which counsel referred cannot be taken to necessarily support the proposition that the Chief Magistrate in this case was obliged to expressly state that he had given himself a particular warning.
Counsel for the applicant also referred to Dennis v Davis [2010] NTSC 35 to support his submission that the Chief Magistrate was obliged to expressly warn himself about the unreliability of Mr Turagendanwa's evidence. In that case, Southwood J was dealing with an appeal against a magistrate's decision to convict an alleged offender of assaults which were said to have occurred in respect of a number of complainants in a wave pool. A significant issue on the hearing before the magistrate was the identification of the alleged offender. Southwood J canvassed a number of authorities dealing with the adequacy of reasons of both judges and magistrates. At [18] and [19], his Honour said:
"[18] As to warnings and directions, in R v Green Doyle CJ stated:
'In the present case, the trial judge gave no such warning [a Longman warning] to himself. In the case of a trial by judge alone, a warning that should be given to the jury by reference to the aspects of the facts of the particular case, should usually be recorded in the reasons of the trial judge, to ensure that the matter giving rise to the need for the warning is not overlooked, and also to demonstrate that the judge has properly directed himself or herself on the facts. The warning should be recorded in the trial judge's reasons even though there is no statutory requirement to that effect: cf Fleming v The Queen at 263-264. If the circumstances of the case call for a warning, then it is necessary for the trial judge to show that the warning has been heeded.
It does not follow that as a matter of course that a failure to give a warning that should be given will result in the appeal being allowed: Fleming v The Queen at [32]. Whether the failure to give a warning that should be given will mean that an appeal must be allowed will depend upon whether the failure to give the warning gives rise to a substantial risk of a miscarriage of justice. However, usually a failure to give a warning that is required would give rise to a real risk of a miscarriage of justice.'
[19] In a number of cases it has been held that magistrates are required to expressly warn themselves about the inherent unreliability of identification evidence."
In Dennis, the case against the alleged offender was a circumstantial case, and none of the alleged victims actually saw who touched them. The identification evidence which was the subject of concern in that case was given by the various complainants. It was said that none actually saw the alleged offender touch them, their observations of the man they thought had touched them were fleeting and the wave pool was crowded. None of the complainants actually knew the alleged offender. There were a number of other factors which might have impacted adversely on the reliability of the identification evidence.
Southwood J analysed the magistrate's reasons and then said at [77]:
"[77] Having reviewed the authorities it seems that, in relation to a warning about identification evidence, the law has progressed to a stage where, if identification evidence is the only evidence which implicates an accused, it is necessary for a magistrate to warn himself about the special nature of identification evidence and those matters which might weaken the identification evidence. There should be a reference to the possibility that an honestly mistaken witness can be a convincing witness and that two or more honest witnesses can be just as mistaken as one. The magistrate should then act on the warnings and explain why, after taking account of the warnings, the evidence nonetheless satisfies the magistrate. In this regard I agree with the remarks made by McKechnie J in Moores v Renting. His Honour's remarks are applicable even though in the Northern Territory there is no equivalent statutory provision to s 31 of the Magistrates Court Act2004 (WA)."
There is no dispute that specific warnings were required in the matter of Dennis and that the reasons of the magistrate did not adequately make clear his Honour had warned himself appropriately. That was the issue with which Southwood J was dealing and not, with respect, the issue raised in this case. In the present case, the situation was not that Mr Turagendanwa saw a person assault Ms Butwell, and the circumstances were such that the sort of factors referred to by Southwood J impacted on his identification of the offender. Here, Mr Turagendanwa said that he was with the applicant this night, he knew him, the applicant was actually staying with Mr Turagendanwa, and they were drinking together both at his home and that of Ms Butwell. The present case involved an assertion that Mr Turagendanwa was such an unreliable witness generally that his evidence that the applicant was the offender could not be relied upon. Counsel for the applicant suggested to Mr Turagendanwa in cross-examination that there was another male with him this night and it was that male who assaulted Ms Butwell. There was no evidence from any witness to the effect there was a second male at Mr Turagendanwa's house that night. The only support, in my view, for that possibility arose from a leading question to Mr Turagendanwa from counsel for the applicant which resulted in Mr Turagendanwa initially agreeing another male came to his unit that night, but then resiling from that immediately.
As to any warnings in relation to Mr Turagendanwa's evidence, counsel for the applicant submitted that it was necessary for the Chief Magistrate to warn himself as to the special nature of identification evidence and those matters which might weaken such evidence. Counsel submitted that in this case those special circumstances were:
-     The only evidence that the applicant had assaulted Ms Butwell came from Mr Turagendanwa.
