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Nature of the Appeal

7. This is an appeal brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT). The appeal is conducted as a re-hearing.

8. The Court of Appeal has outlined the principles to be applied in such appeals in Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 at [13] and [18], where the Court said: 13. Where an appeal is by way of rehearing, generally an appellant may succeed only by demonstrating material error in the decision below, whether legal, factual or discretionary: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (Allesch) at [23]. This is noting that a court on a rehearing is to conduct a real review of the evidence given at first instance and the judge’s reasons for judgment and, while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, reinforced by the High Court in Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56]. … 18. Accordingly, an appellant may succeed in an appeal under s 214 of the [Magistrates Court Act] by demonstrating that the magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed. Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision.

9. The fact finder’s advantage was expressed by McCallum CJ in Garay v The Queen (No 3) [2023] ACTCA 2 at [31]: … The assessment of credibility involves more than a lawyerly analysis of the words on the page of a transcript. The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness. Background

10. The Prosecution case is that on the afternoon of 6 October 2024 the appellant assaulted Alec Parkinson (the complainant) by punching him to the right side of his face and damaged his car in an altercation concerning how the complainant had been driving between the Barton Highway and Curran Drive in Nicholls in the ACT.

11. The complainant said that he was driving in the right hand lane and the appellant was driving his car in the left hand lane. There was another car in the left hand lane and the appellant increased his speed a little and moved in front of the complainant’s car. The complainant said that the appellant entered a turn off lane to head towards Casey while the complainant remained in the left hand lane.

12. The complainant said that as the cars pulled alongside each other, the appellant leant over and made “gestures” towards the complainant. The complainant continued in the left hand lane intending to go straight through the lights. Instead of turning off to the left towards Casey, the appellant entered the left hand lane behind the complainant. More gestures were exchanged. The appellant moved his car in front of the complainant’s and braked suddenly to the point that the complainant said that both cars almost came to a complete stop. Both cars then pulled over onto the side of the road and the appellant got out of his car. He was carrying a stick which the complainant described as being a metre long and which had a metal tip on the end of it. He thought it might be part of a walking stick.

13. The complainant said that appellant remonstrated with him about his driving, saying he had been tailgating him. The appellant then attempted to jab the complainant with the stick through the window of the car. The appellant then reached in and punched the complainant to the right side of the face on the cheek. He then stepped back and chopped the side mirror of the car with the stick, breaking it. The appellant drove off.

14. The complainant was cross examined by counsel for the appellant. He agreed that it was possible that at one or two points he may have been travelling closely behind the appellant. He denied intentionally tailgating the appellant and said he felt like he was maintaining a safe distance from the appellant’s car although said that there was traffic congestion sometimes.

15. The complainant agreed that when he went through the lights past the turn off to Casey, the appellant moved into the lane behind him and then moved up beside him and gestured to the complainant to pull over.

16. The complainant said that the appellant tried three times to jab him with the stick through the window at which point he tried to undo his seatbelt to get into the passenger’s seat.

17. The complainant denied he threated the appellant that he would “get [him] next time”.

18. Once the appellant had driven off, the complainant called the police.

19. It was suggested to the complainant that the police radio operator who took his call recorded that he said the appellant had hit his window not the mirror. The complainant denied he had said that and agreed to say that the complainant had hit the window was not true. It was suggested to the complainant and denied that he had called the police to create a story against the appellant and had falsely blamed the appellant for breaking his mirror.

20. Officer Monty attended the scene. She described the complainant as “very shaken ... a bit flustered”. She noted a little bit of redness to his cheek. When she arrived the rear casing the of side mirror was on the ground as was the mirror itself.

21. The complainant gave the police a photo showing part of the appellant’s number plate. The police officer was able to identify the appellant’s car through the registration system. The appellant was stopped by police while driving into the ACT. He was interviewed by police and the appellant gave the police the stick that the appellant said was involved in the incident. The appellant’s account of events

22. Once the police had identified the car and the appellant as the owner, it seems that because the appellant lived in NSW, the police decided to wait for him to drive into the ACT and waited for him along the way. Thus, he was stopped while driving and taken by police to a police station to be interviewed.

23. In her Honour’s reasons she set out the substance of the appellant’s interview with the police. The recording of the interview was before her Honour and was tendered on the appeal.

24. In broad terms, the appellant said that there had been an incident between him and the complainant and he said that the complainant had been tailgating him. There was an exchange of words and gestures and the appellant indicated that in some way the complainant swerved his car towards him.

25. The appellant said that he indicated to the complainant to pull over and said that when he got out of his car he was carrying a stick which he described as being more than a metre long.

26. He denied striking the complainant and damaging his car.

The Magistrate’s decision

27. Her Honour commenced by directing herself as to the burden of proof and her task of fact finding. It is unnecessary to set out at length her Honour’s directions because they are unchallenged on the appeal.

28. The challenge articulated in ground 1 is that her Honour correctly directed herself in relation to the appellant’s account of events in line with the decision in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 and De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57 but erred in its application.

