USMANI v Police - [2018] SASC 36

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
USMANI v POLICE
[2018] SASC 36
Judgment of The Honourable Justice Parker
23 March 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - POWERS AND DUTIES IN RESPECT OF UNREPRESENTED LITIGANTS
Appeal against conviction.
A Magistrate found the appellant guilty of seven counts of assault contrary to s 20 of the Criminal Law Consolidation Act 1935 (SA). The appellant was alleged to have assaulted three different passengers in his taxi.
The appellant was unrepresented at trial and at the appeal. He contends that the complainants consented to his actions and that his actions were within the limits of normal social interaction. He also contends that the trial before the Magistrate was unfair.
Held per Parker J, dismissing the appeal:
1. There was no error in the Magistrate’s reasons. Passengers do not expect to be kissed, hugged, caressed or stroked by a taxi driver. That is even more obvious when a young woman is travelling alone at night, as was each complainant. The factual findings made by the Magistrate were not glaringly improbable or contrary to compelling inferences.
2. The trial was not unfair. The Magistrate took all necessary steps to ensure that the appellant understood the trial process and assisted the appellant where appropriate.
Criminal Law Consolidation Act 1935 (SA) s 20; Evidence Act 1929 (SA) s 25, referred to.
Ardalich v Police [2007] SASC 196; Zanker v Kupsch [2014] SASCFC 13; Fox v Percy (2003) 214 CLR 118, considered.

USMANI v POLICE
[2018] SASC 36
Magistrates Appeal: Criminal

PARKER J: This is an appeal against conviction in the Magistrates Court on seven counts of assault contrary to s 20 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The Magistrate found no case to answer in respect of one count of indecent assault and made a not guilty finding on the other count. In respect of the latter count the Magistrate found the appellant guilty of assault on an alternative basis.[1]
[1] That count is included amongst the seven counts to which I have referred.
For the reasons that follow I will dismiss the appeal.
Naming of parties
The prosecution alleged that two of the three complainants, namely SM and KJ, had been indecently assaulted by the appellant. As SM and KJ were alleged victims of a sexual offence, s 71A(4) of the Evidence Act 1929 (SA) provides that their identity cannot be published without their consent or an order of the Court. They have not consented and no application has been made for an order to permit publication. While the identity of the third complainant, JM, is not protected by s 71A(4), I consider it appropriate to exercise the inherent power of the Court not to identify her by name in this judgment. I have adopted that course so that JM is treated consistently with SM and KJ. The events involving JM are not materially different to those which affected the other two complainants. The appellant is not affected by the decision not to identify JM. However, upon the appellant’s conviction, the prohibition under s 71A upon publication of his identity ceased to operate.[2]
[2] See paragraph (b) of the definition of “relevant date” in s 71A(5) of the Evidence Act and s 71A(2). I note that the appellant has complained in his submissions about the failure to name him in the cause list.
Background
The appellant is aged 52 years and was born in Pakistan. While serving in the Pakistan Army he completed university studies and qualified as a civil engineer. After leaving the army in the late 1990s he moved to Dubai where he worked as a civil engineer. The appellant has four children. Due to the limited range of university courses available in Dubai for his children to study, the appellant migrated to Australia in 2012. His two daughters are respectively undertaking university studies in genetic engineering (at honours level) and medicine. His two sons are at school. The appellant has been unable to work as a civil engineer in Australia and has worked in service stations and as a taxi driver. Each of the offences of which the appellant has been convicted occurred while he was working as a taxi driver.
Section 20 of the CLCA
Section 20 of the CLCA provides as follow:
20—Assault
(1)     A person commits an assault if the person, without the consent of another person (the victim)—
(a)intentionally applies force (directly or indirectly) to the victim; or
(b)intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
(c)threatens (by words or conduct) to apply force (directly or believe that—
(i)the person who makes the threat is in a position to carry out the threat and intends to do so; or
(ii)there is a real possibility that the person will carry out the threat; or
(d) does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or
(e)     accosts or impedes another in a threatening manner.
(2)     However—
(a) conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and
(b) conduct that is justified or excused by law cannot amount to an assault.
(3)     A person who commits an assault is guilty of an offence.
Maximum penalty:
(a)      for a basic offence—imprisonment for 2 years;
(b) for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 3 years;
(c) for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 4 years.
(4)     A person who commits an assault that causes harm to another is guilty of an offence.
Maximum penalty:
(a)      for a basic offence—imprisonment for 3 years;
(b) for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 4 years;
(c) for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 5 years.
Note—
This offence replaces section 40 (assault occasioning actual bodily harm) as in force prior to the commencement of this subsection and, consequently, see Coulter v The Queen (1988) 164 CLR 350.
The offences
The details of the offences are as follows.
Count 1
Count 1 alleged that the appellant assaulted SM on 7 June 2015 during a taxi trip from a North Adelaide hotel to her home at Unley. At various points during the journey the appellant kissed the hand of SM, stroked her hair, right shoulder and back. This conduct, and that alleged in relation to each of the other counts, was clearly shown on the closed circuit television (‘CCTV’) surveillance equipment that was operating in the taxi.
