Justices Act 1959, s 107, s 31(1), s 31(2)

Evidence (Children and Special Witnesses) Act 2001, s 8(1)

Carlsen v Wilkie [2018] TASSC 1

Charisteas v Charisteas [2021] HCA 29

Cuthbert v Coates [2018] TASSC 7

Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337

Hofer v The Queen [2021] HCA 36, 274 CLR 35

McCarthy v Xiong [1993] TASSC 48

R v Griffis (1996) 67 SASR 170

Wickham v Cole [1957] TASStRp 10, Tas SR 111

Judgment Number: [2024] TASSC 53

1. On 14 August 2023, Magistrate Cure heard a complaint which charged the respondent with one count of assaulting the applicant. The respondent had pleaded not guilty. At the conclusion of the contested hearing, her Honour held that the charge had not been proved and dismissed the complaint. The applicant now moves this Court to review that order, pursuant to s 107 of the Justices Act 1959.
2. There is no question that the applicant has standing to bring this motion. As the person alleged to have been assaulted by the respondent, he is clearly a "person aggrieved" by the magistrate's decision to dismiss the charge. McCarthy v Xiong [1993] TASSC 48.
3. The prosecution case was that the assault had occurred during a confrontation between the two men which took place at a rural property occupied by a female friend of the applicant, Ms Chenery. The respondent was at that time Ms Chenery's husband. There had been a breakdown of the marriage, and consequent proceedings between those parties in the Federal Circuit and Family Court (the FCFC). An order had been made in those proceedings which permitted the respondent to attend the property on the day of the alleged assault between the hours of 9am and 5pm for the purpose of collecting his personal property. The order provided that Ms Chenery was to vacate the premises during that time but the applicant was permitted by the order to remain at the property as her agent. The order did not provide the applicant with any express powers, or specify the purpose of allowing him to remain at the property apart from acting as Ms Chenery's agent, but he gave evidence that he believed that his primary responsibility was to ensure that the respondent did not take property which did not belong to him.
4. It was common ground on the evidence that the respondent arrived at the property precisely at 9am on the relevant day. The applicant was present and Ms Chenery had not, by then, left the property, although it was her intention to do so. There was evidence that she in fact opened the locked gates at the front of the property after the respondent's arrival to facilitate his entry. After entering the property, the respondent drove his motor vehicle along a lengthy access road which leads to the residence. It is clear that he stopped the vehicle at some point along the road before reaching the residence, although there was dispute as to the precise location at which this occurred and his reason for stopping the vehicle. The applicant asserted in evidence that it was his belief that the respondent did this in order to block Ms Chenery's ability to drive her car out from the location where it was parked at the side of the access road, and thereby stop her from leaving the property. The respondent agreed in evidence that he had stopped in a position which prevented Ms Chenery from leaving, but only did so to provide her with an opportunity to read a text message which he had sent to her enquiring as to the location of the keys to the residence. He said that his purpose was to avoid inconvenience to her, by ensuring that she received and read the message before she left. The magistrate accepted that the location of his stationary vehicle did prevent Ms Chenery from leaving the property, but also accepted the respondent's explanation for stopping there.
5. The applicant's evidence concerning the assault is that from his position at the front of the house, he saw the respondent stop his vehicle on the access road. He concluded that the respondent's purpose in stopping there was to prevent Ms Chenery from leaving the property. He believed that the respondent was deliberately blocking her in order to "escalate the situation". He decided that he needed to talk to the respondent about his conduct and he walked directly to the driver's side of the respondent's vehicle for that purpose. He saw that the respondent was angry, and said that the respondent made a rude gesture towards him with his finger. He said that he walked to the front of the vehicle so that the respondent would have to look at him. However, in cross-examination, he also agreed that he had knocked lightly on the driver's side window before doing so, but denied that he had bashed it with any degree of force.