29. After giving the usual Liberato direction her Honour continued and said: So first, if I believe your evidence than I obviously must acquit you, second if I have difficulty in accepting your evidence but I think it might be true then I must acquit you, third if I do not believe your evidence then I should put it to one side and nevertheless the question will remain, has the Crown, based on the evidence that I do accept, proven your guilt beyond a reasonable doubt.

30. Her Honour set out in summary the complainant’s evidence and then turned to that of the appellant given in the record of interview.

31. She said: The accused gave a record if interview in this matter. … But in essence, the account of the defendant is that there were issues on the road and in particular there was an issue with the complainant – the word “swerving” was not used, but forcing him off the road which, as I understand it, happened about Clarrie Hermes Drive, and the defendant being concerned about the manner of Mr Parkinson’s driving. And being concerned, as I understand it, that it might happen to another person, he sought that the complainant pull over and intended to speak to him, as I understand it, about what had occurred and, as I understand it, to scare him to make sure that he did not do that to another person.

32. Her Honour referred then to the submission on behalf of the appellant as to his giving the interview, that he did so voluntarily and did not know that the police had done other than stop him while driving. Her Honour referred to the submission that it was very shortly after he was stopped, he gave the interview.

33. Her Honour continued: In that recorded conversation he denied assaulting the complainant in any way. He denies, in particular, hitting his face and he denies causing any damage to the complainant’s vehicle. So he demonstrates in that record of interview how he used the piece of wood and that demonstration involved him holding that piece of wood as one might a baseball bat and gesturing as though he were going to use it, but not actually using the wood in a way that would harm someone.

34. Her Honour said: He does, I think it’s fair, give a warts-and-all account, and he does demonstrate the complainant cowering in the car, but gives a different account in terms of what overall happened aside from denying those matters. He also says that the complainant popped at him again and threatened that he would come after him essentially and find him and swore at him. I think the particular words he alleges was that the complainant told him, “I’m going to get you next time”. Ultimately as I say, the defendant is not required to do anything. It would have been open to him to give a no-comment record of interview or decline to participate in an interview, but he has chosen to participate here.

35. Her Honour then turned to the complainant’s evidence, the substance of it and the way in which it was given. She concluded that he was “… an honest and impressive witness and his evidence generally did have a ring of truth to it”.

36. Her Honour continued: I have an account also from the defendant. I accept that the defendant engaged in an account in circumstances where he did not have much notice and he did not have to give the account. I accept he gave a warts-and-all account and in some respects admitted aspects that were unfavourable to him which, in my view, would be consistent with candour. He did engage in what’s described as a free narrative. He accepted, as I say, unfavourable aspects, for example the way he held a baseball bat and he gestured at the complainant.

37. Her Honour turned to the evidence of the police including photographs taken by the police of the complainant and her Honour found that those photographs demonstrate slight redness on the cheek of the complainant. She also referred to the photographs showing the damage to the complainant’s car side mirror. Her Honour said she regarded as significant the evidence of the attending police officer that she saw the casing of the side mirror and the glass from the mirror on the side of the road. Her Honour concluded that the significance of the police officer’s evidence about the presence of the casing and glass on the roadside is that the likely explanation for it is that the mirror was damaged at the location. Her Honour referred to the complainant’s account that the mirror was not damaged before, he said, the appellant damaged it.

38. She said: Ultimately, both parties are in agreement that the defendant essentially was involved in causing the complainant to pull over off the road. The defendant (sic complainant) gave an account that the accused had braked in front of him. It is agreed, as I understand it on the evidence of both parties, that he gestured to pull over. It is also agreed that the defendant got out of his car and walked up to the car of the complainant. He agrees that he took a piece of wood with him. He agrees he was angered by what had happened. Ultimately, when I consider all these matters in totality, I am persuaded that the complainant was an honest and impressive witness and that his evidence is corroborated by the photographs that were taken. … I am also of the view that the circumstance in which the rearview mirror were found and were ultimately then smashed were consistent with the account that the complainant has given. I ultimately reject the account given by the defendant. In my view, he was at the time, angry enough about what had occurred that he gestured to the complainant to pull over and he exited the car armed with a piece of wood. And in those circumstances, I do consider the likely outcome was some violence and I am prepared to accept even to that high standard of beyond reasonable doubt in circumstances where there is an exculpatory record of interview that the complainant’s account is so strong in relation to those matters and supported by that corroborative material that I am satisfied beyond reasonable doubt and I reject the account of the defendant necessarily. In doing so, it does not give rise to a doubt in my mind, I don’t think – it may be true – but with a focus on the evidence from the complainant and the other evidence I am satisfied that both offences are made out. The argument on the appeal

39. The thrust of the argument on the appeal is that while her Honour quite correctly identified the principles which are to be applied in line with Liberato, a reading of her reasons as a whole demonstrates that she did not in fact consider the appellant’s account of the events consistently with those principles.

40. First, it was contended that the order in which the Magistrate considered the evidence and made findings “reversed the sequence” of considerations required by Liberato. In amplification of this contention, it was argued that in effect, her Honour determined the issue of the appellant’s credibility by comparing his evidence with that of the complainant.

