Sleeman v Police No. Scgrg-98-925 Judgment No. S6915

SLEEMAN v POLICE
[1998] SASC 6915

Magistrates Appeal
Bleby J

Introduction

The appellant appeals against the confirmation by a magistrate of an ex parte domestic violence restraining order made against him in favour of his former wife Susan Sleeman (the complainant). Section 4 (1) of the Domestic Violence Act 1994 ( the Act ) authorises the making of a domestic violence restraining order where there is a reasonable apprehension that a defendant may, unless restrained, commit domestic violence, and the Court is satisfied that the making of an order is appropriate in the circumstances. Domestic violence is defined in s4(2) of the Act, which provides as follows:
“(2) For the purposes of this Act, a defendant commits domestic violence -
(a).... if the defendant causes personal injury to a member of the defendant’s family; or
(b)if the defendant causes damage to property of a member of the defendant’s family; or
(c).... if on two or more separate occasions -
(i).... the defendant follows a family member; or
(ii)    the defendant loiters outside the place of residence of a family member or some other place frequented by a family member; or
(iii).. the defendant enters or interferes with property occupied by, or in the possession of, a family member; or
(iv)   the defendant gives offensive material to a family member or leaves offensive material where it will be found by, given to or brought to the attention of a family member; or
(v).... the defendant keeps a family member under surveillance; or
(vi)   the defendant engages in other conduct,
so as to reasonably arouse a family member’s apprehension or fear.”
The Act provides for two principal ways in which a domestic violence restraining order may be made. An order may be made following a defendant being summoned on complaint to attend a hearing before a magistrate. Alternatively, pursuant to s9(2) of the Act, a domestic violence restraining order can be made on an ex parte application. However in such a case the defendant must later be summoned to appear before the Court to show cause why the ex parte order should not be confirmed. I shall refer to this later hearing as the confirmation hearing.
In this case an ex parte order was made against the appellant on the 21st of January 1998. The order was framed in the following terms.
“On the 21st of January 1998, the Court being satisfied that there is a reasonable apprehension that you may, unless restrained :
Commit domestic violence.
AND having heard the matter in your absence ordered that you be restrained in the following terms:-
1...... Interim order that defendant be restrained from attending in the immediate vicinity of 24 Nairne Road, Woodside or any other premises where Susan Sleeman may from time to time reside, save and except that he may attend for the purposes of collection or returning children for the purpose of access previously arranged with all victims at which time he is permitted to remain only for so long as necessary to drop off or collect children.
2.Defendant not permitted to enter the house or the property.
3...... Defendant restrained from assaulting, harassing, threatening or intimidating Susan Sleeman or from contacting or communicating directly or indirectly, in person, by telephone, in writing or otherwise, save and except for communicating with alleged victim for the purpose of resolving matrimonial matters and/or arranging access.”
In addition, pursuant to the requirements of s10 of the Act the Court made a number of supplementary firearms orders in respect of the appellant. The content of those orders is not relevant for present purposes and I therefore do not propose to set them out.