Count 2
Count 2 alleged that the appellant indecently assaulted SM by kissing her and placing his tongue in her mouth. This count was dismissed by the Magistrate as she was not satisfied that the appellant used his tongue. However, he was convicted in the alternative of assault.
Counts 3 and 4
The facts relating to counts 3 and 4 are that on 12 June 2015, JM travelled in the defendant’s taxi from her home at Unley to a city restaurant. Count 3 alleged that during the course of the journey the appellant assaulted JM by touching her face and patting her head.
Count 4 alleged that the appellant assaulted JM during the course of the journey by putting his arm around JM’s neck and trying to kiss her.
Counts 5, 6, 7 and 8
Each of counts 5, 6 and 7 allege that on 12 June 2015 the appellant assaulted KJ during the course of a short taxi journey from the Adelaide Convention Centre to the London Tavern on North Terrace. Count 5 alleged that the appellant touched KJ on her left arm and thigh while saying “you’re beautiful” before taking hold of her left hand and pulling her left arm towards him, apparently to inspect her arm that is heavily tattooed in a “sleeve” fashion. Count 6 alleged that the appellant assaulted KJ about 1.5 minutes after the events relevant to count 5 by touching her hair and chin. Count 7 alleged that 30 seconds after the events relevant to count 6 the appellant assaulted KJ by placing his hand on her hand or wrist.
Count 8 alleged that the appellant indecently assaulted KJ by brushing her breast and buttock after she alighted from the taxi. The Magistrate found that there was no case to answer on this count.
The complainants’ evidence
The evidence of SM
SM was aged 32 years at the relevant time. She recalled feeling “merry” or “tipsy” after consuming alcohol when she engaged the appellant’s taxi outside a hotel. She spoke willingly to the appellant, shook his hand and moved to the front seat at his suggestion so they could talk more easily. He told her his name and that he came from Pakistan. She became uncomfortable when he told her that he thought she was beautiful. She decided to telephone her friend who was staying at her house to state her location and to ensure that her friend was waiting when she arrived home. She wanted the appellant to be aware that someone was waiting for her. While SM was talking to her friend on the phone, the appellant brought the taxi to the roadside and almost to a stop on Unley Road as it passes through the South Parklands. She was scared and felt panicky as she did not understand why the taxi had slowed. She thought of running away but there was nowhere to go and the Parklands were dark. She motioned to the appellant to drive on, which he did. He pulled back over a second time. At this stage SM was even more concerned and panicked. The appellant then pulled back out and turned onto Greenhill Road. When they arrived at her home and while she was providing her credit card the appellant kissed her on the mouth. She instantly pulled away and left the taxi. She described the kiss as forceful. As her friend had left the front gate ajar she was able to quickly move through and lock the gate behind her. As she approached her house SM saw that the appellant had got out of the taxi and was trying to follow her into the house. Once inside her home she tried to lodge a complaint with what she described as the “taxi bureau” but her call was not answered. She could not sleep as she was crying hysterically. She then reported the incident to the police. Within a few hours the police attended at her home and took a statement. SM admitted in cross-examination that at the request of the appellant she may have kissed him on the cheek early in the journey. However, she has no memory of that.
The evidence of JM
At the relevant time JM was aged 24 years. After telling the appellant where to take her he touched the side of her face and expressed approval of her lipstick. The appellant put out his hand to shake hers and she responded. This made her feel uncomfortable. She took her mobile telephone from her handbag as a safety precaution. When asked by the appellant what she was doing that evening she said that she was having dinner with her boyfriend and another couple. He did not appear to understand what she meant by a “double date”. At this point the conversation was jovial, jokey or humorous which caused JM to smile and laugh. When the taxi stopped in traffic the appellant asked JM for a hug before leaning across, forcefully grabbing her face and attempting to kiss her. Initially after being asked for a hug she instinctively started to lean forward before having second thoughts and pulling away. At this point she exclaimed “whoa, whoa, whoa”. JM remained in the taxi in a state of “pure fear and anxiety”. When the taxi stopped again in traffic the appellant leant towards her and asked for another hug to which she said “no”. Soon after JM asked the appellant to stop the taxi and she left the vehicle after paying her fare. She complained to police the next morning.
The evidence of KJ
KJ was aged 28 years at the time of the relevant events. She stated that at about 7:30 pm on 12 June 2015 she approached the appellant’s taxi near the Adelaide Railway Station. She wanted to go to the London Tavern and did not realise that it was located nearby. While asking the appellant whether he could take her to that location he stated “yes I was hoping this beautiful woman was getting into my taxi”. She sat in the front passenger seat. The appellant soon touched her right leg, stroked her hair and told her she was beautiful. He then pulled her left arm across her body to inspect her tattoos.