41. The issue of whether Liberato operates to impose a sequence of decision making was considered in Phillips (a pseudonym) v Burton [2024] ACTSC 127. In that case, the complaint on appeal was that the Magistrate had first considered the complainant’s evidence, finding it reliable then later in the reasons turned to consider the appellant’s evidence which was found to be unreliable.

42. The argument advanced was that the Magistrate would have to first reject the appellant’s evidence before moving to consider the prosecution case.

43. His Honour Berman AJ said: 18. It is in the nature of a written and oral judgment that findings have to be explained in some sort of order, they cannot all be explained at exactly the same time. It is often the case that findings as to the reliability of evidence are made in the same order in which the evidence was given. But that does not mean in this case that the Chief Magistrate found that Miss Edwards’ evidence was credible without any consideration being given to the evidence of the appellant. 19. It could scarcely be the case that her Honour was required to consider the reliability of the appellant’s evidence first, without any consideration being given to the evidence in the prosecution case.

44. I do not accept the submission that the proper application of Liberato calls for a particular sequence of events.

45. Nor do I accept the submission that in dealing first with the credibility of the complainant then moving to consider, and rejecting the account of the appellant was, in effect, the Magistrate comparing the evidence of the comp and the appellant and determining which she preferred. First, immediately before she directed herself in Liberato terms, the Magistrate said: It is not enough for me to have some preference for the prosecution evidence. To find you guilty I must be satisfied beyond reasonable doubt of all those elements of the prosecution case. …

46. Secondly, the structure of her Honour’s reasons show that in assessing the appellant’s evidence she took into account all of the evidence in the case as it bore on that determination, including the strength of the complainant’s evidence together with the evidence corroborating it. It cannot be maintained and it would fly in the face of common sense to suggest that the credibility of the account of events given by an accused person must be assessed in a vacuum. As Berman AJ said, again in Phillips at [20] 20. In its written submissions, the respondent puts the matter very well: That the rejection of the appellant’s evidence, in part, occurred as a consequence of the magistrate’s acceptance of the prosecution case does not reveal a misapplication of the burden of proof, or an error in approaching her task. Rather, it reflects the reality that the evidence of the prosecution witnesses was diametrically opposed to that of the appellant who denied the offending had occurred. Her Honour was obliged to consider the whole of the evidence before making her findings. Her Honour’s acceptance of the prosecution case required rejection of the appellant’s evidence since they could not stand together.

47. Next it was argued that her Honour, having rejected the appellant’s evidence, moved directly to a conviction without considering whether the prosecution case had been proved beyond reasonable doubt. I do not accept this proposition. Her Honour rejected the appellant’s account saying: I ultimately reject the account given by the defendant. In my view he was, at the time angry enough about what had occurred that he gestured to the complainant to pull over and exited the car with a piece of wood. And in those circumstances, I do consider that the likely outcome was some violence.

48. Her Honour then turned to the prosecution case and said: …I’m prepared to accept even to that high standard of beyond reasonable doubt in circumstances where there is an exculpatory record of interview and the complainant’s account is so strong in relation to those matters and supported by corroborative material that I am satisfied beyond reasonable doubt and I reject the account of the defendant. In doing so, it does not give rise to a doubt in my mind.

49. Thus, I do not accept the contention that her Honour having rejected the appellant’s evidence did not then consider the prosecution case.

50. Finally, the Magistrate’s final comment attained significant importance in the appellant’s argument. She said: I don’t think -it may be true – but with a focus on the evidence from the complainant and the other evidence, I am satisfied that both offences are made out.

51. The Appellant argued that this demonstrates that her Honour considered the appellant’s account of events may be true and, that being the case, she was required to acquit the appellant.

52. Two observations must be made. The meaning of the words sought by the appellant depends on the break between the words “I don’t think” and “it may be true” and rests on the transcription of what her Honour said and the insertion of the dash between the two phrases. It is, in my view, equally likely that she said:” I don’t think it may be true”. In any event, no audio recording of her Honour’s reasons was provided and the emphasis or stress on her words remains as written on the page.

53. However, those two words read at the end of her reasons where just a few sentences beforehand she had rejected the appellant’s account of events having regard to all of the evidence before her, cannot and in my view do not bear the meaning attributed to them by the appellant.

54. Further support for the proposition that her Honour’s conclusions support a finding that the appellant’s account may be true was said to be in the words she used when describing the appellant’s recorded interview with the police. I accept he gave a warts-and-all account and in some respects admitted aspects that were unfavourable to him which, in my view, would be consistent with candour. (Emphasis added.)

55. The Crown submitted and I accept that the answer to whether the words were, in fact, consistent with candour is answered towards the end of her Honour’s reasons where at page 65 she rejects the appellant’s account of events.

56. The appellant has not established error and for the above reasons the appeal will be dismissed.

Orders

57. The orders of the Court are: (1) The Appeal against the convictions entered by Magistrate Burt on 30 July 2025 in relation to CAN 822 of 2025 and CAN 823 of 2025 is dismissed. (2) The convictions are confirmed.

I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace.

Associate: Date: