Stone v Police - [2018] SASC 147

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STONE v POLICE
[2018] SASC 147
Judgment of The Honourable Justice Kelly
27 September 2018
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY - CONTRAVENTION AND SENTENCING
Following trial in the Magistrates Court the appellant was convicted of two counts of contravening an intervention order. Only the protected person and the appellant gave evidence at trial. The learned Magistrate recorded convictions and imposed a good behaviour bond for 12 months.
The appellant appeals the convictions on a number of grounds including that the Magistrate erred in admitting evidence of past discreditable conduct, the Magistrate applied the wrong onus of proof in relation to the charges, the evidence was insufficient to satisfy the charges beyond reasonable doubt, the Magistrate erred by placing undue reliance on the credibility of the protected person, the Magistrate impermissibly relied on evidence of a charge that was dismissed in finding the appellant guilty of the two charges he was convicted of and that the Magistrate erred in regulating the cross-examination of the appellant.
Held per Kelly J dismissing the appeal:
1) The evidence of past discreditable conduct complained of was properly admitted.
2) The Magistrate applied the proper onus of proof in finding the charges proven.
3) The evidence was sufficient to satisfy the convictions.
4) The Magistrate made proper assessments of the witnesses at trial as required and was entitled to be satisfied beyond reasonable doubt of the truth of the protected person as a result of his Honour’s assessment of that witness’s credibility.
5) The Magistrate did not rely on evidence relating to the dismissed charge in finding the appellant guilty of the two counts on which he was convicted.
6) The cross-examination of the appellant at trial did not go beyond the bounds of fair and proper cross-examination.
Evidence Act 1929 Sections 34P and 34R; Intervention Orders (Prevention of Abuse Act 2009 Section 31, referred to.
Roach v The Queen (2011) 242 CLR 610, applied.
R v MJJ; R v CJN (2013) 117 SASR 81; Stone v Police [2015] SASC 28; R v C, G [2013] 117 SASR 162; R v C, CA [2013] SASCFC 137, considered.

STONE v POLICE
[2018] SASC 147
Magistrates Appeal
KELLY J:

The appellant, Brenton Graham Stone, was convicted after trial of two counts of contravening a term of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 in the Adelaide Magistrates Court on 9 May 2018.
The appellant and the protected person the subject of the intervention order made on 5 September 2012 are neighbours in Oaklands Park. After a short trial, in which the Magistrate heard evidence from both the protected person and the appellant, he was convicted of two counts and placed on a bond to be of good behaviour for a period of 12 months.
The appellant now appeals the convictions. He has filed 14 grounds of appeal, however they can be distilled down to the following main complaints:
·Grounds 1 to 5
Five grounds relate to what the appellant claims was the wrongful admission of discreditable conduct evidence against him led by the prosecution without compliance with either s 34P or s 34R of the Evidence Act 1929. He complains that this failure caused prejudice to him.
·Grounds 6 and 14
The appellant complains that the evidence was insufficient to satisfy the Magistrate beyond reasonable doubt of his guilt on either charge.
·Ground 7
A complaint that the Magistrate applied the wrong onus of proof being satisfaction on the balance of probabilities only, rather than beyond reasonable doubt, as required.
· Ground 8
There is a further complaint that the Magistrate erred by placing undue reliance on the credibility of the protected person in comparison with the appellant’s credibility to support the findings of guilt.
·Grounds 9 and 10
A further complaint is that the Magistrate erred by relying on evidence relating to a charge his Honour dismissed to support the guilty findings in relation to the other two counts.
· Grounds 11, 12 and 13
Finally, there are numerous complaints about the cross-examination of the appellant and the failure of the Magistrate to control the cross-examination with the consequence that the appellant was in an unintentional emotional forced state which led to the Magistrate making adverse findings against him.
The facts are taken from the judgment of the Magistrate. It does not appear to be in dispute that both the protected person and the appellant had taken out restraining orders against each other. The intervention order made against the appellant was dated 5 September 2012 and contained 11 conditions. Relevant for the purposes of this appeal, the intervention order included the following four conditions:
Condition 1 – The defendant must not assault, threaten, harass or intimidate the protected person.
Condition 2 – The defendant must not follow or keep the protected person under surveillance.
Condition 3 – The defendant must not contact nor communicate with the protected person either directly or indirectly in any manner including phone, letter, cards, SMS messages, email, facsimile, Facebook, Skype and any other form of communication.