KJ was not alarmed by this conduct until she noticed that the appellant appeared to be looking at her cleavage. She felt uncomfortable and pretended to use her telephone. After she paid the fare and left the taxi she noticed that the appellant had left the vehicle, gone around to her side and placed his body in front of her door. This prevented her from walking away. The appellant asked her for a hug, she patted him on the back or hugged him[3] and tried to move. The conduct of the appellant at this point was the subject of count 8 which alleged that the appellant had brushed the buttock and breast of KJ. The Magistrate found that count not to be proven. After running from the scene KJ hid nearby until she saw the friend whom she was to meet. KJ then immediately went with her friend to the Hindley Street Police Station and reported the matter.
[3] She used both terms in her evidence.
The appellant’s evidence
The appellant was not legally represented at trial except in relation to the cross-examination of the victims SM, KM and KJ. Because it was alleged that the appellant had indecently assaulted SM and KJ, he was prohibited by s 13B of the Evidence Act from cross-examining them. For that reason Mr Phillip Crowe of the Legal Services Commission conducted the cross‑examination of SM and KJ. While s 13B did not apply in the case of JM, Mr Crowe also cross-examined her.
The appellant was led through his evidence-in-chief by the Magistrate and extensively cross-examined by the police prosecutor. The appellant conceded that his conduct was unprofessional and inappropriate and contrary to the guidelines issued to taxi drivers that advise how to avoid sexual harassment allegations. However, he denied that he had committed assault. He stated that each of the victims had consented to his actions. He said that he was a good judge of character and did not need to know another person for a long time to determine whether they would welcome interaction with him. In substance he also contended that his behaviour towards the complainants was within the limits of what would generally be accepted in the community as normal incidents of social interaction or community life.[4] He said “I didn’t do anything vulgar there I didn’t touch any private parts although touching hair or face”. The appellant sought to explain the conduct depicted in the CCTV footage on the basis of consent and ordinary social interaction. He contended that if there had been an audio recording in his taxi that would have established that the complainants were laughing and enjoying his attention and his jokes.
[4] See, CLCA, s 20(2)(a).
The appellant’s submissions in the Magistrates Court
The appellant made written submissions extending over 13 pages. The submissions covered a wide range of issues, some of which are not relevant to the proceedings in the Magistrates Court or this appeal. He undertook a detailed analysis of s 20 of the CLCA and applied those provisions to the facts of his case. He also provided a detailed analysis of the evidence relevant to each complainant and each count. I will refer to this material when I consider the appellant’s submissions on the appeal.
The Magistrate’s reasons
The Magistrate administered the appropriate warnings to herself. Her Honour considered a number of authorities dealing with the elements of the offences of assault and indecent assault.
The Magistrate accepted the complainants as witnesses of truth. Her Honour found that their failure to complain to the appellant about his actions did not lessen their credibility. There were many reasons, such as age, discomfort with conflict or fear, to explain why women do not protest in situations where they consider they are being taken advantage of or assaulted. The complainants were not willing participants. That was confirmed by their contemporaneous complaints to police.
While SM did not recall that she had allowed the appellant to kiss her on the cheek at the start of the journey, this kiss must be seen as consensual as it raised no concern with SM. Her Honour rejected the appellant’s assertion that he could not remember slowing down or stopping on Unley Road in the South Parklands while taking SM home. He conceded in cross-examination that the CCTV footage showed that he had slowed to a speed of six kilometres per hour but could not remember why he had done so. He suggested that he may have slowed down to obtain the consent of SM for a kiss or hug and when she did not agree he drove on.
The Magistrate found the evidence of the appellant to be self-serving. He asserted that he was a good judge of human behaviour, had experience of all sorts of women riding in his taxi and was right to assume from the reactions of the complainants that they welcomed his touches, kisses and hugs. The Magistrate rejected that explanation. Her Honour stated any person of the appellant’s age should assume that women aged in their 20s and 30s would be disinterested in random physical contact with an unknown taxi driver who was old enough to be their father. Moreover, the short journeys undertaken by JM and KJ did not allow sufficient time for them to form any rapport with the driver.
The Magistrate found that it was not reasonable or logical for the appellant to assume that because SM had allowed him to kiss and hug her when she first entered his taxi he could expect to get what he described as a “reward” later on. It was contradictory for him to assert that hugging passengers was a friendly, affectionate act and then also to maintain that this conduct was a first step that may lead to a “reward”. Her Honour rejected the appellant’s assertion that the lack of verbal complaint from his passengers was sufficient for him to assume that they have consented to physical conduct. There was no proper basis for him to assume that if a passenger laughed at his jokes or spoke to him there was a likelihood that kissing and hugging would be welcomed. Her Honour observed that the appellant is an intelligent and well educated man and had been trained as a taxi driver to maintain appropriate boundaries with passengers. Nevertheless, he asserted that these three young women would be interested in cuddling, stroking, kissing or caressing an unknown taxi driver. Her Honour rejected that assertion as implausible and a reconstruction to justify his inappropriate behaviour. The Magistrate stated that the appellant was opportunistic, predatory and hoping to engage with women he considered attractive to relieve the boredom and frustration he felt in his long hours of work as a taxi driver. He had sacrificed his own career for the good of his family and was not happy that the sacrifice meant that he was required to work in occupations that he found tedious and boring. He used passengers for his own amusement. While he professed to know whether a passenger welcomed his jokes and conversation, that was foolish as his only guideline was not to persist in conversation with the passenger if they ignored him but to continue if there was no complaint. He failed to make allowance for the likelihood that politeness may cause some passengers to converse because they did not wish to appear to be rude.