6. The applicant said that while he was standing in front of the vehicle, the respondent drove the vehicle into him "at about walking speed or maybe slightly faster". It made contact with both legs "an inch and a half, two inches above my knees". This was the act of assault particularised in the complaint, that is "unlawfully assaulted (the applicant) by striking him with your motor vehicle." The applicant's evidence was that the consequence of being struck by the motor vehicle was that he "flipped onto the bonnet" where he took hold of the bull bar. The vehicle was still moving at this point and after it had driven another three or four metres, it stopped abruptly. He said that when this happened, he "pivoted right back up onto my feet", still holding the bull bar. He said that he was shaken and experienced pain in his knees. He later saw his GP about this. However, the prosecution did not present any medical or photographic evidence in respect of the asserted injury.
7. The respondent gave evidence. His version of these events was that after he stopped, the applicant approached from the direction of the house, thumped on the driver's side window, said something that he could not hear, and then "went around to the front of my vehicle, climbed up on the bull bar, jumped up and down four or five times and then threw himself on the bonnet". He denied that his vehicle was moving at this point, or that at any time he drove his vehicle into the applicant. He did agree however, that after the applicant had placed himself on the bonnet, he moved the car forward about two metres and then "put the brakes on" which caused the applicant to slide off the bonnet.
8. The only other witness to give evidence was Ms Chenery. Her version was that she had a limited view of the confrontation from her location seated in the driver's seat of her car. She saw the applicant talk to the respondent through the driver's side window. He then walked towards the front of the vehicle and "the next thing is I see him then on top of his bonnet". She then saw the car move and the applicant fall to the ground. She was asked how it happened that he ended on top of the bonnet and her answer was "yeah ...the car moved." She saw him land on top of the bonnet. She denied a suggestion put to her in cross-examination that her view of the relevant confrontation was obscured because of the location of her parked car. She also denied the assertion that she had made up the story in collusion with the applicant in order to assist her family law dispute with the respondent.
9. At the conclusion of the evidence, the magistrate provided ex tempore reasons for her decision to dismiss the charge. Her Honour noted that in order to find the charge proved, she was required to be satisfied beyond reasonable doubt that the respondent deliberately struck the applicant with the motor vehicle. She expressed reservations about the reliability of the evidence of the applicant and Ms Chenery. Her Honour concluded that she was unable to exclude the possibility that the respondent's account was correct and found that she was "left with a reasonable doubt as to whether the account given by the prosecution witnesses can be accepted beyond reasonable doubt". Her Honour noted that if the matter had happened as alleged by the applicant, it was probable that the applicant would have suffered injury but observed that there was an absence of material which corroborated the existence of any such injury.
10. The grounds of review were finalised at a directions hearing conducted prior to the hearing by Porter AJ. Those grounds are as follows:
    1. The magistrate erred in failing to apply the rule in Browne v Dunn and failing to properly deal with the consequences of breaches of the rule on the respondent's part.
    2. The magistrate was biased or there was an apprehension of bias against the applicant and the witness Yen Wah Chenery.
    3. The finding of not guilty was not reasonably open, in that no reasonable view of the evidence could the magistrate have failed to be satisfied beyond reasonable doubt as to guilt.
    4. The magistrate, in making an assessment of the applicant's evidence, failed to take into account the difficulties the applicant has in expressing himself due to a disability from which he suffers.

