57. This ground of appeal asserts an error on the part of the magistrate in failing to take into account the statement of facts and excluding it from the appeal papers.

(a) For the reasons given above, the statement of facts was not the information for the purposes of the MC Act;

(b) The statement of facts was not in evidence before the magistrate and therefore the magistrate was not obliged to take it into account; and

(c) The exclusion of it from the material sent by a deputy registrar of the Magistrates Court to this Court pursuant to Practice Direction 3 of 2012 was consistent with the fact that it was not in evidence and, even if incorrect, would not disclose any error in the magistrate's decision.

60. The appellant has asserted the magistrate erred in finding the evidence of Mr Aqel and Mr Ali "impressive and articulate" and "consistent with each other".

61. It is important to note that the acceptance of the evidence of Mr Aqel and Mr Ali involves consideration of a combination of the substance of their evidence and the manner in which they gave it. While the former is disclosed by the transcript of the proceedings, the latter is a matter in relation to which the magistrate who saw and heard the evidence being given had a significant advantage over this Court on appeal.

62. The principles applicable to the review of findings of fact were recently summarised in in Ryan v Vizovitis [2017] ACTCA 3. Relevant to the circumstances of the present case is the summary of the approach to review of findings of fact based on oral evidence given by the Chief Justice in Faris v Coulon [2017] ACTSC 114 at [9]:

The principles governing the circumstances in which an appellate court may set aside factual findings made by a primary judge are well settled and were recently repeated by the Court of Appeal in Ryan v Vizovitis [2017] ACTCA 3 at [132]. There is a fundamental distinction between cases involving admitted facts or facts found by the trial judge on the one hand, and cases where the primary judge's factual findings depended on the view taken of conflicting oral testimony. In the second class of case, the appellate court must take into account the advantages enjoyed by the primary judge in resolving the conflicting oral evidence. Nevertheless, findings as to credit are not immune from challenge. It is open to an appellate court to find the primary judge failed to consider the real strength of the body of evidence presented by the losing party or found the evidence of a witness or witnesses to be unreliable on a basis that was too fragile or slight.

63. In the present case, on the central issue in the case, the evidence of Mr Aqel and Mr Ali was consistent. Both gave evidence of the appellant punching Mr Aqel. The appellant, however, asserted that there were inconsistencies between their evidence.

64. The first was whether the appellant was inside or outside the vehicle when punching

Mr Aqel, and second was the overall duration and nature of the interaction. Mr Aqel gave evidence that the appellant had got of the car before punching him. Mr Ali had only been located and given a statement to police in July 2016, a year and five months after the incident. Mr Ali, who made his observations while his vehicle was driving slowly past on the right, said that he saw that the car light was on, that someone was punching another driver, he stopped his vehicle, got out and went to the driver's side of the other taxi and saw the passenger get out and run away. He could not say whether there were multiple punches or not. He described the passenger as in the vehicle, but throwing a punch and not sitting on his seat, and gave the Court a demonstration. He accepted in

cross-examination that his vision of the appellant's body was not clear but said he was focusing on the situation not the door of the vehicle. He said that the taxi driver was "just defending himself", but the following answer indicated he meant that in the sense of not throwing punches himself rather than anything more specific. He observed that the driver's eye was watering and bruised. There was no suggestion put to either witness that they knew each other or that either had influenced the statement or evidence of the other.

65. There is certainly some differences between the evidence of Mr Aqel and Mr Ali, both as to the location of the appellant and because Mr Ali's evidence, taken overall, gives the impression of a longer incident than that described in the evidence of Mr Aqel. However, the independent evidence of Mr Ali was important corroboration for that of Mr Aqel. The differences in Mr Ali's evidence were understandable given the position from which he observed the incident and the passage of time until he was asked to recall what occurred. The differences in the evidence were matters which, along with the evidence, needed to be considered.

66. However, looking at the substance of the evidence given, in particular by Mr Aqel, there were no glaring discrepancies, inadequacies or material inconsistencies which would indicate that the evidence lacked probative force such that this Court would conclude that it should not have been accepted or relied upon.

67. Insofar as there was documentary material available that needed to be considered when assessing the evidence of Mr Aqel and Mr Ali, that is an issue addressed in relation to ground (b)(iii) below. That documentary material is not such that it demonstrates that the magistrate's decision to accept the evidence of Mr Aqel and Mr Ali involved an error.

68. In my view it was open to the magistrate to make the finding that she did. As a consequence, this ground of appeal is not made out.

69. The appellant asserted in this ground of appeal that the magistrate erred in "relying" on the evidence of Mr Aqel and Mr Ali "in preference to the Statement of Facts and documentary evidence". The documentary evidence identified by the appellant included:

(a) The statement of facts;

(b) Exhibits D2 and D3, being CCTV/photographs from the taxi;

(c) Exhibit D5, being the Shift Supervisor Report; and

(d) Statements from both Mr Aqel and Mr Ali provided to police.

70. The submission of the appellant was that this was a case similar to State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; 73 ALJR 306 (in particular at [63]) in which inadequate attention had been paid to the documentary evidence, and when that documentary evidence was given its proper weight, an error was established.

71. It is necessary to deal with each of these documents or categories of documents separately, as well as considering the documentary material as a whole.

72. The statement of facts: As pointed out in relation to ground (b)(i) above, the statement of facts was not in evidence before the magistrate and was not a court document. It therefore did not provide a basis upon which the oral evidence of Mr Aqel and Mr Ali might not be accepted.

73. Photographs: In relation to the photographs from the taxi, a disc of photographs was tendered before the magistrate as Exhibit P7. However, the photographs relevant to the submissions made by the parties, both at first instance and on appeal, were reproduced in Exhibits D2 and D3. The magistrate stated in her reasons:

Ultimately, the photographs really did not assist me in any way to determine what happened on that day, other than it does support the contention that Mr Aqel got out of his car, went to his boot, put an icepack on his eye because it was painful - and that is clear on the evidence from the photographs.

There was an issue in relation to - that Ms Keys raised at the beginning, in relation to the photographs and the timing of the photographs. Now, as I understand it, from the evidence of Mr Skipper, camera one is on the driver, camera two is on the passenger and camera three is for the outside - and there was, and she quite rightly put, no photograph of the defendant punching Mr Aqel - and that was a concern that I had. There was also a concern that she raised in relation to the timing of the photographs. However, it was explained, ultimately, on the last day, that what had happened was when the vehicle stops and the door is open the camera is on the outside - and it seems to me that having considered all the evidence as a whole any issue in relation to timing. In my view, doesn't change my opinion of what had occurred.

74. This ground of appeal is clearly related to the complaint made at ground (b)(ii) that the magistrate accepted the evidence of Mr Aqel and Mr Ali and found them to be credible witnesses. As pointed out above, the photos do not show any punch by the appellant or any grabbing by Mr Aqel. A three and a half minute period had no photographs. The timing of this was not inconsistent with the Crown case and other available evidence such as the shift supervisor's report. There were uncertainties in relation to the photographic evidence because of the unexplained missing portion. Those uncertainties were not able to be resolved by Mr Skipper because he was not an expert on the operation of the camera and not responsible for the downloading process for the camera in question. However, these uncertainties were not such as to require the magistrate to not accept the evidence of Mr Aqel or Mr Ali or to have a reasonable doubt about the commission of the offence.

75. Shift supervisor report: A document headed "Contact Centre Supervisor Shift Report" became Exhibit D5. The document records, most relevantly:

Argument over money. Pax claiming they have cash in wallet. Refusing to give money upfront. Heard sounds of a scuffle. Called police. Tried to ring driver. His number is not in service. Driver not responding to radio. ...

76. This first part of the report was consistent with both the prosecution case and the different version of events given by the accused in evidence. The contents of the document are not such as to indicate that the acceptance by the magistrate of the evidence of Mr Aqel and Mr Ali was wrong.

77. The appellant contended that the shift supervisor's report was inconsistent with Mr Aqel's evidence because it showed a dispute about money occurring after the duress button was pushed, whereas Mr Aqel said he set off the duress alarm after the appellant said he would kick Mr Aqel out and drive himself. Mr Aqel was not cross-examined about the extent of conversation before and after the duress alarm was pushed. As a consequence, it is not possible to say that there was an inconsistency with Mr Aqel's evidence. The absence of full exploration of this time in the evidence did not compel the magistrate to have a reasonable doubt about the commission of the offence, nor does it cause me to have such a doubt.

78. Statements of Mr Aqel and Mr Ali: As I have indicated above (at [42]-[44]), the statement of Mr Aqel was admitted into evidence and should be considered on appeal. There was nothing in that statement which indicates (either alone or in combination with other documentary material) that the magistrate erred in accepting his oral evidence.

79. So far as Mr Ali's statement is concerned, that was not in evidence before the magistrate and the appellant did not press the application to have it admitted on appeal. It therefore cannot provide a basis upon which this ground of appeal could succeed.

80. Documentary material as a whole: When considered as a whole, the documentary material does not indicate that there was any error in the magistrate accepting the evidence of Mr Aqel and Mr Ali or finding the offence proved.

81. This ground asserts that the magistrate erred in rejecting the appellant's evidence.

82. In her reasons, the magistrate correctly noted the appellant did not have to give evidence and that it was for the prosecution to prove its case beyond a reasonable doubt. She identified that, given the appellant gave evidence, his evidence was to be assessed in the same manner as the evidence of any other witness. The magistrate noted the evidence that during his recorded interview with police, some five days after the incident, the appellant could not recall what occurred due to his level of intoxication, yet, some two years after the incident was able to recall important details of what occurred in the taxi during oral testimony. The magistrate found this to be "incredible".

83. Whilst accepting that a resolution of conflict based on credibility does not immunise the conclusion from challenge, the magistrate's decision to reject the appellant's evidence is not contrary to any "incontrovertible facts or uncontested testimony" or "glaringly improbable or contrary to compelling inferences": see Fox v Percy at [28]-[29].

84. There was a substantial body of evidence which was inconsistent with the appellant's version of events: that of Mr Aqel, that of Mr Ali, and the photographs of Mr Aqel's injury. The evidence of the appellant had significant difficulties:

(a) The appellant was intoxicated at the relevant time, having consumed a substantial amount of alcohol. His estimates of what he had drunk varied during the course of his evidence from he could not remember how many, to "a fair bit", to "probably 10 plus", to "we had 20 each or something", to "a pretty big night".

(b) After having been contacted by police and agreeing to participate in a recorded interview, he denied being able to recall anything that had happened. Remarkably, his evidence was that after having spoken to friends after the police interview his memory revived to a point where, two years after the event, he was able to give a detailed description of what had occurred. However, notwithstanding his earlier participation in an interview, and his subsequently revived recollection, he took no steps to disclose that revived recollection to police.

(c) The appellant's version of events did not accord with the likely behaviour of a person in his situation:

(i) His evidence was that he asked to only go as far as $20 would take him when he claimed to have a couple of hundred dollars in poker machine winnings in his wallet. If he had such money, he would have been likely to get the taxi all the way to his house and not gone as far as $20 would take him and walk the balance of the way.

(ii) He said that when he was leaving the taxi he said that instead of paying money in advance he would walk, which would be an unusual course for someone in Lyneham who was trying to get home to Franklin.

(iii) There was no explanation or reason as to why a taxi driver such as Mr Aqel would have grabbed at appellant as he tried to leave the taxi.

85. In contrast, the version of events given by Mr Aqel did not suffer from incongruities of this nature.

86. Particularly having regard to the advantage available to the magistrate in seeing and hearing the witnesses given evidence, it was, in my view, reasonably open for her Honour to find the appellant's version incapable of belief and she was entitled to reject it. Having rejected his evidence, her Honour appropriately noted she was still required to be satisfied beyond a reasonable doubt on the prosecution case.

87. No error has been shown and this ground of appeal is not made out.

88. The appellant asserts the magistrate erred in finding Mr Aqel was required to be

cross-examined "under the rules of Browne v Dunn" in relation to the proposition that "his injury may have been sustained as a result of his use of the ice block on his eye".

89. This ground of appeal arises out of a submission made by counsel for the appellant to the magistrate. In her written submissions to the magistrate, counsel for the appellant submitted:

The Defendant submits that Mr Aqel's conduct in applying the block of ice to his left eye for a period of about 17 minutes provides an explanation for the injury to his left eye other than being caused by any assault by the Defendant. The alternative explanation is consistent with the Defendant's denial that he assaulted Mr Aqel and the lack of any CCTV footage of an assault.