The Magistrate found that it was reasonable to accept that the complainants were alarmed by their contact with the appellant and would have been worried that he may wish to go further. Her Honour found that the “reward” that was anticipated by the appellant had not been proven by the prosecution to have a sexual connotation. It had not been proven that the appellant’s conduct was accompanied by an intention to obtain sexual gratification. His wish to stroke, touch hair, kiss and cuddle did not constitute indecency for the purposes of s 56(1) of the CLCA.
The Magistrate found that the appellant hid behind a supposed belief system that he had created to flatter himself into a false belief that young attractive women would be amused by his conversation and welcome physical contact. He had created a barrier to separate himself from the consequences of his actions and doggedly maintained that he did not engage in physical contact with women who did not invite attention or who did not respond. He contended that as he did not have a malicious intent and because he was never forceful or compelled passengers to have physical contact, he had not committed assault. In reaching that conclusion he had ignored his training as a taxi driver and constructed an unreasonable belief that lack of complaint meant acceptance.
The Magistrate found that the appellant knew that the complainants might reasonably object to contact. Her Honour also found that the appellant knew that female passengers would not expect to be touched, stroked, hugged or kissed by an unknown taxi driver. His conduct went well beyond “conduct that lies within the limits of what would be generally be accepted within the community as a normal incident of social interaction or community life”. Inappropriate and unwanted touching, hugging and kissing is not the kind of accidental or unavoidable contact contemplated by s 20(2) of the CLCA.
The Magistrate rejected the appellant’s assertion that if an audio recording had been available that would have established that the complainants were happy and willing to chat to him while in the taxi. Apart from the consensual first kiss early in the journey, it was clear from the CCTV footage that the complainants did nothing to encourage his attention. There was no suggestion that after JM said “whoa, whoa, whoa” that the appellant had apologised and told her that he had misread her signs of consent. There was no reason for the appellant to think that after KJ had left the taxi that she would want further physical contact. She had only been in his taxi for a few minutes and there was no proper basis for him to suggest that a rapport had been established, or that she would want to be delayed by hugging and kissing.
In relation to count 2, the Magistrate found that the second kiss of SM by the appellant had not been proven to have an indecent or sexual intent or connotation, even though his kiss was of an unwelcome and unpleasant nature to SM. However, as the kiss was an intentional and physical affront on SM’s person, done without her consent and without the appellant having any valid reason to believe that she would consent, the Magistrate was satisfied that the conduct would still give rise to an assault in the absence of circumstances of indecency. Her Honour applied the following test in R v Williamson to determine whether the alternative charge was established:
… the test to be applied … is whether the lessor misdemeanour of common assault was necessarily included in the offence of indecent assault as charged …
This does not mean that a verdict of common assault is never open on a charge of indecent assault, it does mean that such a verdict is not open in those cases where the absence of consent is not an ingredient of the offence of indecent assault as charged in the presentment. [5]
Her Honour found that the absence of consent is a necessary element of the indecent assault offence charged in count 2. A viable case for assault did arise fairly on the evidence of both the appellant and SM and also the CCTV footage. On that basis the Magistrate found the appellant guilty of the alternative charge of common assault in count 2.
[5] [1969] VR 696 at 698, Winneke CJ, Little and Menhennitt JJ.
The grounds of appeal
While the notice of appeal was lodged several days late, the respondent does not oppose the application for an extension of time. Accordingly, I indicated that I would grant the appellant an extension of time to lodge the appeal.
The grounds of appeal stated by the appellant are as follows:
1I was not allowed to make any statement, neither during interrogation, nor during trial.
2The closing address prepared by me was not welcomed and was not even read in the Court and none of the points raised by me were even addressed in the judgment.
3I was not allowed to question the witnesses or the prosecutor.
4The pre-trial conferences were a joke. I was only given next date at PTC.
5I was unrepresented. The Legal Services Commission rep nominated to me backed off on her first appearance on the day of trial.
6Public prosecutor harassed me with repeated and unbecoming questions.
The appellant’s submissions
The appellant has made extensive written submissions that largely replicate those made to the Magistrate. In essence, the appellant contends that he did not assault the complainants. They consented to his actions. Furthermore, his actions were within the limits of normal social interaction. He also contends that the trial was not conducted fairly. Those contentions are advanced on a number of grounds. In addition to those matters the appellant refers to several other issues.
The appellant supports his contention that he did not assault the complainants as they had consented to his actions with a detailed written commentary on the CCTV footage relevant to each count. He also made submissions at the appeal hearing in support of his contention that his actions were within the limits of normal social interaction.
The appellant alleges that he was not permitted to give evidence at the trial. He also alleges that the Magistrate had actively supported the prosecution and not given him a chance to present his evidence. He alleges that KJ had assaulted and kissed him. He submits he was denied the opportunity to show that her evidence, and that of the other witnesses, was untrue.
The appellant also alleges that the police prosecutor had coached the witnesses. Furthermore, the first witness called, SM, had coached the other witnesses after she left the courtroom. He was not permitted to conduct further cross-examination of the witnesses about those issues.
A further complaint made by the appellant in relation to the fairness of the trial was that the identity of the complainants had not been verified and SM was a “police actor”. The complainants had also not been subjected to forensic examination. No enquiry had been made into the personality of the complainants but he had been subjected to extensive cross-examination about his personal views and attitudes and shamed for being a Muslim. He had been interrogated rather than cross-examined by the police prosecutor. He had been subject to racial abuse in the form of the question “do you think Aussie girls are fair game?” The Magistrate had assisted the prosecution by explaining to him what the term “fair game” meant.
The appellant also complains that the three pre-trial conferences had been a “joke” and he had not been provided with the opportunity to negotiate a resolution of the charges. He also complained that the victim impact statements had been prepared by one person and contained “naked and vulgar” language of which the Magistrate took no notice.
The appellant also complains about the sentence imposed although he has not appealed against the sentence. A related complaint was that the complainants had not been informed of the serious adverse effect the charges had upon his employment and his family.
The appellant also made several allegations of impropriety on the part of the police and prosecution. Some accusations were outlandish (e.g. that the complainant SM was a police actor) and others lacked any evidentiary foundation (e.g. as the prosecutor was seen speaking to the witnesses before the trial started he must have coached them and the witnesses also coached each other). Other allegations were either wrong or irrelevant to the trial (e.g. the police came to the appellant’s house late at night when in fact both records of interview started at about 7 pm, or the police delayed return of his passport until after the Police Ombudsman intervened). Wisely, the various allegations were not put to the witnesses in cross-examination by Mr Crowe. I do not consider that any of these matters warrant further consideration.
The respondent’s submissions
The respondent submits that an appellate court must review the proceedings and evidence in their entirety to determine whether a miscarriage of justice has occurred on account of the appellant’s lack of legal representation.[6] In order to determine whether a miscarriage of justice has occurred, it is necessary to consider the facts of the case, the background of the accused, the circumstances in which the accused came to be unrepresented and the nature and seriousness of the charges.[7]
[6] Ardalich v Police [2007] SASC 196 at [23], Gray J.
[7] Ibid at [26].
The respondent further submits that there are circumstances in which a criminal trial will be fair even though the defendant is not represented. By way of example, the respondent refers to cases where a defendant possesses the means to obtain legal representation but elects not to and also proceedings before a judge or magistrate, without a jury, for a non-serious offence.[8] Where a defendant is not represented a particular burden is place upon the trial judge to ensure that the trial is fair. The defendant must be fully informed of their rights, the procedures of the court and how to conduct his or her defence. The categories of advice are not limited. Whether any and what advice should be given to an unrepresented defendant depends on the circumstances of the case and of the defendant. However, the obligation to give advice does not extend to the trial judge advising a defendant how to conduct their case or becoming an advocate for them.
[8] Ibid at [27], citing Dietrich v R (1992) 177 CLR 292 at 335-336, Deane J.
The respondent notes that while the appellant was not represented at trial he did have the assistance of Mr Crowe in cross-examining the complainants. Mr Crowe also raised relevant legal issues with the Court while he gave assistance on the first day of the trial. The respondent further submits that the Magistrate sufficiently intervened and assisted the appellant during the trial and that he was able make effective choices in the conduct of his defence.
The respondent also observes that the appellant was advised on numerous occasions at pre-trial conferences about the significance of obtaining legal representation at the trial and the limitations placed on his cross‑examination of the complainants by s 13B of the Evidence Act. He was given ample time to arrange legal representation. There was no basis to the complaint by the appellant that the assistance provided by Mr Crowe disadvantaged him by depriving him of the opportunity to question the witnesses. The respondent also refers to a number of examples where the Magistrate intervened during the trial in a manner that effectively managed the competing interests of efficiency and fairness. The Magistrate also assisted the appellant by leading him through the preliminary parts of his evidence-in-chief and also assisted him to maintain his focus on matters relevant to his defence rather than unrelated matters that the appellant raised at times during his evidence. The Magistrate also enquired with the appellant as to how he wished to present his evidence and made suggestions by way of guidance. At the end of the appellant’s cross-examination the Magistrate gave him the opportunity to call any further witnesses and present further evidence, and ensured that he understood that this was his opportunity to “make his statement”.
In summary, the respondent submits that the Magistrate, at all stages during the trial, intervened to an extent that was sufficient to ensure that the proceedings were free of error or misunderstanding and to minimise the disadvantage suffered by the appellant as an unrepresented litigant. That resulted in the appellant being afforded a fair trial and the avoidance of any miscarriage of justice.
The respondent submits that there was no basis to the complaint by the appellant that he was not allowed to “make a statement” or “allowed to give my evidence myself”. As already noted, the appellant was given the opportunity at the end of his cross-examination to call further evidence but had declined to do so.