1. It is clear from the transcript that there were, in fact, two breaches of the rule in Browne v Dunn (1893) 6 R (HL) 67; (1893) 6 ER 67. Both were attributable to the defence, and were expressly referred to and discussed by the magistrate. The first arose from defence counsel's failure to put to the applicant in cross-examination the respondent's assertion during his evidence-in-chief that the applicant had voluntarily jumped on the bonnet of his vehicle. Defence counsel had, during that cross-examination, dealt with this aspect of the chronology by asserting that the respondent's vehicle was forced to stop because the applicant was standing in front of it, and then went on to put to the applicant that he was making a false allegation, without raising the allegation about jumping onto the bonnet. The false allegation was not specified but it is clear enough that it was a reference to the applicant's evidence that the respondent had deliberately driven his vehicle into him. It should be noted that the allegation that the applicant had jumped onto the bonnet of the respondent's vehicle was also not put by defence counsel to Ms Chenery.
2. The magistrate noted this breach immediately. As soon as the respondent gave the relevant evidence, the following exchange took place between the magistrate and defence counsel:

HER HONOUR: No, no, no. You don't have to disclose those. They're privileged. It's just that you haven't put this to the-

MR KITTO: No, no. I didn't - I have not put it to Mr de la Motte that it occurred that way.

MR KITTO: Yes. I suppose, your Honour, I took the view that he wasn't being truthful.

HER HONOUR: Well, you've got to be careful with Browne v Dunn.

MR KITTO: Yes. I understand that and if he's going to deny what I put to him as what-

HER HONOUR: Dangerous. All right. Thank you. That's all right. What's done is done."

1. The second breach relates to the reason why the respondent stopped his car, prior to the alleged assault. In evidence-in-chief, defence counsel asked his client to explain this:

"MR KITTO: (Resuming) Mr Chenery, please tell her Honour why you stopped?.....Okay. After the gate had been unlocked at 9.04 or so Mrs Chenery walked away. When she was clear of the driveway I drove forward and I had a thought and I sent an SMS. I stopped to send an SMS because I wanted to know where the keys were to a particular key safe and Mrs Chenery has a bad habit of not answering SMSs and I thought, 'If I stop here she will obviously read it before she drives off' and if she's got the keys she could then return to the house and unlock the key safe."

