Wait v Police

WAIT v POLICE
[2003] SASC 94
Magistrates Appeal

BESANKO J: This is an appeal from a decision of a Magistrate pursuant to s 42 of the Magistrates Court Act 1991.
The appellant was charged on Information with the offence of assault occasioning actual bodily harm contrary to s 40 of the Criminal Law Consolidation Act 1935. It was alleged that on 13 April 2001 he assaulted Duane Peter Gilbert at Modbury thereby occasioning him actual bodily harm. The defendant pleaded not guilty to the charge.
After a hearing before the Magistrate, the appellant was found guilty and was convicted of the offence. The Magistrate released the appellant upon him entering into a recognizance in the sum of $200 to be of good behaviour for a period of 18 months.
The appellant appeals to this Court against the conviction. It is convenient to refer to him in these reasons as the defendant.
The Prosecution Case
The prosecution alleged that the assault took place during a party at the home of the parents of Ms Belinda Mellows. Ms Mellows was and is the defendant’s girlfriend. The prosecution called three witnesses, Mr Gilbert, Ms Carly Bolton (Mr Gilbert’s girlfriend at the time) and Ms Emma Goodenough.
At trial, the facts in dispute lay within a relatively narrow compass. There was no dispute that on the night in question, Mr Gilbert had suffered a significant injury, namely, deep lacerations to his left ear and that those lacerations required 18 sutures. There was no dispute that the injuries constituted actual bodily harm, and it was not disputed that the injuries were caused by a glass which had been held by the defendant in his right hand immediately before the injury was sustained. There was no dispute that there was a confrontation between Mr Gilbert and the defendant shortly before Mr Gilbert suffered the injuries which I have identified. The issue at trial was whether the defendant had intentionally inflicted the injuries or whether the application of force was accidental, or more accurately, whether an accidental application of force could be excluded as a reasonable possibility.
Ms Mellows lived at home with her parents. Her parents were away on Good Friday 13 April 2001 and, with the approval of her mother, Ms Mellows arranged to have a party for a group of friends. Friends were invited by telephone or by word of mouth. The invitees were former school friends of Ms Mellows and the defendant.
The defendant cooked a barbecue early in the evening. In the course of the evening the number of guests at the party grew. Ms Goodenough was an invited guest. She arrived at the party at about 9:00PM to 9:30PM with two guests the Magistrate described as “de facto” guests, Ms Bolton and Mr Gilbert. By that expression, the Magistrate meant that these two guests attended “more or less” on the invitation of Ms Goodenough. Mr Gilbert brought with him a bottle of Scotch some of which had already been “removed” or consumed. Ms Goodenough said that Ms Bolton and Mr Gilbert were welcomed as guests, although the Magistrate observed that Ms Mellows was somewhat reserved as to how welcome they were.
Mr Gilbert placed his bottle of Scotch in a cupboard or pantry in the kitchen area, and it was there for the exclusive use of himself and Ms Bolton.
One of the defendant’s friends at the party was a Mr Ryan White. During the course of the evening, Mr Gilbert thought that somebody was drinking his Scotch. He accused Mr White of doing this. The defendant and Mr White had a conversation and the defendant then told Mr Gilbert that Mr White was not responsible.
The defendant and Mr Gilbert exchanged words in the rumpus room. They moved out of the rumpus room, to a nearby area where there were some pot plants. The defendant was facing Mr Gilbert and the wall of the rumpus room. An argument ensued, and there was contact between the foreheads of the two men or the peak of Mr Gilbert’s cap and the bridge of the defendant’s nose. As a result of this altercation, Mr Gilbert stumbled back over a pot plant, and as he did so he grabbed the appellant’s shirt to steady himself. This caused the defendant to come towards Mr Gilbert. As he did so he hit Mr Gilbert across the left ear with the glass. Both parties fell to the ground. At this point, Ms Bolton intervened. There was a significant laceration to Mr Gilbert’s left ear, and the prosecution case was that the laceration was caused by the glass in the defendant’s right hand coming into contact with Mr Gilbert’s head.
The Defence Case
The defendant gave evidence and called as a witness his girlfriend, Ms Mellows.