-     Mr Turagendanwa had conceded in cross-examination that on the morning of the assault he had gone to Ms Butwell's home with a friend while the applicant remained in Mr Turagendanwa's unit in bed.
-     Mr Turagendanwa was particularly unreliable because:
o   he made a number of prior inconsistent statements, one of which the Chief Magistrate described as a very significant one;
o   he was affected by alcohol and cannabis when the assault occurred and when he made statements to police;
o   his evidence about the circumstances in which his statements were made was contradicted by that of police.
Counsel, when dealing with the unreliability of Mr Turagendanwa's evidence also referred to other factors. He submitted that there was an apparent absence of marks on the applicant's knuckles, and there was no forensic evidence which might indicate that Ms Butwell's blood was on the applicant's clothing.
Counsel for the applicant submitted that the Chief Magistrate should have referred to each of these factors explicitly so that it was clear he had appropriately warned himself, and, in the absence of such an explicit warning, there was error. As is clear from the authorities, the need for explicit warnings depends on the case being dealt with. The matter of Dennis was a case which clearly demanded warnings and the magistrate's reasons in that case did not make clear he had instructed himself appropriately. The present case is, with respect, very different.
As to the reasons of the Chief Magistrate, his Honour did not identify every single matter that counsel for the applicant has now identified when he considered Mr Turagendanwa's evidence. There can however be absolutely no doubt that his Honour was aware of shortcomings with Mr Turagendanwa's evidence and that he had to be careful with it. Counsel for the applicant emphasised more than once what he relied on as evidence there was a second unnamed male present on the night of the assault. He submitted that Mr Turagendanwa had "conceded during cross-examination that on the morning of the assault, he had gone to the home of the complainant whilst the applicant remained in bed at the witness' home." The passage in the cross-examination actually relied upon as supporting this submission was the following:
"You agree with that. When Mr Sheahan went to bed did a friend of yours come over?.....Well was that the same day the incident happen?
Sorry?.....What day was that, same day?
Same day. So when Mr Sheahan went to bed a friend of yours came over, a male person, do you agree?.....Yeah, I remember now, yeah, I know, yep, true.
And you stayed with that male person until around 5:00, maybe 6:00 a.m. on the following morning, do you agree?.....Yep.
And you went with that person to Ms Butwell's house, do you agree?.....Yeah.
Okay."
The exchange followed counsel putting a number of propositions to Mr Turagendanwa. It is clear even from the transcript that Mr Turagendanwa was having some difficulty following what was being suggested. The exchange was then followed by the prosecutor asking for a direction to counsel to stop the leading questions because of the way Mr Turagendanwa was responding. When that issue was dealt with and counsel resumed his questioning, he put to Mr Turagendanwa that he had just said he went to Ms Butwell's with somebody else, and Mr Turagendanwa immediately said that was a different day. Mr Turagendanwa denied he went to Ms Butwell's with somebody else on the day of these events, and denied it was some other friend who had hit Ms Butwell.
Mr Turagendanwa's evidence and his Honour's consideration of and reliance upon it, need to be considered in the context of all the evidence before the Chief Magistrate. This was not a case anything like that in Dennis. As I have already pointed out, the applicant was a friend of Mr Turagendanwa, and therefore known to him and not a stranger. The applicant was staying at Mr Turagendanwa's unit. Mr Turagendanwa did agree, when being led by counsel for the applicant, that he had gone to Ms Butwell's with another person. Before he did agree, he queried whether this was the same day as the assault. He was told yes. After giving that evidence, he almost immediately resiled from that statement, and was adamant the applicant went with him to Ms Butwell's and it was the applicant who hit her.
There can be no dispute that in determining the case his Honour had to take care with the evidence of Mr Turagendanwa. That witness had contradicted himself as between what he told police shortly after the incident and what he said in court. He admitted that he had been drinking alcohol and using drugs. He admitted that when he spoke to police he was confused. A reading of the transcript of Mr Turagendanwa's evidence shows a number of inconsistencies. However, he was, as I have said, adamant that the person with him at Ms Butwell's home was his friend "Jason" and that it was "Jason" who punched Ms Butwell. He was also adamant that there was no one other than he and the applicant at his unit when police arrived, and that there had been no other friend at his unit that night with whom he had been drinking while the applicant slept.