Condition 7 – The defendant must not start any motor vehicle on or adjacent to 6 Renfrey Street, Oaklands Park, SA between the hours of 12.00 am and 6.00 am on any day, except for the purpose of using that vehicle to travel to another location.
The protected person gave evidence and spoke of a history of difficulties that he had had with the appellant which led to him ultimately applying for an intervention order in 2012. That history included instances of the appellant starting up his car, which had a very noisy exhaust, and leaving it rumbling for a considerable period of time in the early hours of the morning, at one stage on an almost daily basis. The two men are next door neighbours.
The first count was particularised as an instance of the appellant starting his vehicle at 5.40 am on 10 November 2016.
The second count was particularised as an incident which occurred at about 6.00 am on 2 December 2016 after the protected person had taken an early morning walk and the defendant said to him, “Yes, it’s six o’clock”. The protected person then turned and walked away.
The final charge in respect of which the Magistrate ultimately acquitted the appellant was particularised as an incident which occurred on 9 December 2016 in the early hours of the morning at about 6.35 am. The protected person crossed the road to speak to another neighbour who lives on the opposite side of the road. At that point, the protected person observed the appellant pointing a camera at him and the other neighbour. The appellant stepped over the boundary line of his fence and continued to point his camera at the two men.
The prosecution particularised the basis of that count as a breach of condition 1 that the appellant not assault, threaten, harass or intimidate the protected person or, in the alternative, a breach of condition 2 that the appellant must not follow or keep the protected person under surveillance. Ultimately, although the Magistrate was satisfied that the conduct complained of did occur and he was satisfied beyond reasonable doubt that the appellant knew that the protected person was one of the two men that he was pointing his camera at, nevertheless based on his assessment of the definition of surveillance in condition 3 and the fact there was no evidence from the protected person that he had felt threatened, harassed or intimidated by the conduct at that time, his Honour acquitted the appellant.
The prosecution called the protected person who gave evidence and was cross-examined.
The appellant also gave evidence and was cross-examined. He spoke about problems he had been having in the street in the last 10 years which he attributed to the protected person and the other neighbour who lived opposite to the protected person moving in. He said the violence and aggression that was coming from both the protected person and workmen employed by him became so much that he had to take out his own intervention order in 2008. He also complained of a lot of harassment and intimidation from the other neighbour and his mates, who he referred to as “thugs”. He was cross-examined about the allegations that he made.
At the conclusion of the evidence counsel then acting for the appellant raised an issue of some of the evidence given by the protected person and whether it “has the potential to be inadmissible, discreditable conduct evidence”. Counsel referred particularly to some of the difficulties faced by the protected person which led to him taking out an intervention order such as the appellant leaving anonymous notes in the letterbox and causing difficulties with other neighbours in relation to taking parking spots outside his house. Counsel also complained that the protected person had alluded to the appellant as considering the other neighbour “a thug”.
With no objection from the prosecution, the Magistrate then made a ruling regarding the evidence given by the protected person concerning the circumstances as they existed at the time of the granting of the intervention order. After describing that evidence broadly as other conduct of the appellant which did not form the basis of the charges, he ruled that evidence as inadmissible in proof of the charges or as demonstrating any propensity to engage in such conduct as the charged act. It was only relevant for the purpose of “providing a general background to the relationship between the protected person and the [appellant]”.
In the Judgment delivered immediately thereafter, his Honour did not again refer to that evidence and ultimately convicted the appellant on two out of three counts, being counts 1 and 2.
I turn now to deal with the appeal grounds. The first five grounds concern the admission into evidence of what the appellant describes as “discreditable conduct evidence” which he claimed has caused prejudice to him.
Grounds relating to discreditable conduct evidence – Grounds 1 to 5
The appellant complained that the Magistrate admitted evidence of past dealings between the appellant and the protected person which amounted to discreditable conduct within the meaning of s.34P of the Evidence Act and that this caused him prejudice. The appellant did not identify the nature of the prejudice which he says he suffered by the admission of that evidence except to say that it had little or no relevance to the charges before the Court and that in respect of some of that evidence they were matters which had actually been litigated in two, possibly three, other Court matters involving himself and the protected person.
The appellant identified the evidence which he said amounted to alleged discreditable conduct evidence and which should not have been led as follows:
·The events which happened shortly after the two men first met, including an issue the appellant had with one of the tradesmen’s dog on the property.