The facts

The complainant and the appellant separated on 27 November 1996 after a marriage lasting 20 years. A divorce settlement was finalised on or about the 14th of March 1998. The separation was amicable and it was agreed that the complainant would continue to reside in the former matrimonial home with the couple’s five children. (The appellant and the complainant continue to be the current registered owners of the property.) The complainant testified that when her husband left she told him that he could visit the children at any time. It was not in dispute between the parties that following the separation the appellant would attend at the former matrimonial home some four to five times a week and that he would enter the house without knocking.
At the confirmation hearing the complainant’s case for the confirmation of the interim domestic violence restraining order revolved predominantly around three separate alleged incidents involving her and the appellant during which he is said to have intimidated her and behaved in such a manner as to place her in fear of him. However, the complainant also relied upon the appellant’s overall pattern of behaviour after the separation including the frequency of his visits and his propensity to come around unannounced and enter the house without knocking.
In relation to the three incidents upon which the complainant principally relied at the confirmation hearing the following evidence was given. The first incident occurred on Good Friday, 1997. It had been arranged for the complainant’s children to have dinner with their father, the appellant, that night. The complainant’s evidence was that during the afternoon the children had told her that they did not wish to go to their father’s for dinner because they had heard that his girlfriend was going to be there. The complainant then telephoned the appellant, informing him that his children would not be attending and rebuking him for arranging to see them at a time when his girlfriend would be present. The complainant said that the appellant became abusive and started yelling at her. She could not recall what he said to her, but only that he spoke “angry words” and that those angry words were directed at her. The telephone conversation ended with the complainant putting the phone down. She then joined a few friends in the back garden, one of whom was a Mrs Susan Coleiro who also gave evidence at the confirmation hearing. According to the complainant, a short time later the appellant, who appeared enraged, “burst” through a small entrance at the back of the garden and stormed towards her, shouting abuse. The complainant said she was “just shocked” at the sight of him. He taunted her telling her she had “no love” and attacking her over her involvement with a particular church group. She noticed that at this point one of the women who was in the back garden took hold of her child and ran. The complainant then saw the appellant disappear into the house before finally leaving. A short time later she saw her youngest daughter Daisy emerge from the house, visibly disturbed (she described her as being “white in the face”). Daisy was sobbing and claimed that she had been verbally abused, presumably by her father. Daisy did not give evidence. The complainant said that the appellant returned to the house on Easter Day bearing Easter eggs for her and her children. She said that thereafter his visits continued unabated, as though nothing had ever happened. In her words “he might breeze through for a minute or two and breeze out. It was every single day. I never knew when.”
In their evidence neither the appellant nor the independent witness Mrs Coleiro denied that the Good Friday incident had occurred in the manner described by the complainant. Indeed the appellant acknowledged that he was “furious” at the time of the incident, stating that this was because he believed that the complainant was intentionally pitting his children against his girlfriend, and because he was concerned about the effect that the complainant’s involvement in an ecclesiastical group known as the Hosannah Church was having upon the rest of the family, and in particular the children. Susan Coleiro, who was called by the appellant to give evidence also corroborated the complainant’s version of what had occurred, but added that notwithstanding the appellant’s obvious anger she did not perceive any threat to herself or anyone else at the time.
The second incident upon which the complainant appeared to base her case for a continuation of the restraining order occurred around Christmas time, 1997. It was not disputed that the appellant wished to take some of the children on a holiday to Queensland. The complainant’s evidence was that one evening the appellant came in through the front door and asserted “aggressively” that he was taking the family car because he wanted to take some of the older children to Queensland. The complainant said that she was shocked by this sudden demand. She wanted to talk to the children about the proposal. She described her reaction to his visit and conduct on this occasion in the following terms:
“A.... I think I just said ‘Can you just go, just leave’. I was in shock actually and I could barely remember and I was shaking as well, very intimidated.
Q.What was it about what he said or did that made you feel intimidated.
A...... Stand over tactics, he stood over me as I was on the couch. How can you put it into words, stand over tactics. I have authority and control and power over you and you will do as I tell you and that’s it. I go to jelly after that.