1. Immediately after this answer, the magistrate enquired as to whether the respondent still had the message on his phone. He did, and it was shown to the magistrate at her Honour's request and then to the prosecutor and defence counsel. The status of the message was then dealt with in an unsatisfactory way. Defence counsel declined to tender the message, and it was not tendered by the prosecutor. The magistrate responded by saying "Alright. Ok. I can't run your case for you". However, she had clearly seen the message and it can be inferred that it corroborated the respondent's evidence. It is also clear from her Honour's reasons, that she took her view of the message into account when making her decision. The prosecutor did not challenge the respondent's description of the message during cross-examination, but did put to him that he had sent it later than he claimed. The respondent relied on the text of the SMS itself to establish the time it was sent, but the prosecutor indicated that she had not seen it because it had not been tendered in evidence. The magistrate then invited defence counsel to return the phone to the witness and asked him to state the time that the message had been sent by reference to it. The prosecutor seems to have accepted the defendant's response in respect of the time but the message was still not placed in evidence.
2. Of course, the use by the magistrate of that evidence is not a complaint reflected in the grounds of review. The point in respect of this ground is that the exchange of messages was not put to Ms Chenery. In fact, defence counsel had put to the applicant that the reason the vehicle stopped was because the applicant was standing in front of it, which is inconsistent with the respondent's evidence.
3. In her reasons for dismissing the charge, the magistrate referred to both breaches, but indicated that she did not consider them to be significant. Her Honour noted that the allegation concerning the applicant jumping onto the vehicle's bonnet should have "been squarely put but there was no point inviting the prosecutor to reopen the case and recall him (the applicant) because he has been sitting here listening to it. If he had been out of the room it might have been a different situation but he has listened to the whole thing, he has heard the exchange and I don't think it will assist me to have him respond to it now".
4. The breaches of the rule are clear enough. However, the applicant can only succeed on this ground if he establishes error on part of the magistrate in the way that her Honour dealt with one or both of those breaches. Sometimes, the effect of such a breach can be rectified procedurally, usually by permitting the witness to be recalled and given an opportunity to respond to the relevant allegations. In this case, in respect of both breaches, although the magistrate was clearly well aware of the potential for recall, neither the prosecutor nor defence counsel requested that she take that course. As already noted, the magistrate herself considered recalling the applicant but declined to do so.
5. It has not been suggested to me that the magistrate should have drawn any particular inference from the relevant breaches. In Hofer v The Queen [2021] HCA 36, 274 CLR 35, the High Court made it clear that although the rule in Browne v Dunn applies in criminal cases, drawing a factual inference adverse to the credit of the accused, in particular recent invention, from the mere fact that the accused's counsel has failed to comply with the rule is flawed, dangerous and essentially impermissible. It is relevant to an assessment of the evidence of the prosecution witness because of the unfairness which arises from the lack of opportunity to comment on the relevant point but it is only in exceptional circumstances that a court should go further and draw an inference adverse to the credibility of an accused. Such exceptional circumstances would be "in the clearest of cases, where there are clear indications of recent invention". Per Kiefel CJ, Keane and Gleeson JJ, with whom Gageler and Gordon JJ agreed on this point. This conclusion arises from the obvious, that there can be many reasons, other than recent invention, which explain a failure to comply with Browne v Dunn, but being forced to provide an innocent explanation in order to rebut an allegation of recent invention can lead to unfairness and unfair prejudice. Hofer was in fact concerned with the prejudice arising from cross-examination of the accused by the prosecutor suggesting recent invention on the basis of a breach of Browne v Dunn during cross-examination of a prosecution witness, but in allowing the appeal, the Court relied on the reasoning discussed above. In this case, it should be noted that the prosecutor, correctly, did not raise the Browne v Dunn breaches with the respondent during cross-examination.
6. There is no question that the aspects of the respondent's evidence to which this ground relates were such that the rule should have been complied with during cross-examination of the applicant and Ms Chenery. The magistrate was entitled to consider that they had been treated unfairly by not being given an opportunity to respond to the allegations in question. However, it would not have been open to the magistrate to reason from these breaches in a way that affected her view of the credibility of the respondent. Further, it was appropriate for the magistrate to place limited significance on the breaches, as she did. In relation to the first breach, although the detail of how it was said that the applicant came to be on the bonnet of the vehicle was an important part of the respondent's version, and it clearly should have been put to the applicant by defence counsel, the fact of the matter is that defence counsel had squarely challenged the applicant's credibility and had in fact put to him that he had colluded with Ms Chenery. This assertion of collusion was also put to Ms Chenery. In relation to the SMS text message, although the manner in which this evidence was dealt with was unsatisfactory, the prosecutor seems to have accepted that the SMS message did in fact exist. It is difficult to see how any response from Ms Chenery could have thrown further light on this evidence. In any event, the actual reason for the respondent's decision to stop the vehicle was only of limited assistance in addressing the applicant's motive for approaching the vehicle, and his actions after he did so. The applicant's belief about why the respondent had stopped his vehicle was clear enough, and it matters little whether his belief was correct or not. The magistrate considered these issues, but in the end correctly focussed on the critical issue, that is, whether it had been proven beyond reasonable doubt that the respondent deliberately drove his vehicle at and came into contact with the applicant. Her Honour's assessment of the credit of the witnesses was relevant to this, of course, but the breaches of the Browne v Dunn rule was not considered to be significant. In my view, this was the correct approach.
7. I cannot detect error in the magistrate's approach to these breaches. It follows that ground one is without merit.