The respondent also submits that there is no basis to the appellant’s complaint that his closing address was neither welcomed, read in Court nor referred to in the Magistrate’s reasons. At the close of the defence case, the Magistrate explained to the appellant in some detail what was involved in closing submissions. Her Honour expressed a preference for the prosecution to provide written closing submissions so that the appellant would have adequate time to consider and respond to those submissions. The Magistrate confirmed with the appellant that he preferred to make written submissions. The evidence concluded on 5 January 2017 but the prosecution submissions were not submitted until 11 May 2017. The appellant was then allowed until 21 July 2017 to lodge his written submissions.
While the Magistrate’s reasons did not refer to the appellant’s closing submissions, nor those of the prosecution, it does not follow that her Honour did not have regard to those submissions.
The respondent submits there is no basis to the appellant’s complaint that he was harassed by the prosecutor with repeated and unbecoming questions. The respondent submits that it was necessary and entirely appropriate for the prosecutor to challenge the evidence of the appellant. Furthermore, the respondent submits that the appellant was at times a difficult witness in that he would not answer questions and introduced irrelevant material in his responses.
The respondent submits that there is no basis to the appellant’s complaint that he was not permitted to cross-examine the witnesses or the prosecution. Section 13B of the Evidence Act precluded the appellant from personally cross‑examining SM and KJ because they were alleged victims of the sexual offences referred to in counts 2 and 8. Thus, the only options available to the appellant were to obtain the assistance of counsel to conduct the cross‑examination or to formulate questions to be asked by the Magistrate. By obtaining the assistance of counsel the appellant was afforded the preferable option. While s 13B did not apply to JM, Mr Crowe had cross‑examined her, as he said “in the spirit of the legislation”. There was nothing to suggest that this was not in accordance with the instructions of the appellant.
The respondent also submits that the findings of guilt made by the Magistrate were supported by the evidence and there was no error in her Honour’s approach. There was no issue at the trial as to whether there had been deliberate physical contact with the complainants. That was clear from the CCTV footage and not disputed by the appellant. The Magistrate was satisfied that the complainants were witnesses of truth and had not willingly participated in the conduct alleged in counts 1 to 7. There was no error in the finding of the Magistrate that the conduct of the appellant and the physical contact made with the complainants went “well beyond” that which was justifiable or excusable as accidental or unavoidable. The Magistrate was entitled to reject the appellant’s self-serving evidence that he was a good judge of human behaviour and had understood the complainants to be consenting to the contact.
The respondent submits that in conducting an appeal by way of re-hearing this Court must recognise the advantage held by the Magistrate, particularly in relation to the credibility of the witnesses.[9] The factual findings made by the Magistrate were clearly open on the evidence and ought not to be disturbed on appeal. The respondent also notes that the Magistrate made significant factual findings in the appellant’s favour, in particular in relation to the allegation of indecent assault in count 2 and the finding that it had not been proven that the appellant had intended to obtain sexual gratification.
[9] Fox v Percy (2003) 214 CLR 118 at 125-128, Gleeson CJ, Gummow and Kirby JJ.
Consideration
I have viewed the CCTV footage twice, i.e. before and after the appeal hearing. I have also read the entire transcript of the evidence at trial comprising 335 pages. That was necessary because of the nature of the issues raised by the appellant.
For the reasons that follow, I do not consider that any of the six specific grounds of appeal stated by the appellant have been made out. However, there is an implicit suggestion in several of the grounds that the trial was not fairly conducted. As the respondent quite correctly submits, in a case such as this, where the appellant was not legally represented, it is necessary to consider the facts of the case, the background of the accused, the circumstances in which he came to be unrepresented and the nature and seriousness of the charges in order to determine whether a miscarriage of justice has occurred.[10] Before considering those issues, I will deal with the specific grounds of appeal advanced by the appellant.
[10] Ardalich v Police [2007] SASC 196 at [23], Gray J.
Ground 1
The appellant contends that he was not allowed to make any statement in his defence when he was questioned by the police or at trial.
The transcripts of the two police interviews show that he was given appropriate opportunity to respond to police questions and to explain what had occurred. While the police records of interview were tendered in evidence at the trial, little reliance was placed upon the contents of those interviews. The trial was decided on the basis of the oral evidence given by the appellant and the complainants and the CCTV footage.
The appellant’s evidence-in-chief extended over 25 pages of transcript. The cross-examination occupied 244 pages of transcript. At the end of his cross‑examination the appellant asked the Magistrate “what does giving evidence mean, because so far I have not made any statement, I am just replying to questions.” In response, the Magistrate permitted the appellant to make a statement. He then commenced to repeat evidence that he had already given as evidence-in-chief or in cross-examination. The Magistrate pointed out to the appellant that the purpose of the further statement was to provide the opportunity for him to deal with any matters that had not been previously covered because she had led him through his evidence-in-chief. The appellant stated that there was nothing that he wished to say that he had not already said.