Counsel also referred to what he described as objective evidence which was inconsistent with Mr Turagendanwa's evidence. He referred to evidence that police had not observed marks on the applicant's knuckles which marks, he said, would have to have been there if the applicant had punched Ms Butwell such as to cause the injuries she had. There was no expert evidence as to that, nor any suggestion the police officer who gave that evidence was necessarily looking for such marks.
Taking the foregoing matters into account, I am not satisfied that the applicant has established in the circumstances of this case that the Chief Magistrate failed to adequately warn himself about the circumstances that might have made the witness, Mr Turagendanwa, unreliable. This ground should fail.

Ground 3

Ground 3 was in the following terms:
"The learned magistrate erred in finding the complaint proven when it was not open to him so to find as a reasonable person."
This ground was amended to read as above at the commencement of the hearing. Notwithstanding that amendment, counsel for the applicant submitted that the principles arising from M v The Queen (1984) 181 CLR 487 were applicable to the amended ground. That was a decision of the High Court which dealt with an appeal from a decision of the Court of Criminal Appeal in New South Wales on the basis of an assertion that a jury verdict was unsafe and unsatisfactory. Evans J in this Court dealt with that type of ground in the context of a review of a decision of a magistrate in Phillips v Arnold [2008] TASSC 6, (2008) 17 Tas R 199, where his Honour said at [10]–[12]:
"10 By the first ground of his notice to review, the applicant asserts that the learned magistrate's finding that the applicant was guilty is unsafe and unsatisfactory. As particularised, this ground is a contention that there was insufficient evidence to satisfy the learned magistrate that the applicant had driven his utility and, as argued, this contention was pressed as if this Court was rehearing the matter. That the contention is advanced under the cover of a ground asserting that the finding of guilt was unsafe and unsatisfactory must not divert this Court from applying the statutory test that governs the review, that is, error on the part of the learned magistrate of fact or law or both; Justices Act 1959, s107(4)(a). As to this statutory test, in Australian Securities and Investment Commission v Hosken (No 2) [2000] TASSC 12, Cox CJ said:
'In this jurisdiction, there is a well established line of authority, drawing largely from a similar line developed in the Supreme Court of Victoria, that an appeal by way of notice to review is not to be treated as an appeal by way of rehearing. In Richardson v Shipp [1970] Tas SR 105, Burbury CJ said, at 117:
"This is not an appeal by way of rehearing ... . The decision of a court of petty sessions upon questions of fact is to be treated upon a motion to review in the same way as an appeal from the verdict of a jury. In Taylor v Armour& Co Pty Ltd [1962] VicRp 48; [1962] VR 346, at p 351, in the joint judgment of the Full Court, the Court said:
'We have come to the conclusion that we should adopt the view that the Supreme Court on an appeal from petty sessions by way of order to review should, with regard to any question of fact, act according to long-established practice, and treat the matter in the same way as an appeal from the verdict of a jury. This was the view clearly stated by Hood J, in Aldom v Dunn [1917] VicLawRp 9; [1917] VLR 70, 23 ALR 3, and by Herring CJ, in Young v Paddle Bros Pty Ltd [1956] VicLawRp 6; [1956] VLR 38. It is a very long established practice, and appears to have been adopted by the Full Court in the early days of the colony, by analogy to the practice followed in England, under earlier procedures whereby decisions of magistrates were called in question ¾ see R v Reason [1795] EngR 4145; (1795) 6 TR 375; R v Smith [1800] EngR 191; (1800) 8 TR 588, at p 590; and see in Victoria R v Mollison; Ex parte Crichton [1876] VicLawRp 86; (1876) 2 VLR (L) 144; R v Grover; Ex Parte Parsons [1881] VicLawRp 115; (1881) 7 VLR (L) 334; Quick and Berriman, The Victorian Magistrate (1924), at p 473, and Paul on Justices (1936), at p 479. The rule which prevails with respect to appeals from the county court, or from a single judge of the Supreme Court to the Full Court, or from this Court to the High Court, and which is stated in Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, therefore does not apply. Accordingly, it is not for this Court to make up its own mind upon the evidence, though giving weight if necessary to the fact that the tribunal below has seen the witnesses. This Court has merely to see whether there was evidence upon which the magistrate might, as a reasonable man, come to the conclusion to which he did come'."