The defendant said that during his conversation with Mr Gilbert outside the rumpus room his head was sufficiently close to Mr Gilbert’s as to cause the peak of Mr Gilbert’s cap to strike the upper bridge area of the defendant’s nose, and that as Mr Gilbert fell backwards and toppled over the pot plant behind him he grabbed the defendant’s shirt, and it was the momentum caused by this that caused the defendant to throw up his arms to steady himself and avoid falling. The defendant said that at this stage he was not aware of what had become of the bottle in his left hand and he was not conscious of what occurred with the glass in his right hand. The defendant said that as a result of the momentum of Mr Gilbert pulling him towards him he fell on top of Mr Gilbert and at some stage the glass had broken accidentally and as a result the injury sustained by Mr Gilbert was caused by the defendant.
Ms Mellows said that at no time did she see the defendant swing his right hand in which he had a glass against the side of Mr Gilbert’s head.
The Magistrate’s reasons
The Magistrate delivered an ex tempore judgment.
The Magistrate found that both Mr Gilbert and the defendant had been drinking at the time of the incident. The defendant is a taller man than Mr Gilbert.
Surprisingly, the Magistrate does not say whether she accepted the evidence of Mr Gilbert. She did comment on the reliability and credibility of the other four witnesses who gave evidence at the trial. The Magistrate found that the evidence of Ms Bolton was of no great assistance. She said it was not that Ms Bolton was not credible, but rather she had difficulty comprehending questions and giving comprehensive answers. Insofar as it was of any assistance, it tended to support the prosecution case that Mr Gilbert was not adopting an aggressive approach at the time of the incident. The Magistrate found that Ms Goodenough’s evidence was important. Ms Goodenough had not been drinking. Her evidence was unequivocal that the injury was sustained while both men were upright. The Magistrate said that Ms Goodenough impressed her as a witness.
The Magistrate was not impressed by the defendant or by Ms Mellows. She noted that both frequently used the expression “I am not sure”. The Magistrate said that both were quite obviously being evasive, and they did not impress her as witnesses of truth. The Magistrate made the observation that Ms Mellows was the defendant’s girlfriend.
The Magistrate said that it was of concern to her that the defendant had not called Mr Ryan White and no reason had been given for him not being called. The Magistrate said that the defendant acted out of character and that was a matter she could properly take into account in imposing penalty.
As a great deal of criticism was directed towards the last three paragraphs of the Magistrate’s reasons, I will set them out in full:
“On the defence side the defendant who at first struck me as being exceedingly careful to be honest and correct about each of his answers as his evidence continued both in examination‑in‑chief and cross‑examination resorted frequently to the expression, ‘I am not sure’. This expression, was echoed repeatedly in the evidence of his witness Ms Mellows. Suffice to say I came to the belief in the end that in fact both witnesses were in my view quite obviously being evasive and in my view did not impress me as witnesses of truth.
Further in the defence case, it was of concern to me that the witness Ryan was not called and no reason was given for him not being called. Indeed no persons other than the defendant’s girlfriend, whose evidence I must view accordingly, was called for the defence.
I would say in finding the charge proved that it is my impression that Mr Wait did act out of character and against his best interests, both by reason of the consumption of alcohol and sheer recklessness on the night in question and those I think are considerations I may properly take into account in imposing penalty. Suffice to say I find him guilty as charged.”
Grounds of Appeal
There are two grounds of appeal, namely:
“1.The learned Special Magistrate erred in the application of her assessment of the defendant’s evidence and thereby reverse the onus of proof.
2. The finding of guilty was against the weight of the evidence.”
The defendant’s counsel put forward a number of arguments in support of these grounds of appeal. First, he submitted that the Magistrate erred in placing any weight on the fact that the defendant had not called Mr Ryan White as a witness. Indeed, it was argued that the Magistrate erred in making the further observation that no persons other than the defendant’s girlfriend were called as witnesses for the defence. Secondly, the defendant’s counsel argued that the Magistrate had in fact reversed the onus of proof. The defendant’s counsel referred to the emphasis the Magistrate had placed upon the fact that the defendant and his witness Ms Mellows had frequently answered questions by saying “I am not sure”. The defendant’s counsel submitted that when the questions and answers are examined in detail it is clear that it was unfair to draw conclusions adverse to the defendant from those answers. Furthermore, the defendant’s counsel argued that to emphasise the fact that the defendant and his witness had frequently said that they were not sure was, when coupled with the Magistrate’s statement that the failure to call Mr Ryan White was of concern to her, an indication that the Magistrate had in fact reversed the onus of proof. The defendant’s counsel submitted that the emphasis the Magistrate placed on the unsatisfactory nature of the evidence given by the defendant and his witness suggested that the Magistrate had erred in treating credibility as the only real issue in the case. The reason that approach may involve a risk of error was stated by von Doussa J in Harris v Mill (Unreported, SCSA, von Doussa J, Judgment No 592, 7 April 1988).
“In a sense the key issue in many trials is credibility, but to pose the question as ‘who to believe’ is apt to be misleading and to cause a tribunal in a criminal trial to fall into error of the kind exposed in R v Calides (1983) 34 SASR 355. There is a very real risk that the inquiry will become ‘which of the parties giving the competing stories is to be preferred’. The preference of the victim’s evidence to that of the defendant, even where the defendant’s evidence is in consequence rejected, leaves unanswered the essential question whether the tribunal is satisfied that every element of the charge is proved beyond reasonable doubt. Generally speaking, the rejection of the defendant’s evidence does not provide positive evidence of guilt. The preference of the victim’s evidence does not lead inevitably to a conclusion that his or her evidence should be accepted as proof beyond reasonable doubt. Even a finding that the victim was a truthful witness does not mean that the victim’s evidence is necessarily reliable. The victim might be patently honest yet mistaken, or through faulty memory unreliable in respects which leave open a reasonable doubt as to the defendant’s guilt.”
See also Selig v Hayes (1989) 52 SASR 169; Fitzgerald v Police (2002) 220 LSJS 120; [2002] SASC 202.
Thirdly, the defendant’s counsel argued that the Magistrate had not paid regard or sufficient regard to the defendant’s good character. Furthermore, she had erred, or at least there was the possibility that she had erred, by referring to the defendant’s conduct as involving recklessness. Fourthly, the defendant’s counsel argued that the Magistrate had not, in her reasons, adequately analysed the disputed issues in the case. He relied on the obligation of the Magistrate to give “coherent, intelligible and comprehensive” reasons (see Harwood v Police (1998) 71 SASR 300). When the evidence is properly analysed it is clear, argued the defendant’s counsel, that the evidence did not support a finding of guilt. The defendant’s counsel submitted that having regard to the evidence, the prosecution had not excluded accident as a reasonable possibility. The defendant’s counsel also submitted that self‑defence could not be excluded as a reasonable possibility. This defence had not been put to the Magistrate, nor is it raised in the grounds of appeal.
The Alleged Failure of the Defence to Call Mr White or Other Witnesses
The Magistrate made two observations about how the defendant conducted his case. First, she said that it was of concern to her that Mr Ryan White was not called and no reason was given for him not being called. Secondly, she observed that no persons (other than the defendant’s girlfriend) were called for the defence.
In relation to the first matter, the Magistrate does not explain why the failure to call Mr White was of concern to her and how she used the fact that Mr White did not give evidence in her assessment of the evidence.
It is not clear from the evidence whether Mr White witnessed the incident. The only evidence on the point is from the defendant in cross‑examination to the effect that Mr White was not present. On the prosecution case, Mr White was involved in events preceding the incident in the manner I have described. The prosecution does not assert that he was a witness to the incident. On the defence case he was involved in events preceding the incident, and in saying to the defendant that he felt threatened that something was going to happen to him.
The prosecution argued that it could not be criticised for failing to call Mr White because he was a friend of the defendant and the significance of his evidence only emerged when the defendant said in cross-examination that Mr White felt threatened by Mr Gilbert. This presumably bore on how aggressive Mr Gilbert was at the time of the incident, and in turn perhaps, as to how aggressive the defendant was at the time of the incident.
A transcript of the evidence was taken and I have read that transcript. Unfortunately, the submissions of counsel in relation to the significance of Mr White’s absence from the witness box are not in the transcript. Nor has the Magistrate explained her approach.
There are authorities that suggest that the failure to call witnesses may be used against the accused providing the fact finder is satisfied that the witness is a witness who saw and heard some of the events of which the accused has given evidence and providing that the witness is available in the sense that his absence has not been explained. If those two conditions are satisfied then the fact finder may infer that the witness’s evidence would not have helped the accused, and this in turn may lead the fact finder to attach less weight than it would otherwise to the evidence of the accused. Of course, the fact finder is not bound to proceed in this fashion (R v Booth [1983] 1 VR 39; R v Gallagher [1974] 1 WLR 1204; R v Staines (1974) 60 Cr App Rep 160).
Recently however the High Court has considered whether the fact that the accused has not given evidence or called a witness can be used against the accused.
In Weissensteiner v R (1993) 178 CLR 217 the High Court considered the correctness of a direction about the significance of a failure by an accused to give evidence in a case where the prosecution case against him was a circumstantial case. Mason CJ, Deane and Dawson JJ said (at 228‑229):
“However, the appellant argued that, just as it is impermissible for the trial judge to suggest that inferences adverse to the accused may be drawn from a previous exercise of the right to silence, so it is impermissible for the trial judge to suggest that inferences adverse to the accused which are available to be drawn from the facts proved by the Crown may be drawn more safely when the accused does not give evidence of relevant facts which must be within his or her knowledge. We do not agree. There is a distinction, no doubt a fine one, between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge. In determining whether the prosecution is satisfied the standard of proof to the requisite degree, it is relevant to assess the prosecution case on the footing that the accused has not offered evidence of any hypothesis or explanation which is consistent with innocence.”
In RPS v R (2000) 199 CLR 620 the High Court considered the issue once again. Gaudron A‑CJ, Gummow, Kirby and Hayne JJ said (at 632‑633):
“By contrast, however, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen:
‘In a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.’
In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations.”
On the question of the defence’s failure to call a witness, their Honours said (at 633):
“If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor ‘has the responsibility of ensuring that the Crown case is presented with fairness to the accused’ and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused.”
It seems clear from these cases that whether a direction should be given and, if so, the content of such direction raises difficult questions, the resolution of which very much depends upon the particular circumstances of the case. The decision in R v Newland (1997) 98 A Crim R 455 is a good illustration of that proposition. The New South Wales Court of Criminal Appeal upheld a complaint about a trial Judge’s direction inviting a jury to consider whether the Crown or the defence should have called a particular witness. The Court held that the trial Judge had not given the jury adequate instruction as to how they should determine the question. Gleeson CJ said (at 462):
“The jury knew nothing about the principles governing the obligation of a Crown prosecutor to call evidence. They had received no instruction about the provisions of the Evidence Act which might have been called in aid by the prosecutor had Collins been recalcitrant. They knew nothing about what Collins had said to the police, or to the Court which dealt with him, concerning any involvement of the appellant in the crimes committed by Collins and Floyd.”

Gleeson CJ considered that it was not an appropriate case for a Jones v Dunkel direction. His Honour made the following general remarks about such a direction:
“In some cases the question of who might reasonably be expected to call a witness might be answered simply as a matter of commonsense. In other cases, of which the present is an example, it might be a question the answer to which is far from simple. Cases of that kind require a deal of caution before Jones v Dunkel is involved.”
It is unnecessary for me to decide if the recent authorities of the High Court abrogate or necessitate a significant modification of the principle said to emerge from the earlier authorities to which I have referred. I say that because, in my respectful opinion, whatever view is adopted, the Magistrate has erred. First, she has not adequately explained the reasons for her approach, and indeed what particular approach she took. Secondly, I do not think any weight should have been placed on the failure to call Mr White. Whilst on the material I would not find that the prosecution should have called Mr White (Richardson v R (1974) 131 CLR 116; R v Apostilides (1984) 154 CLR 563), I do not think the defendant can be criticised for not calling Mr White. Neither party suggested that Mr White witnessed the incident. Thirdly, I think the Magistrate erred in criticising the defendant for failing to call other (unidentified) witnesses. I do not think that there was any basis in the evidence for her to do so.
I think the Magistrate has erred in failing to explain her approach and in (apparently) placing weight on the defendant’s failure to call Mr White or other (unidentified) witnesses.