1. This ground is based on an assertion of actual or apprehended bias on the part of the magistrate. Although the ground asserts bias against both the applicant and Ms Chenery, the argument presented to me was primarily concerned with alleged bias towards Ms Chenery, which reflected in the magistrate's approach to the case generally, and manifested in her adverse view towards the evidence of both the applicant and Ms Chenery, and favourable treatment of the evidence of the respondent. The applicant's argument was that this bias arose primarily from her Honour's prior knowledge of the relationship conflict between Ms Chenery and the respondent, and her attitude towards Ms Chenery's role in that conflict. The applicant relies on comments made by the magistrate during the hearing concerning her prior knowledge of the conflict, as well as allegations that the magistrate exhibited hostility towards Ms Chenery and treated her unfairly during her evidence.
2. It is true that the magistrate, during the hearing, referred to her prior knowledge of the conflict between the respondent and Ms Chenery, and the animosity between them. For example, during Ms Chenery's cross-examination, her Honour interrupted defence counsel noting that "It is clear to me they are at war with each other and have been for years". However, it should be noted that the interruption was in relation to defence counsel's pursuit of Ms Chenery's motivation in locking the front gate with a chain. The assertion was that she had done so in order to frustrate the FCFC order. Her Honour was clearly indicating that even if this was so, it was of little relevance given the history of animosity between the parties, and that it was necessary for defence counsel to "focus on these allegations". This was obviously an attempt by the magistrate to bring defence counsel to the critical events concerning the assault. In another comment during the reasons for her decision to dismiss the charge, when considering the credibility of the applicant and Ms Chenery, her Honour noted that "there really is a considerable degree of animosity between these parties". The magistrate then commented that her observations of "both witnesses", the applicant and Ms Chenery, left her "with some concerns about the version of events". Of course, the animosity noted by her Honour was not necessarily reliant on pre-existing knowledge, it had been canvassed in some detail by defence counsel during the hearing, and was in fact relied upon by him to support the allegation of collusion against the applicant and Ms Chenery.
3. The applicant submitted affidavits by him and Ms Chenery. Both affidavits contained factual assertions, but during the directions hearing Porter AJ had directed that the affidavits could be used only for the purpose of submissions and not as evidence. That position did not change during the hearing of the motion. In her affidavit, Ms Chenery describes her perception of the magistrate's attitude towards her, and her reaction to that attitude. She asserts that she was, and is, suffering from a number of conditions, including complex post traumatic disorder, along with dissociation trauma, anxiety and depression, which she says have arisen from ongoing and prolonged family violence. She claims that the magistrate's treatment of her, which she perceived as the manifestation of bias against her, left her feeling intimidated and traumatised and this affected her capacity to give evidence effectively. She points out a number of passages in the transcript which are said to support the claim that she was treated unfairly and with hostility by the magistrate.
4. The factual allegations concerning Ms Chenery's underlying health have not been tested because that evidence was not admitted for the purpose of the review. However, even assuming the acceptance of all that she has said in her affidavit, this would not, of itself, demonstrate actual bias on the part of the magistrate. It is necessary to examine the passages from the transcript relied upon by Ms Chenery to gauge the extent of any hostility or unfair treatment of her by the magistrate. Any comments by the magistrate must be assessed having regard to the conduct and course of the case generally, and it must also be borne in mind that Ms Chenery's perception of such comments may be influenced by their impact on her, given her underlying health.
5. I have examined each of the passages referred to by Ms Chenery in her affidavit. In my view, there is nothing in those passages, or indeed in the transcript generally, which supports the allegation of actual bias on the part of the magistrate, or Ms Chenery's allegation that she was treated unfairly by, or was subject to, hostility from the magistrate. Ms Chenery complains about the magistrate's refusal to use an affidavit by her, but this decision was entirely appropriate. Ms Chenery had filed the affidavit prior to the hearing. However, at the hearing, neither party placed any reliance upon this document and did not ask the magistrate to accept it as evidence. The magistrate raised its existence with the parties at the outset of the hearing, and determined with their agreement that she would not read or have regard to it. Clearly, the magistrate acted with appropriate caution and transparency by raising her knowledge of the existence of the document with the parties. Ms Chenery also makes a number of complaints about how she was treated by the magistrate during her evidence. It is true that she was asked by the magistrate to keep her voice up, but otherwise my reading of the transcript reveals that she was treated with appropriate courtesy and respect. The magistrate intervenes from time to time to clarify aspects of her evidence, but this was common to all witnesses, and in any event, is completely appropriate and indeed necessary to ensure a proper understanding of the evidence, and hence, a fair trial.
6. It may well be that Ms Chenery's subjective perception of these exchanges with the magistrate is as she says, but this does not turn them objectively into something which they are not. For example, Ms Chenery claims that at the conclusion of her evidence, the magistrate asked her to leave "repeatedly and rudely", that this is indicative of racism and discrimination and "sounds like she does not want to see my presence ever in the courtroom". The transcript reveals that there is no justification whatsoever for these claims. At the conclusion of Ms Chenery's evidence, the magistrate says "All right. Thank you. You're free to go. Thank you very much". The prosecutor then closes the prosecution case, and the magistrate immediately enters into discussion with the representatives about the future progress of the case. During this discussion, she obviously observes that Ms Chenery has not left the witness box. The magistrate then says:

"You can go. You can leave. Thank you very much. Sorry, could you help her, witness assistance".

1. This is the extent of the exchange. What was said was entirely appropriate, and does not support the claims made by Ms Chenery.
2. The applicant also relies on what he asserts is favourable treatment of the respondent to support the claim of actual bias. However, his claims in that regard really amount to nothing more than dissatisfaction with the magistrate's decision. These claims cannot and do not suggest actual bias on the part of the magistrate.
3. The claim of apprehended bias seems to rely entirely on the magistrate's comments concerning her knowledge of the pre-existing conflict between Ms Chenery and the respondent. Apprehended bias will be established "if a fair minded lay-observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide". Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337. The fair minded observer must, of course, be attributed with sufficient understanding of the circumstances of the case to make a reasonable judgment and there must be a logical connection between the circumstances relied upon to create apprehended bias and the feared deviation from impartial decision-making. Charisteas v Charisteas [2021] HCA 29. In this case, it is impossible to conclude that a fair minded observer would take the view that the magistrate would not bring an impartial mind to the resolution of this case, simply because of her prior knowledge of conflict between Ms Chenery and the respondent. As I have already noted, the existence of this prior conflict was obvious, and evident from the information put before the Court by the parties during the hearing, including the FCFC order itself. At no time did the magistrate purport to draw any conclusions about the conflict, apart from its existence. It is obvious that the magistrate was well aware of her responsibility to determine the case on the evidence before her, and neither party made an application that she disqualify herself.
4. In my view there is no merit in this ground.

1. In Cuthbert v Coates [2018] TASSC 7, I summarised the principles applicable on a review based on a ground that the magistrate has made an incorrect decision:

"The test applicable to a review of a magistrate's findings of fact upon the evidence, pursuant to s 107 of the Justices Act 1959, is not in dispute. That test was succinctly stated by Crawford CJ (with whom Blow and Porter JJ) agreed, in Phillips v Arnold [2009] TASSC 43, 19 Tas R 21:

'A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] TASStRp 9; [1963] Tas SR 69 at 81; Benson v Rogers [1966] TASStRp 13; [1966] Tas SR 97 at 99; Richardson v Shipp [1970] TASStRp 6; [1970] Tas SR 105 at 117.'

The reviewing court is not entitled to 'weigh the evidence and reach its own conclusions', Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454 per Porter J. The only question for me is whether the conclusion reached by the magistrate was reasonably open on the evidence."

1. In this case, in order to uphold this ground, I would need to be satisfied that no magistrate acting reasonably could have failed to be satisfied of guilt beyond reasonable doubt. Further, in a case such as this, which depends on the magistrate's assessment of the credibility of the witnesses, I would need to pay appropriate respect to the advantages enjoyed by the magistrate in seeing and hearing the witnesses as they gave their evidence.
2. The magistrate's reasoning and decision focused on the case defined by the particulars alleged in the complaint, that is that the respondent assaulted the applicant by driving his car into him and striking him on the legs. In order to find the respondent guilty of this charge on the basis of that particular, it would have been necessary for the magistrate to be able to exclude as a reasonable possibility the respondent's version of the confrontation between the two men. Taking into account all of the evidence, it was clearly open to the magistrate to find that she was not able to reach that decision. The applicant's arguments in respect of this ground really amount to no more than the bare assertion that he and Ms Chenery were telling the truth and should have been believed over the respondent. He does refer to the attendance of an ambulance after the incident and his attendance on his doctor after it to support his claims of injury, but this evidence was not placed before the magistrate.
3. The magistrate did not make a positive finding of credit in relation to any witness, and expressed her reservations in relation to the credibility of the applicant and Ms Chenery. She was entitled to do so. In the light of this, it is entirely understandable that she would have experienced a reasonable doubt in respect of guilt based on the applicant's version.
4. However, before concluding my consideration of this ground, it is necessary to consider an alternative bases of liability proposed by the prosecutor during the hearing. During the course of her cross-examination of him, the respondent conceded that while the applicant was on the bonnet of his vehicle, he drove forward "about two metres maximum, put the brakes on and he slid...off the bonnet, landed on his feet and walked away." The prosecutor confirmed with the respondent that he did drive forward with the applicant on his bonnet but did not seek any further detail. Both the applicant and Ms Chenery had given evidence that this had taken place. The applicant's evidence on this point was largely consistent of that of the respondent, although the distance over which the vehicle travelled was longer, three to four metres, and the speed greater, eight to ten kilometres per hour. However, according to the applicant the result was the same. He said "he jammed on his brakes and I pivoted right back up on to my feet and I was still holding the bars - the top bars specifically".
5. He was not challenged by defence counsel as to the detail of this evidence.
6. Ms Chenery also gave evidence that the vehicle went forward when the applicant was on the bonnet. The only difference between her evidence and that of the applicant and the respondent, is that she said that when the car stopped the applicant "was basically flung off" onto the ground.
7. In discussion with the prosecutor prior to the decision, the magistrate raised the possibility of a finding of assault based on "the possibility of him driving forward with someone on his bonnet". The prosecutor responded by saying "In my submission, even on his version, he has committed an assault". The discussion then moved to a different topic and did not return to this issue. It is a reasonable assessment of her Honour's reasons that she based her decision on the pleaded particular of assault and did not deal at all with whether the respondent's concession concerning driving forward with the applicant on his bonnet constituted an alternative basis of liability.
8. Section 31(1) of the Justices Act 1959 provides that an objection shall not be taken to a complaint in respect to a variance between it and the evidence in support of it. However, s 31(2) provides that notwithstanding that provision, where a defendant appears to have been prejudiced by a variance, the magistrate shall, unless the complaint is amended, dismiss the complaint. An amendment is permissible in order to, among other things, cure a defect imposed by a variance between the evidence and the complaint.
9. It is well established that a difference between particulars and evidence can amount to a variance for the purposes of this provision. However, the cases also make the point that the purpose of s 31 "is to avoid justice being defeated and to enable amendments to be made to avoid the need to dismiss charges because of unmeritorious technical objections to the form of charges". Per Wood J in Carlsen v Wilkie [2018] TASSC 1 applying comments of Burbury CJ in Wickham v Cole [1957] TASStRp 10, Tas SR 111. Her Honour went on to say:

"The discretion to amend must be exercised judicially. An amendment of substance could not be allowed without giving a defendant a full opportunity to answer the newly framed charge, and a fundamental amendment should be made at the commencement of proceedings: Wickham v Cole at 118."

1. In this case, in actual fact, the magistrate did not amend the complaint and was not asked to do so. A reference by the prosecutor to an alternative basis of liability was a bare observation, which was not followed by the appropriate procedural application. In any event, had her Honour been asked to amend the complaint, it would not have been appropriate for her to do so. The case had been presented by the prosecution on the basis of the pleaded particular of assault, which was completely different to the alternative basis suggested by the prosecutor, and an amendment after the close of the evidence, would have deprived the defendant of "a full opportunity to answer the newly framed charge". This would have resulted in real and unfair prejudice. Accordingly, the opportunity does not arise to consider the case on the alternative basis of liability potentially arising from the respondent's concession that he drove his motor vehicle forward while the applicant was on the bonnet.
2. There is no merit in ground 3.

Ground 4 - The effect of the applicant's disability

1. The evidence as to the applicant's disability, and its impact on his ability to express himself, particularly in Court, was limited, both before the magistrate and before me. During the hearing, it seems that the magistrate became aware that the applicant has a condition which she described as "Tourette's Syndrome". It is not clear from the transcript as to how the magistrate acquired this knowledge. Further, no evidence was presented by either party to confirm the existence of the disability or inform the magistrate about how this condition might affect the applicant's capacity to give evidence. The applicant says to me that he was not able to give evidence effectively and, in any event, the magistrate did not have appropriate regard to the difficulties he had in doing so. However, the applicant provided me with little detail as to the actual impact in this regard.
2. There is no doubt that the magistrate was aware that the applicant may have been experiencing difficulty in expressing himself. Her Honour made a number of comments about that question and, in fact, took the time to listen to the applicant's evidence again as it was recorded by the Court's recording equipment, over the lunch adjournment. Her Honour explained that she did this because she "had a great deal of difficulty understanding him. I didn't know at the outset that he has Tourette's Syndrome. I suspect that may have been one of the reasons there was a lot of unsolicited responding which obviously is probably to do with that".
3. It is the experience of the courts that many witnesses have difficulty communicating evidence. Sometimes, this occurs because of disability. A court must, of course, take any such difficulty into account when assessing the credibility and reliability of the evidence. However, it is a reasonable observation that under the common law, the weight attributed to a witness's capacity for communication, and any difficulties associated with it, was essentially left to the judgment of the fact finder. In recent times, legislation has been introduced in an attempt to ameliorate disadvantage and vulnerability experienced by witnesses as a result of various reasons, including disability. This legislation seeks to balance the needs of a witness with the rights of the accused in a way that does not prejudice a fair trial. See R v Griffis (1996) 67 SASR 170 per Cox J. An example is s 8(1) of the Evidence (Children and Special Witnesses) Act 2001, which provides that a witness who "by reason of intellectual, mental or physical disability, ... is, or is likely to be, unable to give evidence satisfactorily in the ordinary manner" can be declared to be a special witness. Upon such declaration, the court can make various orders designed to facilitate and support the person while giving evidence. It is a reasonable assessment of the orders available under this provision that while they can reduce the trauma associated with giving evidence in the normal way in open court, and in that way assist the witness to give evidence, they do not directly deal with a diminution in the ability to communicate arising from a disability. However, that specific issue is the subject of provisions introduced into the Act in 2020. In particular, the provisions contained in Part 2A now provide for the appointment of a witness intermediary in respect of the witness, in cases where the judge considers that that will assist the proceeding. The focus of the assistance provided by an intermediary is in respect of a communication need, which is defined as arising "if the quality or clarity of evidence given by the witness may be significantly diminished by the witness's ability to understand, process or express information." However, those provisions only apply to a "specified proceeding". The charge in question does not fall within the statutory definition of such a proceeding, and hence those provisions were not applicable to this case.
4. In this case, in any event, neither party applied for a declaration that the applicant be declared a special witness, or for the appointment of an intermediary. Her Honour was essentially left, as the fact finder, to assess the evidence doing the best she could in the circumstances, which included taking into account the limited information provided to her as to the applicant's disability. I have carefully reviewed the whole of the transcript. It is clear that once informed of the disability, her Honour did in fact take steps to account for it, for example listening to the evidence again over the lunch adjournment. Further, the transcript does not overtly demonstrate a communication need of such severity that it significantly impacted on the applicant's capacity to give evidence satisfactorily. Ultimately, I am satisfied that her Honour dealt with this question as fairly and appropriately as was possible in the circumstances, and I cannot detect any error in her assessment of the applicant's evidence.
5. There is no merit in ground 4.

1. Having rejected each of the grounds of review, it follows inevitably that the review must be dismissed. I so order.