·Anonymous letters received in the protected person’s letterbox which made allegations against him and his family.
·The appellant starting up cars at strange times and allowing them to run indefinitely.
·The appellant took exception on numerous occasions where tradesmen on the protected person’s property were parking.
·The first trial, which led to the intervention order against the appellant being made.
·The fact that many of these things happened on a daily basis and that the protected person gave evidence that he thought the appellant was trying to get him to move from the property.
·Evidence that during the week of Monday, 5 December 2016 the protected person was woken up early by noises virtually on a daily basis and gave evidence that “I’ve got Mr Stone on three other days that week”, the implication being that it was the appellant who woke him.
·The fact that the appellant does not like another neighbour and refers to him as a “thug”.
·The appellant berates and argues with anyone in a car pulling up in front of his property.
·The protected person has learned not to speak to the appellant, even on occasions when he agitates him.
The impugned evidence was led without any objection from counsel then acting for the appellant. If evidence of discreditable conduct is not the subject of any objection the Court need not consider its admissibility pursuant to s 34P of the Evidence Act.[1]
[1] R v C, G [2013] 117 SASR 162 at 177; R v C, CA [2013] SASCFC 137 per Kourakis CJ at para 54.
Consequently there was no obligation on the Magistrate to consider the objection until counsel for the defence raised the issue at the conclusion of the evidence in the following way.
MR STANLEY:    If I may raise an issue before my friend closes?
HIS HONOUR:     Go ahead, yes.
MR STANLEY:    It’s in relation to some of the evidence of Mr Tamblyn and whether it has the potential to be inadmissible discreditable conduct evidence, particularly in relation at the start of his evidence he alluded to my client leaving anonymous notes in the letterbox and him having difficulties with other neighbours in relation to them taking parking spots. He also alluded to my client considering the other neighbour a thug. Those issues, I say, don’t go towards the charges at hand and as such are inadmissible.
HIS HONOUR:     Well, how do we deal with that when the prosecutor’s closed his case, you have called your evidence and you’re putting that submission at this stage?
MR STANLEY:    If I may inquire as to my friend’s position on that, that may dictate how it’s dealt with.
APP MANCHIP: I’ll be in your Honour’s hands on it. I don’t have a view either way other than the court’s entitled to know the background of the circumstances res gestae of the intervention order itself. So my position is that the court has to go some way to knowing the background of the circumstances in order to appreciate these circumstances themselves and if your Honour can order himself to disqualify that information that’s been heard earlier in the case then I have no issues with that because I don’t think it was particularly to the prosecution’s case.
HIS HONOUR:     Thank you. How does that affect what you wish to do?
MR STANLEY:    That would lead me to ask your Honour to direct your Honour to discount that evidence as inadmissible.
Immediately thereafter, the Magistrate gave the following ruling:
HIS HONOUR: At the close of all evidence it is submitted on behalf of the defendant that the evidence given by the protected person, Mr Tamblyn, early on his evidence as to the circumstances as they existed at the time of the granting of the intervention order is inadmissible. That evidence was very broadly of conduct by the defendant alleged to have taken place and isn’t conduct that forms of the basis of any charges. In my view evidence of the conduct that I’ve just described of the defendant other than in respect of charged acts is only relevant for the purposes of providing a general background to the relationship between the protected person and the defendant. It is not in any way admissible as proving the charge or as demonstrating any propensity to undertake conduct such as the charged acts. Therefore, in my view, it’s admissible only for the purpose that I’ve just articulated.
Section 34P and 34R of the Evidence Act relevantly state:
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)    cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)    is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
When counsel for the appellant did object to the impugned evidence the Magistrate was then obliged to have regard to s.34P in order to assess its admissibility. Given that the prosecution did not ask that the evidence led be used for any propensity purpose, the admissibility of the evidence was to be assessed on the basis of s.34P(2)(a) of the Evidence Act.
If the evidence was admissible then the Magistrate was obliged to give himself a direction in accordance with the matters set out in s.34R(1) of the Evidence Act.
The appellant complains about the failure of the Magistrate to properly consider the admissibility of the evidence and about the failure to direct adequately in terms of s.34R(1) of the Evidence Act. It can be seen from the ruling made by the Magistrate at the conclusion of the evidence after counsel for the appellant raised the issue that in fact the Magistrate did rule as to the admissibility of the evidence, albeit without any particularisation of that evidence, except to say it was “very broadly of conduct by the [appellant] alleged to have taken place which does not form the basis of any charges”.