The Argument that the Magistrate Reversed the Onus of Proof
The defendant’s counsel identified each question to which the defendant and Ms Mellows answered, “I am not sure”. I have read the evidence. Although there are occasions where such an answer is not surprising, there are a number of topics where I think the particular answer does reflect on the defendant’s credibility and reliability, and, looking at the matter as a whole, I think the Magistrate was entitled to draw the conclusions that she did. The same may be said of the evidence of Ms Mellows. In this context, I bear in mind the advantage the Magistrate had in that she saw and heard the relevant witnesses (Devries v Australian National Railways Commission (1993) 177 CLR 472).
I do not think the Magistrate fell into the trap of approaching the matter by asking which of the parties giving the competing stories is to be preferred. The Magistrate had to consider the evidence called by the defendant and Ms Mellows. If she had accepted that evidence, the charge would have been dismissed. I do not think the Magistrate took the view that because she rejected the evidence the charge was proved. The Magistrate directed herself to the effect that the onus rested on the prosecution to prove the elements of the offence beyond reasonable doubt.
Other Alleged Errors
I do not think that in using the word “recklessness” in the last paragraph of her reasons the Magistrate was intending to suggest that she found the defendant guilty of assault on the basis that his conduct was reckless. I think that she was making a general comment about his conduct during the entire evening.
The defendant gave evidence that he had never been convicted of any offence, and that allegations of considerable violence do not represent the type of person he was and the type of behaviour he typically exhibited. It seems the Magistrate decided to take that evidence into account on the question of penalty. The Magistrate had a discretion to take it into account on the decision whether or not to convict the defendant (Melbourne v R (1999) 198 CLR 1; R v Baker (2000) 78 SASR 103 per Nyland and Bleby JJ at 120‑121). In the circumstances of this case I do not think the Magistrate erred in taking the approach she did.
I would not uphold the defendant’s argument that the Magistrate erred in failing to consider self‑defence. It seems that that matter was not put to her. It is not a matter raised in the Notice of Appeal. It does not seem to me to be a matter which needs to be addressed since the evidence does not suggest as a possibility that the defendant consciously struck Mr Gilbert in order to protect himself.
The defendant’s counsel submitted that the finding of guilt was against the weight of the evidence. He emphasised the fact that the injury suffered by Mr Gilbert was equivocal with respect to its source, that is, whether it was a deliberate or accidental application of force. He emphasised the fact that the defendant had consumed a fair amount of alcohol. He argued that Ms Goodenough had an obvious bias towards Mr Gilbert and reliance should not have been placed on her evidence in light of a previous inconsistent statement by her regarding the defendant punching and kicking Mr Gilbert after he was injured. He emphasised that there were no independent eye witnesses called by the prosecution despite a large number of people at the party, and that there was no explanation from the prosecution for the failure to call these witnesses. The defendant’s counsel said that there was no good basis for rejecting the defence evidence as a reasonable possibility.
These are all matters which may be put in favour of the submission that the fact that the application of force was accidental could not be excluded as a reasonable possibility. However, they fall well short of support for the proposition that such a conclusion must be drawn. The Magistrate saw and heard Ms Goodenough and she placed considerable reliance on Ms Goodenough’s evidence. I have read her evidence and I do not think it can be said the Magistrate erred in accepting Ms Goodenough’s evidence and relying on it. Ms Goodenough did not drink alcohol on the night in question. During her evidence Ms Goodenough said (Ross is the defendant and Belinda is Ms Mellows):
“ARoughly Duane accused this person of stealing his alcohol. This person said “no I wasn’t. I don’t know what you’re talking about”.
Duane said “how come the bottle is going down quicker than we’re drinking it”.
QHow did the conversation end up.
ADuane sat down and then another person got involved and said something to his girlfriend.
QWho was the other person.
ARoss.
QHow did he get involved.
AIt was Ross’s friend being accused.
QWhat did Ross say.
ARoss told Belinda, I can’t remember the first bit something like “your friend better shut up or he’ll get fucked up” or “I’ll fuck him up”. Either one of the two.
HER HONOUR
QYou heard Ross tell Belinda.
AYes. He was leaning next to Belinda and I was sitting next to her. They weren’t the exact words. “Your friend better shut up or he’ll get fucked up” or “I’ll fuck him up”.