Taylor v Armour & Co Pty Ltd (supra) has been followed in Victoria in Durstan v Mercuri [1969] VicRp 62; [1969] VR 507 at 514 (per Menhennett J); Surling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 at 11 (per Stephen J); Hardy v Gillette [1976] VicRp 36; [1976] VR 392 at 395 (per Anderson J) and Jansz v G M B Imports Pty Ltd [1979] VicRp 59; [1979] VR 581 at 589 (also Anderson J). In Tasmania, the same view has been taken in Bedelph v Weedon [1963] Tas SR 69 at 81 (Full Court); Benson v Rogers [1966] Tas SR 97 at 99 (Burbury CJ); Lowe v Burles 46/1976 Chambers J; Hrycyszyn v Groves & Anor 27/1982 Everett J; Greaves v Aikman (1994 - [1994] TASSC 129; 1995) 4 Tas R 196 (Cox J). In Kelly v O'Sullivan (1994 - [1995] TASSC 72; 1995) 4 Tas R 446 Green CJ said that he saw no reason to reconsider 'that long line of authorities', and found it unnecessary to do so for the purpose of that case. Crawford J, at 461, said of the quotation I have cited from Richardson v Shipp (supra) that he was 'not persuaded that it is an incorrect statement of law providing it understood that a criminal jury was being referred to and not a civil jury'.
11 In Kelly v O'Sullivan (supra), the Full Court considered whether a ground in a notice of review that asserted that a magistrate's decision was unsafe and unsatisfactory was necessarily invalid. In holding that this was not so, Green CJ said at 451:
'I hold that if a judge who is hearing a notice to review a magistrate's determination of guilt is not satisfied that it was open to the magistrate to be satisfied beyond reasonable doubt that the defendant was guilty then it has jurisdiction to review the order under the Justices Act 1959 because to find a charge proved when a reasonable doubt ought to have been entertained is an error within the meaning of Justices Act 1959, s107. It follows that this Court cannot say a priori that a ground of a notice to review which alleges that an order made by a magistrate should be set aside because it is based upon a decision which is unsafe or unsatisfactory is not a valid ground. However it will only be a valid ground if in fact it is based upon an allegation that the decision is unsafe and unsatisfactory because the magistrate was in error because he was satisfied that a charge was proved when he ought to have entertained a reasonable doubt. Notwithstanding the terms in which it is drafted that was in fact the basis upon which ground 1 of the notice to review was argued before this Court and I therefore hold that it was a valid ground.
I should make it clear that nothing I have said is intended to suggest that the functions of a judge hearing a notice to review are to be equated generally with those of a court of criminal appeal hearing an appeal from the verdict of a jury. In particular insofar as dicta which lay down how an appellate court should discharge its function are derived from statutory provisions which require the court to allow an appeal if it is satisfied that on any ground there has been a miscarriage of justice they are not applicable to the functions of this Court upon the hearing of a notice to review which may only review the order of a magistrate if it is satisfied that there has been an error of fact or law or both.'
12 Consistent with the above, there is no justification for confusing the statutory test for invoking the jurisdiction of this Court on a notice to review with that which invokes the jurisdiction of the Court of Criminal Appeal, or with what has been described as a common law test. Such an endeavour was made and rebuffed in Hajdu v Brown [2007] HCATrans 245 (24 May 2007). In that case, the applicant, who was seeking special leave to appeal to the High Court against the outcome of a notice of review pursuant to the Justices Act, s107(4), contended that the primary judge had employed the wrong test in deciding whether the convictions under review were unsafe, unsatisfactory, or unreasonable. In dismissing the application for special leave, Hayne J, agreed with by Crennan J, said:
'[The applicant] contends that an appeal would require consideration of what he described as 'the correct approach and application of the common law test formulated in [M v The Queen [1994] HCA 63; (1994) 181 CLR 487] applied to a summary finding of guilt'.
The relevant question presented by the applicant's notice to review under the Justices Act was whether there was an error or mistake of fact. This Court's decision in M v The Queen was directed to the different question of whether, in the terms found in the common form criminal appeal legislation, there has been, on any ground, a miscarriage of justice. Although what is said in M v The Queen may provide some assistance in deciding whether a court of summary jurisdiction has made an error or mistake of fact, the ultimate question is presented by the relevant statutory provision, not a "common law test".'"

Counsel also made submissions by reference to Fox v Percy (2003) 214 CLR 118. Counsel quoted a passage from the reasons of Gleeson CJ, Gummow and Kirby JJ at [30] where their Honours said:
"It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The 'Palitana'):
'... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.'"
However, the headnote for the case at 118 provides useful statements to which counsel made no reference. These were:
"A finding of fact by a trial judge, based on the credibility of a witness, may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge's conclusions are erroneous or where it is concluded that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case.
So held, by Gleeson CJ, Gummow and Kirby JJ, Callinan contra",
and
"Per McHugh J. An appellate court is entitled to set aside a trial judge's finding based expressly or inferentially on demeanour if there is something that points decisively and not merely persuasively to error on the part of the judge acting on his or her impressions of a witness or witnesses."
The reference to passages from Fox v Percy by counsel for the applicant was made in the context of the Chief Magistrate's remarks about certain evidence of Mr Turagendanwa. His Honour said, in relation to a particular statement by Mr Turagendanwa, that it seemed to him "to be a very honest and earnest statement". Counsel submitted that, in making that remark, his Honour was saying that it was the witness' demeanour which led him to accept that evidence. Counsel submitted by reference to Fox v Percy that any intrinsic merit in Mr Turagendanwa's evidence was limited for reasons he had already articulated in respect of ground 2. In effect, counsel submitted that his Honour gave too much weight to demeanour.
To succeed on this ground, the applicant must establish error on the part of the Chief Magistrate. He must establish that it was not open to the Chief Magistrate as a reasonable person to conclude beyond reasonable doubt that the applicant was guilty. His entire argument rests on submissions that the only witness who identified the applicant as the perpetrator of the assault was Mr Turagendanwa, and he was an unreliable witness. The emphasis in counsel's submissions was on the evidence of Mr Turagendanwa to the effect that he went to Ms Butwell's home on the morning of the assault with a person other than the applicant, evidence which emerged in response to very leading questions and which the witness almost immediately withdrew.
There is no doubt that Mr Turagendanwa was not a wholly reliable witness. He contradicted himself and on his own evidence was affected by drugs and alcohol at the time of the relevant events. However, the Chief Magistrate had evidence of the following:
-     Police attended Ms Butwell's home at about 6.20am in the morning.
-     Ms Butwell had obviously then very recently been the subject of an assault which caused injuries to her face.
-     She told police that the person who did it "pissed off" and "Cleo" (Mr Turagendanwa) who had been there at the time of the assault stayed with her. Mr Turagendanwa was clearly not with her when police arrived.
-     Police went straight to Mr Turagendanwa's unit across the road. They found two people there, that is him and the applicant.
-     There was evidence that unit was small and open plan. The area where the bed was did not have an actual door closing it off but was screened in part by a wall. There was also evidence that Mr Turagendanwa had agreed to the applicant using his bed because Mr Turagendanwa was planning to stay up all night. The inference clearly open was that there was only one bed.
-     When police arrived at Mr Turagendanwa's unit, they stationed themselves at front and back doors, in case somebody tried to run away, and those doors were almost within sight of each other. Police were knocking loudly on both doors, one of which was the rear glass sliding door, and they could hear noise in the unit but nobody answered the door. Ultimately the applicant was found on the bed which was in the area adjacent to the door police had been knocking on. When Mr Turagendanwa put his head out what was variously described as the kitchen or bathroom window and spoke to police, they gained the impression he was stalling until he eventually "covertly" passed them a key which allowed them to open the front door of the unit and enter.
-     Mr Turagendanwa was adamant there was nobody else in the unit, and that the applicant was with him at Ms Butwell's home and was the person who assaulted her.
The police admitted they did not actually search the unit. However, there was no evidence at all of any other person being with Mr Turagendanwa that morning or being in his unit. The only suggestion such a person existed came from questions put to the witness in cross-examination. He ultimately denied there was anyone else there. Counsel for the applicant also relied on the fact that a police officer who sat across a desk from the applicant when he was in custody said he had not seen any marks on the applicant's knuckles. It was submitted such marks would have to have been present on the actual assailant's knuckles, and the fact that there were none was an objective fact consistent with the applicant not being the assailant. There was no expert evidence to support this proposition. Counsel also referred to evidence of a police officer who found the applicant to the effect that the applicant appeared to be sleeping when found.
The Chief Magistrate was entitled to have regard to the whole of the evidence before him. Despite counsel's submissions it is clear, particularly from a discussion during Mr Turagendanwa's evidence, that the Chief Magistrate was alert to how Mr Turagendanwa was dealing with the process of giving evidence, and that his Honour had an opportunity to draw conclusions from that. It is trite to say that there was, in this case, a peculiar advantage the Chief Magistrate had of being able to observe the various witnesses as they gave evidence which was not available to this Court.
I am of the view, having considered the whole of the evidence, that the conclusion as to guilt drawn by the Chief Magistrate was one which was reasonably open to him given the totality of the evidence and the particular advantages he had in dealing with two civilian witnesses who were clearly difficult. Ground 3, in my view, should fail.

Outcome

The notice to review is dismissed.