The appellant apparently considers that he should have been allowed to make a statement at the trial rather than to give evidence in the form of answers to questions directed at him. In view of his statement to the Magistrate that there was nothing further he wished to add to the evidence that he had already given there is no basis to this complaint. I dismiss the first ground of appeal.
Ground 2
In his second ground of appeal the appellant contends that his written closing address was “not welcomed” and was not read in the Court. Furthermore, none of the points that he had raised in his written submissions were addressed by the Magistrate in her judgment.
The Magistrate addressed the principle contentions advanced by the appellant. However, she did not specifically address every point that he raised. Many of those points were mere speculation that should not have been raised in submissions because they were not supported by any evidence and had not been put to the relevant witnesses, e.g. the allegations that the prosecutor had coached witnesses and the witnesses had coached each other, that SM was a police actor and not the real complainant and that JM’s friend had prompted the prosecution. The Magistrate addressed all points of significance that arose out of the trial and carefully analysed the oral and CCTV evidence. I dismiss ground two.
Ground 3

The appellant complains in ground three that he was not permitted to question the witnesses or the prosecutor. Section 13B of the Evidence Act prohibited the appellant from cross-examining SM and KJ because it was alleged in counts 2 and 8 respectively that he had indecently assaulted them. For that reason Mr Crowe cross-examined those witnesses. Mr Crowe also assisted the appellant by conducting the cross-examination of JM on his behalf although that was not legally required. The appellant made no complaint at trial about the assistance provided to him by Mr Crowe. Clearly, the appellant was not entitled to cross-examine the prosecutor. I dismiss ground three.
Ground 4
At the appeal hearing the appellant was unable to provide any meaningful explanation concerning his contention in ground four that the pre-trial conferences were a “joke”. He was legally represented by a practitioner from the Legal Services Commission at each pre-trial conference. He has not suggested that any perceived inadequacies relating to the pre-trial conferences adversely affected the conduct of the trial. I dismiss ground four.
Ground 5
The appellant complains in ground five that he was unrepresented at the trial because the Legal Services Commission declined to provide representation. While the appellant had been charged with indictable offences, because the trial was conducted in the Magistrates Court the effect of s 6 of the Criminal Law (Legal Representation) Act 2001 (SA) was that the Legal Services Commission was not required to provide legal representation. However, he was entitled to legal assistance for the purpose of cross-examining witnesses to whom s 13B of the Evidence Act applied (subject to the qualifications in s 6 of the Criminal Law (Legal Representation) Act). Mr Crowe provided that representation. The lack of legal representation, of itself, does not provide a valid ground of appeal. However, in some circumstances a lack of legal representation may result in a trial being unfair. That issue will be considered later in my reasons. I dismiss ground 5.
Ground 6
The sixth ground of appeal advanced by the appellant is that the prosecutor harassed him with repeated and unbecoming questions. In considering that contention it is necessary to have regard to s 25 of the Evidence Act which provides as follows:
25—Disallowance of inappropriate questions
(1)     A question is an inappropriate question if—
(a)     the question is misleading or confusing; or
(ab) the question is expressed in language that is unnecessarily complicated; or
(b) the question is apparently based on a stereotype, including a sexual, racial, ethnic or cultural stereotype or a stereotype based on age or physical or mental disability; or
(c) the question is unnecessarily repetitive, offensive or oppressive, or is 1 of a series of questions that is unnecessarily repetitive, offensive or oppressive; or
(d) the question is put in a humiliating, insulting or otherwise inappropriate manner or tone.
(2)     A question is not, however, inappropriate only because—
(a) it challenges the truthfulness of the witness, or the consistency or accuracy of statements made by the witness; or
(b) it deals with matters the witness would find distasteful or intrudes on the witness's privacy.
(3)     If an inappropriate question is put to a witness in cross-examination, the court must—
(a)      disallow the question; and
(b)     inform the witness that the question need not be answered.
(4)     In determining whether a question is inappropriate, the court may take into account—
(a)      the age, personality and educational level of the witness; and
(b)     any physical disability or cognitive impairment of the witness; and
(c)      the witness's ethnic and cultural background; and
(d)     any other characteristics of the witness that may be relevant; and
(e)      the context in which the question is put, including—
(i) the nature of the proceedings and, if the proceedings are criminal proceedings, the nature of the offence to which they relate; and
(ii) the relationship (if any) between the witness and a party to the proceedings; and
(f)      any other relevant factor.
(5)     The failure to exercise the discretion in relation to a question does not affect the admissibility of any answer given in response to the question.
Although the failure to exercise the discretion to disallow a question or to direct that it need not be answered does not affect the admissibility of an answer, a repeated or egregious failure to intervene under s 25 of the Evidence Act in circumstances where intervention was necessary, may result in the trial being unfair, particularly in circumstances where a defendant is unrepresented.
While the cross‑examination of the appellant was lengthy, that was largely because there were three separate incidents involving three different complainants and eight counts. The cross‑examination was also extended because the appellant frequently gave answers that were not responsive to the question asked or amounted to a long statement. I do not consider that the cross-examination was unnecessarily repetitive, offensive or oppressive in terms of s 25(1)(c) of the Evidence Act. The Magistrate dealt appropriately with repetition by directing, on more than one occasion, that the appellant need not answer a question as he had already done so.