XN
QDo you recall how long you had been at the party when this situation occurred.
ANot exactly but within a couple of hours.
QDo you recall an incident which occurred in the rumpus room.
AYes I do.
QAbout how long after that initial one did this one happen.
AI don’t remember exactly but I would say roughly an hour.
QNow what happened at the rumpus room.
AEveryone was singing and content and stuff. Duane was over by the pool table and I was probably about from me to you away.
QThe pool table being in the rumpus room.
AYes. Then Ross went up to Duane and said something which I couldn’t hear because the music was so loud. Duane was saying “drop it, forget it man”. And Ross was in Duane’s ear but I couldn’t hear what he was saying.
QYou were from me to you away from them.
AYes.
QWhere were they standing.
AIn the rumpus room in the middle of the room. I think there was a pool table, I don’t recall where the pool table was or the bar.
QCould you see their faces.
AYes.
QWhat was the demeanour of Ross saying this to Duane.
ARoss looked like he was speaking firmly. I couldn’t make out what he was saying. Carly walked over. Ross was looking at Duane and Duane was looking towards the ground and I could see his lips move and hear him saying “just forget it, just drop it, let it go”. Then Carly walked over and stood next to Duane and then I couldn’t really hear anything else after that.
A little later Ms Goodenough said:
A.I turned around and saw Ross and Duane walking out the door. I saw Ross in Duane’s ear and then, I can’t recall what arm it was, and he was holding a glass object and he came up and smacked Duane in the left ear.
HER HONOUR
Q.Could you go back a couple of sentences. I’ve got ‘Ross and Duane walking out the door’ and then
A.Okay. I’m not a hundred per cent sure but I think his left was holding a glass object, I’m sure on the glass object, came up and hit Duane on the left side of the head.
XN
Q.Now can you explain the glass object.
A.It was either a bottle or it was a thicker glass that was pretty big and it was, from what I saw, when the light hit it, it was not frosted but wasn’t clear like see through glass.
Q.Could you see both hands of Ross.
A.I could see his right arm by his side.
Q.Was there anything in the other hand of Ross.
A.Not that I saw.
Q.And you said you saw it do what exactly.
A.The glass was lifted up and it broke on his face.
Q.On the left side of his face.
A.Yes.”
In cross‑examination Ms Goodenough made it clear that both men were upright at the time the glass broke on striking Mr Gilbert’s face. In cross‑examination Ms Goodenough said:
“Q.I may have put it to you before but just to be absolutely clear and give you a chance to comment on it. If I suggested to you that what actually happened was that immediately before the glass struck Duane’s head, Duane had stumbled backwards and grabbed hold of Ross’s T-shirt and pulled Ross towards Duane and that it was in that action that the two of them fell to the ground together and the glass came into contact with Duane’s head.
A.That’s not what happened.
Q.No way.
A.No.
Q.Not possible.
A.No.”
The finding of guilt is not against the weight of the evidence
Conclusions
The Magistrate has erred in placing weight on the defendant’s failure to call Mr White or other (unidentified) witnesses. I reject the other criticisms of her reasons.
Section 42 of the Magistrates Court Act 1991 relevantly provides:
“(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
...
(4)On an appeal, the appellate court may, if the interests of justice so require, rehear any witness or receive fresh evidence.
(5)On the hearing of the appeal, the appellate court may exercise one or more of the following powers:
(a)    it may confirm, vary or quash the judgment subject to the appeal and, if the court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)    it may remit the case for hearing or further hearing before the Magistrates Court;
(c)    it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.”
On the appeal under s 42 I must review the evidence and reach my own conclusions giving due weight to the fact that the Magistrate has seen and heard the witnesses. The fact that there is an error by the Court below does not mean that I am required or permitted to allow the appeal if I am satisfied that there has been no miscarriage of justice (Gazepis v Police (1997) 70 SASR 121 per Doyle CJ at 129). I am satisfied that there has been no miscarriage of justice in this case. The Magistrate was entitled to accept the evidence of Ms Goodenough and to act on it. It established the guilt of the accused.
For these reasons, I would dismiss the appeal.

[2003] SASC 94

28 March 2003