Q.That’s your interpretation.
A...... Yes that’s how I was made to feel. I have no rights and I would do as I was told.”
A little later in cross‑examination when talking about the same incident she said:
“I didn’t want to be there and I wasn’t listening and I just was sick of it, and I was extremely emotionally upset, extremely upset, extremely upset and angry and tearful and I don’t recall too much of it at all, I just wanted you (the appellant) gone.”
The appellant denied that he had intimidated the complainant during this incident as alleged by the complainant, asserting instead that he had behaved in an “easygoing” manner, without making any demands. The appellant’s evidence was that at the conclusion of the incident the complainant had told him that in future if he wanted to talk to her he had to make an appointment.
The third incident relied upon by the complainant, which took place shortly after the second, again involved the appellant wanting to take the children to Queensland. The complainant said in evidence that her eldest son had told her that he did not want to go. The appellant arrived at the house early one morning, at a time when the complainant was getting ready to go out. The complainant said that the appellant wanted to take the car and that he behaved unreasonably. She responded by telling him to “just go” and proceeded to retreat to the shower. When she got out of the shower he had gone. The appellant disagreed with the complainant’s account of this incident. He said that he had visited the house only for the purposes of making an appointment to speak to the complainant, for this was what she told him to do on the previous occasion.
When asked about whether there were any other times that she had indicated to the appellant that she wanted him to leave the premises the complainant replied as follows:
“A.... I would have waited. I couldn’t use the words. I just do walk out because he scared me, intimidated me. I couldn’t start something, cope with the thought of fighting and the children around. Because the children were always there, always on edge and feeling uncomfortable. They were very relieved when the restraint order was put in place. Usually I would just turn around and leave, sometimes leave the house, get in the car and go to get right away.”
In addition to the three incidents that I have described, a substantial amount of the evidence given at the confirmation hearing concerned the appropriateness of, and the complainant’s reaction to the appellant’s regular attendance at the house. According to the complainant, after the separation the appellant would visit the house on most days, sometimes on two or three occasions in one day, and would enter the house without knocking.
The appellant did not take issue with either assertion, saying that at all times he believed his behaviour was appropriate. He said that he attended at the house on such a regular basis because he wished to see his children, for whose welfare he was concerned, and because he had, as a co‑owner of the property, a continuing interest in its maintenance and upkeep. He denied that he had ever had “an intention of coming over to ruin the property”. There was no evidence that he had damaged the property. In fact, his undisputed evidence was that since leaving the family home he had performed maintenance and other work around the property. According to the appellant the only time he had behaved in a confrontational manner was during the incident that occurred on Good Friday of 1997. He also relied on the fact that his former wife had never told him that he was not to attend at the house. In cross‑examination he asked her why she had not done so if in fact she feared, and felt intimidated by his presence. She replied that she had refrained from asking him not to visit on account of the wishes of her children, who had asked her “not to rock the boat”.
In addition the appellant called two witnesses in support of his case, namely Susan Coleiro, (whose evidence I have touched upon previously where it has been relevant), and Kenneth Roulston. Susan Coleiro, formerly a mutual friend of the appellant and the complainant, said that she remained friends and stayed in touch with the complainant for some six months after the separation. She said that during that period the complainant had never once told her that she feared the appellant, and had never expressed any concerns regarding his attendance at the house. According to her the complainant had never appeared fearful of the appellant. She also described the Sleeman residence as an “open house” meaning that it was normal for visitors to enter the premises without knocking. Mrs Coleiro accepted however that since ceasing to be a friend of the complainant in May 1997 she had “not witnessed” the relationship between her and the appellant.
Kenneth Roulston, who had known the Sleemans for about eight years, said that in the two or three times that he had seen the appellant and complainant together in the family home after their separation he never witnessed the appellant being openly hostile or verbally abusive towards the complainant. Whilst refuting the suggestion that the complainant appeared intimidated on any of those occasions, he acknowledged that on “the last two occasions she was annoyed”.
Finally, the complainant was asked the following question about what she believed would happen if the restraining order were removed.
“Q.... Do you have any apprehension about what might occur if the restraining order wasn’t in place?
A.Yes. I think that he would just walk in and out.”

The decision of the magistrate

The magistrate gave his decision confirming the interim domestic violence restraining order on the on 22 May 1998. Referring to s4(2)(c)(iii) of the Act he found that the appellant had entered the property occupied by the complainant on two or more separate occasions. More particularly he found that the appellant had entered the property occupied by Mrs Sleeman on four days a week between the beginning of 1997 and about the 20th of January 1998. He further found on the balance of probabilities that the overall effect of his incessant visits to the family home was to reasonably arouse the complainant’s “apprehension”. This finding appears to have been based on a number of ancillary findings and observations made by the magistrate.
The magistrate accepted the evidence of the complainant that after a time the appellant’s visits to the house had become unwanted and intrusive and that the appellant was aware of this. He commented that the complainant is entitled to privacy in her chosen place of residence in circumstances where she has been separated from her husband for one and a half years. The magistrate found that the appellant behaved in an aggressive manner during the three incidents that I have outlined above, and further stated that the appellant “has conceded during cross examination that his wife may have been intimidated by his behaviour during [those] altercations”. The magistrate did not place great store on the evidence of Mrs Coleira and Mr Roulston so far as it conflicted with the evidence of the complainant because of their limited ability to observe the relationship between the appellant and the complainant.
The magistrate concluded by finding that the appellant would, unless restrained, continue to behave in the same offensive manner, and accordingly ordered that the interim order be confirmed. He also varied the order by consent, rendering it subject to any order of the Family Court and subject to any direction of the Family Court in respect of counselling.

Grounds of appeal and conclusions

The appellant’s grounds of appeal against the decision are as follows:

(1)... The decision of the Learned Magistrate should be set aside because he made errors of law and fact in finding that there were any or sufficient grounds to confirm the ex parte order imposing a Domestic Violence Restraining Order against the Appellant.

The Learned Special Magistrate erred in refusing to admit certain evidence and cross‑examination.

The Learned Magistrate erred in refusing to permit the Defendant to sum up at the end of the trial.

At the hearing for the confirmation of an interim domestic violence restraining order the defendant bears an evidential burden of showing cause why the order should not be confirmed. However the final onus rests on the complainant to prove, on the balance of probabilities, that the circumstances warrant a confirmation of the order: Schmidt v SA Police (1995) 182 LSJS 350. In other words the complainant must prove on the balance of probabilities that there continues to be a reasonable apprehension that the defendant may, unless restrained, commit domestic violence and that the making of the order is appropriate in the circumstances: s4(1) of the Act.
I turn to the first ground of appeal. Can it be said that the magistrate erred in finding that there was such a reasonable apprehension? Central to the magistrate’s decision to order a confirmation of the order was his finding that the appellant had in the past committed domestic violence and his related finding that there was nothing to suggest that he would not continue to do so unless restrained. I do not doubt that those findings, if properly made, would have justified the confirmation of the order. As Bollen J pointed out in Schmidt v SA Police (supra) at p356, when dealing with the question of reasonable apprehension one is required to look to the future in the light of past events. However the first ground of appeal requires consideration of whether the finding that the appellant had committed domestic violence in the past was justified. If it was not, then the fundamental basis for ordering a confirmation of the interim order would disappear. This is because the complainant’s alleged apprehension was based on an expectation that the appellant’s past conduct would continue. There was no suggestion that his behaviour would worsen or differ in any way. Therefore, if the appellant’s past conduct did not constitute domestic violence, there was no justification for the confirmation order. That is not to say that every case must be treated in this way. There may well be justification for a restraining order where there has been no domestic violence in the past, but a threat to commit violence in the future. However, that was not this case.
There was no evidence that the appellant had caused personal injury to, or damaged the property of, a member of his family. The only way in which he could be said to have committed domestic violence is in one of the ways set out in s4(2)(c) of the Act. Section 4(2)(c)(iii) of the Act provides that a defendant commits domestic violence if on two or more separate occasions the defendant “enters or interferes with property occupied by, or in the possession of, a family member... so as to reasonably arouse a family member’s apprehension or fear”. At the confirmation hearing it was not contested that the appellant had entered the property occupied by the complainant and the children of the marriage on two or more separate occasions. They were all family members for the purposes of the Act: see s3. Therefore what remained to be decided for the purposes of determining whether he had committed domestic violence was whether he had done so “so as to reasonably arouse a family member’s apprehension or fear”.