The sixth ground of appeal also raises the issue of whether some of the questions put to the appellant were “apparently based on a stereotype, including a sexual, racial, ethnic or cultural stereotype” contrary to s 25(1)(b) of the Evidence Act. Much of the appellant’s evidence concerning what he regarded as appropriate conduct was, in essence, a submission as to what would be generally accepted in the community as normal incidents of social interaction or community life. The thrust of the questioning by both the prosecutor and the Magistrate was to establish whether the appellant’s Islamic beliefs and Pakistani cultural values may have resulted in him holding stricter views about the touching of unrelated women than the views generally accepted by the community. The questioning was relevant to the evidence of the appellant and the submissions that he advanced. The questioning was also relevant to the truth of his assertions that the complainants were willing to engage in physical contact with a taxi driver whom they had never met before and was considerably older than them.
Only a small number of questions was asked about the appellant’s cultural and religious background. There was nothing about the questions that was unnecessarily offensive or oppressive. He was most certainly not shamed because of his Islamic beliefs. I do not consider that the Magistrate was required by s 25(3) of the Evidence Act to disallow the questions or direct that the appellant need not answer them. I dismiss ground six.
Whether lack of legal representation resulted in an unfair trial
As I have already noted, Mr Crowe conducted the cross-examination of each of the three complainants although that was only legally required in two instances. During the time that Mr Crowe was before the Court he also made submissions on behalf of the appellant on matters of law and procedure. Mr Crowe is a very experienced criminal lawyer. As the matter proceeded the Magistrate also carefully explained to the appellant the nature of the trial process and the steps that were required. Her Honour decided that the parties should make written submissions as that would assist the appellant to respond to the experienced police prosecutor. The appellant was permitted a very substantial period to prepare his written submissions. His education suggests that he is a man of above average intelligence. He clearly undertook some research on the relevant law. In all the circumstances I do not consider that the appellant’s lack of legal representation resulted in the trial being unfair.
The intervention by the Magistrate
The Magistrate led the appellant through the introductory elements of his evidence-in-chief, e.g. his background, his work as a taxi driver and so forth. The Magistrate then proceeded to question the appellant so as to determine the evidence that he wished to give in his defence. The task of the Magistrate in assisting the appellant to present his evidence-in-chief was made more difficult than necessary by the irrelevant or highly implausible nature of some of his evidence. On several occasions the Magistrate asked the appellant whether he considered that such evidence assisted his case. I consider that those comments were designed to assist him to focus on relevant issues.
Although some of the questions put to the appellant by the Magistrate while assisting him to present his evidence-in-chief may have been better left to the prosecutor to pursue in cross-examination, I do not consider that the approach adopted by the Magistrate gave rise to a reasonable apprehension of bias, nor was it so gross or so persistent as to compromise her Honour’s capacity to independently evaluate the evidence.[11] The Magistrate was seeking to assist the appellant present evidence in his defence but her Honour’s task was made more difficult by some of his answers.
[11] Zanker v Kupsch [2014] SASCFC 13 at [83], Kourakis CJ and Anderson J.
Whether there was any error
While the grounds of appeal specified by the appellant do not directly raise the question, the clear effect of the appellant’s submissions is that he considers that the proceedings were unjustly decided. I have already considered his lack of legal representation and the intervention by the Magistrate. The further question is whether the Magistrate made any error of law or of fact.
The greater part of the discussion of the legal principles by the Magistrate related to the two counts of indecent assault. That analysis is irrelevant to this appeal as the appellant was acquitted on both of the indecent assault counts (although he was convicted in the alternative of common assault on one of those counts).
The Magistrate correctly identified that the level of force required to constitute assault need not be great. Her Honour also correctly found that it was necessary that the conduct must be intentional and not justified or excused by law. Her Honour also found that the conduct of the appellant went well beyond “conduct that lies within the limits of what would be generally accepted in the community as a normal incident of social interaction or community life.” There was no error in the Magistrate’s legal analysis.
The appellant has made detailed written submissions concerning the CCTV footage relating to each count. Having viewed the CCTV footage twice I am not persuaded that the Magistrate erred in finding that the physical contact went beyond what would be generally accepted in the community as a normal incident of social interaction or community life. Put simply, passengers do not expect to be kissed, hugged, caressed or stroked by a taxi driver. That is even more obvious when a young woman is travelling alone at night, as was each complainant.
I also consider that the Magistrate did not err in her finding that the complainants had not consented to the actions of the appellant. The Magistrate had the advantage of seeing and hearing the complainants and the appellant give oral evidence and explain what was depicted in the CCTV footage. The factual findings made by the Magistrate were clearly not “glaringly improbable” or “contrary to compelling inferences” in the sense referred to by the High Court in Fox v Percy.[12]
[12] (2003) 214 CLR 118.
Conclusion
I will grant an extension of time to file the Notice of Appeal and order that the appeal be dismissed.