In my view the evidence was properly admitted and there is no miscarriage of justice as a consequence of its admission.
Evidence from the protected person as to the history of the relationship between the two men was relevant. It was relevant in a number of specific ways. First, the allegation that the appellant spoke to the protected person in the manner alleged in the events which gave rise to count 2, may have seemed inherently unlikely without any evidence of the background between the two men and the particular concerns and issues that lay between them. Second, the history of the two men and the intensity of the attention each one paid to the other went to the likelihood of the appellant not recognising the protected person on the occasion when he pointed his camera at the protected person as he was speaking with the neighbour. Third, without some evidence of the history of the hostility between the two men, it might well have seemed inherently implausible that the protected person would be paying such close attention to the appellant taking notes, including the diary, sufficient to be able to give accurate evidence as to when and where things happened.

Finally, without at least some evidence of the history of their relationship the protected person’s close observation of the appellant’s activities would have appeared to be oppressive indeed to a point which might otherwise have damaged his credibility.
In my view, this is precisely the kind of relationship evidence which the High Court referred to in Roach v The Queen[2] which “… allowed the prosecution, and the complainant to meet a question which would naturally arise in the minds of the [finder of fact].”
[2] (2011) 242 CLR 610 at 624.
This kind of discreditable conduct evidence, as Kourakis CJ pointed out in R v MJJ; R v CJN[3] which has a permissible use, other than by way of demonstrating a particular propensity, need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect.
[3] (2013) 117 SASR 81 at 89.
Here the conduct complained of was not seriously discreditable on any view of the matter. Discreditable conduct can range from unpleasant unsocial conduct, to minor breaches of the law to serious breaches of the law. The prejudice that potentially arises from evidence of serious criminal conduct might be severe compared to the prejudice that may arise potentially from the evidence of unpleasant unsociable behaviour.
In this case the evidence of discreditable conduct was mostly innocuous and involved unpleasant behaviour on the part of both men and conduct which was at most a breach of environmental noise regulations or conduct which was only unlawful because of the intervention order. Some of the evidence the appellant now complains of, for example the evidence that the appellant considered certain people in the street to be thugs, formed part of his defence case.
The conduct admitted in this case is to be distinguished from the conduct referred to in Stone v Police[4] on which the appellant relied. In that matter, which also involved allegations against the appellant that he had breached the same intervention order, the prosecutor had led quite extensive evidence of prior conduct of the appellant that involved allegations of criminal damage, threats and assaults. In addition, much of this evidence was led over the objection of the appellant who was unrepresented. In those circumstances it is hardly surprising that the Judge on appeal ruled that the evidence should not have been led and led to the convictions being quashed. This is not such a case. In my view, the evidence was plainly admissible. Indeed, had at least some of the background not been led, albeit briefly which it was, the evidence of the protected person at trial would have been inherently improbable and possibly unintelligible.
[4] [2015] SASC 28.
The objection came at the conclusion of the evidence and in those circumstances I consider the failure of the prosecution to give notice of its intention to lead that evidence could be excused. Certainly no prejudice has resulted. Insofar as there might have been any tendency to cause prejudice, the learned Magistrate did direct himself as to the use which may and may not be made of the challenged evidence. Those directions were brief and to the point. However, in my view they sufficiently identified the purpose for which the evidence was not to be used and the only purpose for which the Magistrate did use it. In the circumstances that was all which was required and they complied with s.34R.
This ground of appeal is dismissed.
I turn now to consider those grounds of appeal complaining that the evidence was insufficient to support the findings of guilt against him.
Grounds relating to insufficiency of evidence – Grounds 6 and 14
The appellant’s complaint in these two grounds is in essence that the finding of guilt against him was in error based on insufficient uncorroborated and tenuous evidence.
On any view of the matter this was a short trial where the issues of fact were neither complicated nor difficult. The trial commenced at about 11.00 am and after hearing both counsel address in the afternoon the Magistrate delivered an ex tempore judgment at 3.30 pm on the same day.
After leading evidence from the protected person in brief as to the relevant background which led to the taking out of the intervention order, the prosecutor then led evidence in support of each count. The finding of guilt in respect of count 1 was supported by proof of the terms of the intervention order. That evidence was not in dispute. The protected person gave evidence and was cross-examined that at about 5.40 am on 10 November 2016 the appellant started his vehicle in his driveway, reversed it out of the driveway, parked on the street and returned to his house.