In this context, apprehension is the mental process of grasping or perceiving something; fear is a state of fearing something. In neither case is it immediately obvious from the Act what it is that the family member is to apprehend or fear. In the context of the Act it can hardly be apprehension or fear of an unwanted reconciliation or gift, or even apprehension or fear of embarrassment, annoyance or many other possible emotions, pleasant or unpleasant. The title of the Act and ordinary notions of domestic violence suggest that the object of the Act is to prevent possible personal injury or damage to property in the domestic setting. That is accommodated by paragraphs (a) and (b) of s4(2). In order to construe the Act as a whole, it seems to me that the apprehension or fear that must be aroused for the purpose of paragraph (c) of the same subsection can only be apprehension or fear of personal injury to, or damage to property of, a member of the defendant’s family.
“Personal injury” is not defined. Perhaps, it is not surprising that there is a dearth of authority as to precisely what that expression means, as most of the Acts in which the expression is used define it. See, for example, the wide definition of “injury” in the Criminal Law (Sentencing) Act 1988 s3 and in the Criminal Injuries Compensation Act 1978, s4, a definition to which I shall return.
Jordan CJ on behalf of the Full Court of the Supreme Court of New South Wales in Storey v McCawley (1948) 48 SR (NSW) 474 at 475 said:
“Personal injury, means, in my opinion, injury to his person, that is, to some part of his body”.
However, that was in the context of a claim under the New South Wales Workers Compensation Act 1926-1947 for damage occurring to a denture which was held not to come within that expression.
In Graham v Robinson [1992] 1 VR 278, Smith J had to consider the jurisdictional limit under the Victorian Magistrates’ Court Act 1971 set at $5,000 where the damages claimed consisted of or included damages in respect of “personal injury”. It was held that a plaintiff who claimed to have been injured in her reputation and character, who had suffered hurt and distress, had been brought into public scandal, hatred, odium, ridicule and contempt, all by reason of a defamatory publication, did not have a claim for damages in respect of personal injury. Smith J said at p281:
“In the absence of express authority, I have come to the conclusion that the expression ‘personal injury’ does not extend beyond physical injury and mental illness to include emotional hurt. I am encouraged to this view by the fact that the law has rejected grief or sorrow as a form of injury which can be relied on to mount a claim in negligence: Mount Isa Mines Ltd. v. Pusey (1970) 125 C.L.R. 383, at p.394 and Jaensch v. Coffey (1984) 155 C.L.R. 549, at p.587. It is true that damages are awarded for pain and suffering in the typical personal injury case. They are awarded, however, where pain and suffering flow from and are connected with physical or mental injury and may therefore be said to be damages ‘in respect of personal injury’. To interpret the legislation in this way would enable it to encompass the typical personal injury case and also the ‘nervous shock’ cases. It would address the object of the legislation to give litigants in typical personal injury cases the opportunity of seeking jury trial where the claim exceeds $5000.”
I have already referred to the Criminal Injuries Compensation Act 1978. “Injury” in that Act is defined as meaning “physical or mental injury, and includes pregnancy, mental shock and nervous shock”. There was a similar definition in the Criminal Injuries Compensation Act 1969-1974. When speaking of that definition, Bray CJ (with whom Jacobs and King JJ agreed) said in Battista v Cooper (1976) 14 SASR 225 at 227:
“I think the intention of the definition is to equate (with the possible exception of pregnancy) the sort of physical or mental injury for which compensation may be recovered under the Act with the sort of physical or mental injury for which damages may be recovered at common law. There is a familiar distinction between mere sorrow and grief which cause emotional distress and no more and something which causes in addition some sort of physical, mental or psychological trauma with consequential effect on physical or mental or psychological health. This distinction may ultimately, with the development of science, turn out to be an unreal one. It may be found that all emotional distress produces some effect on physical or mental health. For the present it is to be treated as a real distinction. As it was put by Lord Denning in Hinz v. Berry [1970] 2 Q.B. 40, at p.42:
‘In English law no damages are awarded for grief or sorrow caused by a person’s death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognizable psychiatric illness caused by the breach of duty by the defendant.’