90. In her reasons, and in rejecting this submission, the magistrate stated:

In her submissions the defence counsel relied on - or proposed that it was actually Mr Aqel, not - she didn't say "did it on purpose", but his injury may have been sustained as a result of his use of the ice block on his eye. There are a couple of issues with that. Firstly, he was never cross-examined about that - and under the rules of Browne v Dunn he would have to have been.

It was never suggested to him that, in fact, it was him that inflicted the injury to his own eye - and, indeed, the evidence from him, and also from the photographs which I saw, clearly show him going to his - going to the boot of the car, where he says he had the ice block, and then putting it on his eye.

...

91. The submission made by the appellant's counsel to the magistrate appears to have been directed to the proposition that no punch occurred, rather than that it did occur but was not itself the cause of actual bodily harm. As the magistrate correctly identified, the submission was inherently problematic. It necessarily suggested that there was no punch to Mr Aqel's eye, but that Mr Aqel injured himself by getting out his taxi, getting an icepack and placing it on his eye for about 17 minutes. No reason disclosed by the evidence, or human experience, was or is suggested as to why he might have done this. This alone provided sufficient reason to reject the submission made by the appellant to the magistrate.

92. Counsel for the appellant submitted that, in fact, the rule in Browne v Dunn required that the proposition that the swelling and injury to Mr Aqel's eye was caused by his punch.

93. The rule in Browne v Dunn is in reality a principle of fairness. Its content and application is neither fixed nor inflexible: Eastman v The Queen (1997) 76 FCR 9 at 102. Its application and consequences of non-compliance ebb and flow with the nature of the proceedings and facts in issue: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1. In that case, Hunt J provided a useful summary of the reasons for the rule at 22-3:

There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. First, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based.

94. In criminal cases the consequences of a failure to comply with the rule of practice identified in Browne v Dunn are not fixed: R v Costi (1987) 48 SASR 269 at 271; R v Birks (1990) 19 NSWLR 677 at 689-90. A failure to comply with a rule of practice cannot compel a jury to find an element of an offence proved. It may require or provide a basis for a witness to be recalled under s 46 of the Evidence Act 2011 (ACT). It may lead to the exclusion of subsequent evidence. It may compel a direction about the content of counsel's address. It may simply be a factor to be considered when assessing the evidence and reaching conclusions on findings of fact.

95. In the present case the failure to cross-examine Mr Aqel so as to suggest that he had caused the injury to himself by applying in the icepack to his eye was one of the factors relied upon by her Honour in rejecting the submission. If it was a submission with any inherent merit, then there would have been a basis for saying that it was unfair for the submission to be put in circumstances when it had not been put to Mr Aqel, and to take that fact and the uncertainty as to whether there was a good answer to it into account in making findings of fact. However, in the present case, the submission raised a scenario that was so unlikely and so clearly likely to have been met by a simple denial, that the failure to put the proposition to the witness is of less significance. The weakness of the factual contention does not disclose an error in the approach that her Honour took in relying on the rule of practice in Browne v Dunn as one of the reasons for rejecting it.

96. So far as the appellant contended that the rule in Browne v Dunn required the appellant to be cross-examined on the causal link between his punch and any actual bodily harm, fairness did not require that to be put. It was obvious that on the appellant's version of events that would not have been the case because he said he did not punch Mr Aqel.

98. The appellant asserts the magistrate erred in "failing to consider that the Statement of Facts and all documentary evidence did not establish beyond a reasonable doubt" the assault occurred.

99. As noted above (at [45]-[46], [57]) and as correctly pointed out by the magistrate, the statement of facts was not admitted into evidence. There is no error established in her Honour not having regard to it.

100. This ground of appeal is repetitive insofar as it overlaps with the assertion in ground (b)(iii) which asserted that various documentary materials should have been preferred to the oral evidence of Mr Aqel and Mr Ali. For the reasons given earlier, I do not accept that the documentary material is such that it discloses an error by her Honour in accepting the evidence of Mr Aqel and Mr Ali.

101. Therefore this ground of appeal has not been made out.

102. Because none of the grounds of appeal have been established the appeal must be dismissed.

103. The order of the Court is: The appeal is dismissed and the conviction confirmed.

I certify that the preceding one hundred and three [103] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.