The Magistrate accepted that evidence. The conduct was in breach of condition number 7 of the intervention order which provided that the appellant must not start any motor vehicle between the hours of 12.00 am to 6.00 am on any day except for the purpose of using that vehicle to travel to another location.
The finding of guilt in relation to count 2 was supported by the same evidence of the intervention order and its terms and by evidence from the protected person. The Magistrate accepted the evidence of the protected person that at about 6.00 am on 2 December 2016 the protected person was heading out for his morning walk when he heard the appellant’s car and the appellant shouted at him, “Yes, it’s six o’clock”. That conduct was in breach of condition 3 of the intervention order providing that “the appellant must not contact or communicate with the protected person either directly or in any way.”
Although it was a case where there were only two witnesses, the appellant and the protected person, there was no requirement for corroboration before the Magistrate was entitled to accept the evidence of the protected person. In the event that the Magistrate was satisfied that the protected person gave truthful and accurate evidence as to both occasions, there was plainly evidence sufficient to support the convictions on counts 1 and 2.
I dismiss this ground of appeal.
The next ground of appeal relates to the appellant’s complaint that the Magistrate applied the wrong onus of proof.
Ground relating to standard of proof – Ground 7
The appellant complains that the Magistrate based his guilty findings on the balance of probability rather than on the criminal onus of beyond reasonable doubt. There is nothing in the conduct of the trial or in the reasons of the Magistrate to suggest that his Honour applied a standard of proof other than satisfaction beyond reasonable doubt. He commenced his reasons by reminding himself of the criminal onus and standard of proof and correctly referred to that standard when he made each of the central factual findings and again when he set out his findings of guilt as follows:
[33]    Turning to the allegations, in respect of count 1, I am satisfied beyond a reasonable doubt that at 5.40 am or thereabouts, the defendant started his vehicle in the driveway and that after hearing this, Mr Tamblin went outside and saw the defendant reversing his vehicle out of the driveway, then park it in front of his house and returned inside.
[34]    I am satisfied beyond reasonable doubt that in respect of count 2, at about 6.00 am as Mr Tamblin was heading off on his morning walk, he heard a vehicle reversing out of the defendant’s driveway and after checking that the time was after 6.00 am heard the defendant shout at him “Yes, it’s six o’clock, Tamblyn”.
[36]    So far as the charges are concerned, I am satisfied beyond a reasonable doubt that from my findings, count 1 establishes a breach of condition 7 of the intervention order and I find that charge proven.
[37]    In respect of count 2, I am satisfied on the basis of the findings that condition 3 of the intervention order not to contact or communicate directly or indirectly is established and I find that charge proven.
There is no merit in this ground of appeal.
I turn now to ground 8 which is a complaint that the Magistrate erred in finding the appellant guilty “relying solely on his perception of the defendant’s credibility in comparison to Tamblyn’s credibility”.
Ground 8 – The Magistrate relied unduly on an adverse credibility finding to prove the appellant’s guilt
There were only two witnesses in the trial and it was his Honour’s duty to make assessments of the credibility of each of those witnesses before reaching any factual conclusions.
The Magistrate assessed the protected person as a careful and forthright witness and accepted that he gave truthful and accurate evidence. The Magistrate’s assessment of the appellant was one “as a confident witness but one who was prone to exaggeration and reconstruction”. The Magistrate made it plain that where the accounts of the two men differed, his Honour accepted the protected person’s evidence and not the evidence of the appellant’s evidence.
His Honour then made intermediate findings of fact based on all of the evidence and applied the law to the facts as he found them. In that process, the appellant was acquitted in relation to count 4 even though the Magistrate found the events giving rise to count 4 were proved beyond reasonable doubt.
The Judge’s reasons are clear and he was entitled to be satisfied beyond reasonable doubt of the truth of the protected person as a result of his assessment of that witness’ credibility. There is nothing improper in that process.
This ground of appeal is dismissed.
I turn now to the two grounds which complain that the Magistrate impermissibly relied on evidence led in relation to the count which he did not find proved, in order to find the appellant guilty of counts 1 and 2.
Grounds 9 and 10 – Evidence impermissibly relied on in support of dismissed count 4
The appellant complains under these grounds that the Magistrate should have prevented or curtailed cross-examination in relation to count 4 as soon as he had earlier realised that no offence was committed.