Lord Pearson in the same case at p.44 said with reference to the plaintiff in that case: ‘There is a recognizable psychiatric illness.’ See also Benson v. Lee [1972] V.R. 879, at pp.880-881.”
The actual answer to the question reserved in that case was that a person was entitled to compensation under the Act “if the emotional upset results in actual injury to physical or mental health”. That decision was followed in Lamb v Miller (1981) 26 SASR 563, Delaney v Celon (1980) 24 SASR 443 and In Re Gollan (1979) 21 SASR 79 where the claimant suffered grief and concern, but not “an injury” within the meaning of the definition contained in the Act.
Assuming that “personal injury” encompasses both physical and mental injury, it seems reasonably clear on present authority that mere emotional distress, sorrow, anger, grief and like emotions without some consequential effect on physical or mental health cannot be classed as “personal injury”.
It follows that unless the relevant behaviour referred to in s4(2)(c) of the Act reasonably arouses a family member’s apprehension or fear of either personal injury in the sense which I have discussed or damage to property, then the defendant will not have committed domestic violence. There was no entitlement to a restraining order in this case unless it could be shown that a family member’s apprehension or fear of such things was reasonably aroused by the defendant’s conduct.
In my opinion the evidence did not establish that the complainant apprehended or feared that she would suffer either personal injury in the sense which I have described or damage to her property at the hands of the appellant. Although she testified that the appellant “scared” and “intimidated” her I do not believe that the evidence went as far as establishing that she actually feared that the appellant would cause her personal injury or damage to her property, and I do not believe that the appellant’s behaviour was capable of reasonably arousing such fears even assuming them to have been genuinely held. The relationship between the appellant and the complainant, even after the separation, was not a violent one. If it were, then a simple argument may have been sufficient to reasonably arouse in the complainant fear or apprehension of personal injury or damage to property, but that is not the case here.
The appellant had never threatened to injure the complainant or to damage her property, not even during the incident which took place on Good Friday. In relation to that incident the complainant could say no more than that she was “shocked” by the appellant’s behaviour and that he spoke “angry words” to her. She could not recall what those words were. Furthermore the witness Susan Coleiro stated in her evidence that she did not perceive any threat to herself or to anybody else during that incident. Finally, it emerges from the complainant’s own evidence that the appellant’s behaviour on the other, albeit frequent, occasions when he attended at the house was quite normal and not such as could reasonably arouse the complainant’s apprehension or fear. I refer to the following portion of the complainant’s evidence:
“Q.... Can you cite to me incidents and on which part of premises you found him.
A.He would be anywhere at all. He would just walk in and use the bathroom, anywhere he felt to be. Absolutely anywhere, walk in and out around the house. It was exactly as though he still lived there.
Q.... What did he do.
A.Go looking for the children, he would walk around, look at a few things, pick things up.
Q.... Did he approach you for conversation.
A.Sometimes.
Q.... And what subject, for instance can you recall him wanting to talk about.
A.Probably just chatting about the children, talking about things that had to be done, perhaps money, carrying on basically as though he is still my husband.
Q.... How long did that go on for.
A.Continually until I had had enough. It continued until I took the restraint order.”
That is not to say that the appellant’s visits were not intrusive or annoying, or that as time went on they did not cause emotional distress. The sight of the appellant may well have inspired in the complainant a fear that her husband would alienate her from her children, or a fear that an upsetting pattern of behaviour would continue, but in my opinion it was not such as to reasonably arouse the kind of fear or apprehension with which s4(2)(c) of the Act is concerned.
In the circumstances it is not necessary to consider the second limb of s4(1) of the Act, namely whether the making of the order is appropriate in the circumstances. I merely point out that that is a factor which will always have to be considered if the reasonable apprehension is made out, and that in that regard the matters referred to in s6 will need to be considered.
That is sufficient to dispose of the appeal. The appeal must be allowed and the restraining order set aside.