This count arose out of events which occurred on 9 December 2016 after the protected person had returned from his early morning walk and stood speaking on the opposite side of the road to another neighbour, Mr Sutton.
The Magistrate’s finding was as follows:
[35] In respect of count 4, I am satisfied again beyond a reasonable doubt, that at about 6.35 am on 9 December 2016, when returning from his morning walk Mr Tamblin crossed to the opposite side of the road to speak to his neighbour Mr Sutton, at which time the defendant was pointing a camera at the two of the two of them. He continued doing this as he stepped over the fence and walked closer to the two men, being within about six or seven metres of them. I am satisfied again beyond reasonable doubt that the defendant knew Mr Tamblin was one of the two men the camera was being pointed at.
[36] In respect of count 4, I raised in the course of submissions that there was no evidence that Mr Tamblin felt threatened, harassed or intimidated by the conduct. Consequently, I am not satisfied that there is a breach of condition 1 of the intervention order. Condition 2 of the intervention order is that the defendant must not follow or keep the protected person under surveillance. It is not suggested that he was following Mr Tamblin. The word ‘surveillance’ is not one which is actually used in the legislation. The Australian Concise Oxford Dictionary describes it as ‘keeping a person, a suspect, under close observation’. Having considered the conduct that I have found established, I take the view that it is not established beyond a reasonable doubt that that conduct constitutes surveillance, therefore I dismiss count 4.
It is true that the Magistrate based his assessment of the appellant’s credibility in part on answers which the appellant gave to questions concerning the events which were the subject of count 4. At the stage when the appellant was giving evidence count 4 was still before the Court and the appellant was properly cross-examined about those events. Counsel then acting for the appellant did not take objection to cross-examination of the appellant in relation to those events and nor would have he been entitled to do so.
The appellant was acquitted of count 4 after conclusion of the evidence and after the Magistrate had given consideration to all of the evidence.
It is plain from the whole of the Magistrate’s reasons that his Honour did not rely on any of the events of 9 December 2016 to which count 4 related in order to find the appellant guilty of the first two counts on the complaint which related to other events.
There was no error of the kind alleged by the appellant in relation to the Magistrate’s treatment of the evidence given in relation to the dismissed count. These grounds of appeal must be dismissed.
I turn now to the next three grounds of appeal, grounds 11, 12 and 13, which are in summary complaints that the Magistrate lost control of the Courtroom in allowing cross-examination of the appellant at large which was both unfair and irrelevant.
Grounds 11, 12 and 13 – Alleged errors in failing to control cross-examination of the appellant
The appellant’s complaint under this section appears to be that if the cross-examination had been properly controlled he would not have given answers which reflected an anxious emotional state and he would not have been the subject of any adverse assessment of his credibility as a consequence. Ground 11 appears to be a complaint that cross-examination of the appellant was conducted in an improper manner with the prosecutor questioning the appellant by continual sarcastic badgering and by putting “irrelevant and ludicrous guessing game type hypotheses” to the appellant which no reasonable person could answer.
The first matter to note is that the appellant was represented at the trial. From time to time his counsel objected to questions which were put in cross-examination and from time to time those objections were allowed. I have read the transcript of all the evidence. The cross-examination of the appellant was properly directed to testing the veracity of his account of the events which were the subject of the charges. In my view it did not go beyond the bounds of fair and proper cross-examination.
It is not apparent from the transcript that the questions of the prosecutor in cross-examination were irrelevant, badgering or sarcastic as suggested.
It is unsurprising that the Magistrate concluded on the basis of the appellant’s evidence that he was prone to exaggeration, reconstruction and when put under pressure becoming argumentative. There were elements of argumentativeness, defensiveness and aggression displayed by the appellant when cross examined about all of the events. That the appellant’s credibility was adversely affected by his tendency to exaggerate and reconstruct was a finding which was plainly open to the Magistrate on the basis of his evidence.
These grounds are not substantiated.
Conclusion
After finding the evidence of the protected person to be truthful and accurate the Magistrate then made findings of satisfaction beyond reasonable doubt in relation to counts 1 and 2. Although the only evidence in support of the charges came from the protected person and from the appellant, that is not necessarily unusual. Subject to the protected person’s evidence being found truthful and accurate it was plainly open for the Magistrate to conclude beyond reasonable doubt the guilt of the appellant on both counts 1 and 2.
The appeal is dismissed.