Other grounds of appeal

In the circumstances I do not propose to traverse in great detail the other grounds of appeal. The essence of the appellant’s complaints on ground 2 were that the magistrate admitted evidence of the complainant as to her beliefs, opinions and conclusions but denied the same liberty to the appellant’s witnesses; that he refused to allow the defendant to give evidence concerning events which had occurred during the marriage before the separation which were said to be relevant to any apprehension that the appellant would commit domestic violence; and that he refused to admit evidence from the appellant properly led to refute the complainant’s evidence. There is some substance to some of these complaints, particularly in respect of evidence of past events. I have already pointed out that the existence of reasonable apprehension or fear of relevant matters will require looking to the future in the light of past events. In a case like this past events are therefore important in making that assessment. In particular it is important to establish what the relevant conduct of the appellant was and what its effect was on the complainant and her children, both before and after separation. I have said enough to suggest that subjective emotions will not be particularly helpful. Whether they would actually cause personal injury in the sense I have described or damage to property will be of importance, together with evidence of the sorts of evidence which have precipitated any such injury or damage.
As to ground 3, it became a matter of dispute before me as to whether or not the appellant was permitted by the magistrate to address on the evidence. At the conclusion of the last witness the transcript records the following:
“HIS HONOUR:         Ms Wheatley, I think that I should suggest that you observe the convention and not address as the issues are starkly laid before me.
APP WHEATLEY:     So not address?
HIS HONOUR:          I don’t need to hear an address. It’s a convention not to, isn’t it, when the defendant is not represented?
APP WHEATLEY:     Yes.
ADJOURNED.”

Ms Wheatley was a police prosecutor who appeared for the complainant.

I received conflicting affidavits as to what then occurred from Ms Wheatley on the one hand and the appellant, Ms Coleiro, who was in court at the relevant time having just given evidence, and Ms Maier the person currently living with the appellant, who was also in court, on the other hand.
Pursuant to Rule 97.14 of the Supreme Court Rules 1987 I called for a report from the magistrate with particular reference to what took place after the evidence was completed and whether the appellant was given an opportunity to address the court. Whilst he recalled adjourning the court for about 15 minutes in order to prepare an outline of his ex tempore judgment, the magistrate concluded that he was left in a state of uncertainty as to whether he gave the defendant the opportunity to address him or not. He was not in a position to contradict what was said by any of the deponents.
Each of the deponents were cross‑examined on their affidavits, and whilst I believe that there has been no attempt on the part of the prosecutor to mislead the court and that she recalled what she could to the best of her ability, I prefer the evidence of the appellant and those who supported him for two reasons. The first is that the appellant appeared for himself before the magistrate and for both him and those who were with him at the time, the occasion is likely to be one which would stand out in their respective memories, it being one that few people encounter in their normal daily lives. The second is that it accords with what is recorded in the transcript or, perhaps, more significantly with what is not recorded in the transcript, in that there is no reference whatever to either party addressing. There is no other reason why I should disbelieve the appellant and his witnesses as they each gave their evidence in a forthright, detached and non‑partisan manner.
I find that the appellant was denied an opportunity to address the court at the conclusion of the evidence. Whatever convention the prosecutor might observe where a defendant is not represented by counsel or solicitor, there is no convention which denies the right of a self‑represented party to address the court at the conclusion of the evidence, and the appellant should have been afforded such an opportunity.
If grounds 2 and 3 were the only grounds on which the appeal succeeded it might warrant a rehearing or a remittal of the matter to the magistrate to complete the hearing. However, I need not decide which, if either, of those is appropriate because the decision must be set aside on other grounds.

[1998] SASC 6915

16 October 1998