CITATION: Jones v Bonde (No 2) [2022] TASSC 35

Magistrates - Appeal and review - Tasmania - Motion to review - When remedy available - Inadequacy of reasons for decision - Aggravated assault - Charge found proved - Explanation why evidence of complainant accepted in preference to evidence of accused.

Phillips v Arnold [2009] TASSC 43, 19 Tas R 21; Robinson v Chatters [2010] TASSC 66; Jotheeswaran v Barnes [2019] TASSC 42, applied.

Magistrates - Appeal and review - Tasmania - Motion to review - When remedy available - Inadequacy of reasons for decision - Aggravated assault - Charge found proved - Finding of guilt reasonably open to magistrate.

Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, applied.

Judgment Number: [2022] TASSC 35

1 This motion challenges a decision of a magistrate, Ms S Cure, to find the applicant, Brereton Jones, guilty of aggravated assault. One ground of the motion asserted that the magistrate erred by failing to provide adequate reasons. For reasons published on 24 March 2022 I remitted the complaint to the magistrate with a direction under the Justices Act 1959, s 110(2A) that her Honour furnish the Court with further and better reasons: Jones v Bonde [2022] TASSC 19.

2 The magistrate's further reasons dated 3 May 2022 were received by the Court on 13 May 2022. The applicant submits that they are still inadequate. In the alternative, the applicant also presses the remaining ground of the motion that it was not open for the magistrate to have found the charge against him proved beyond reasonable doubt.

3 The issues and evidence in the case are sufficiently explained in my earlier reasons. These reasons should be read in conjunction with those. For the following reasons neither ground of the motion is made out.

4 The nature and extent of the duty of a judicial officer to give reasons were stated in my earlier decision. The reasons must expose the pathway of reasoning which led to the result.

5 The particulars of the charge of aggravated assault of which the applicant was found guilty were that he assaulted the complainant, Emily Pearce, by "pointing a firearm at her and saying where are my fucking keys". The prosecution case depended on acceptance of the truth of the essential parts of Ms Pearce's evidence and rejection of the applicant's denial. Application of the onus and standard of proof meant, as was pointed out by the plurality in Douglas v The Queen [2012] HCA 34, 290 ALR 699 at [13], that even if her Honour was not persuaded by the applicant's evidence, she could not convict him unless satisfied that his account was not reasonably possibly true.

6 The learned magistrate devoted a good deal of her further reasons to restating the respective accounts of the complainant and the applicant. The reasons are to be considered in the context that important aspects of the evidence were not contentious. It was not in dispute that the applicant was at Ms Pearce's home, that he brought a sawn-off shotgun with him, and that they had previously been in a relationship. He was the father of her child. However, the conflict between the two versions was obvious. The magistrate summarised aspects of the complainant's evidence that:

• the applicant brought the sawn-off shotgun, and hand gun and drinks into the house;
• the applicant was heavily affected by alcohol and by having smoked a drug;
• she was also affected by consumption of alcohol;
• she hid the applicant's keys because she did not want him to drive when intoxicated;
• the applicant became angry and violent after she hid his keys;
• the applicant hit her head, eye and face more than once;
• the applicant pointed the shotgun at her and she was scared.

7 The applicant's case at trial was that he did not point the gun at the complainant. The magistrate recorded the applicant as having given evidence that:

• he was not intoxicated and passed out because he was tired;
• that he left the shotgun in the laundry and only brought it out when the complainant took the photos of him holding the gun which were in evidence;
• he struck the complainant, but only once when he woke to find her on top of him having sex, because he was angry and embarrassed.

8 In her further reasons the magistrate made clear that she accepted the essential aspects of the complainant's account. Her Honour rejected the important aspects of the applicant's evidence "even if some of his evidence may have been generally accurate." Her Honour said:

"I do not accept his account that the gun was in the laundry. I do not accept his account that he was angry and embarrassed that she tried to have sex with him so he struck her once to get her off."

9 As Crawford J (as he then was) made clear in Phillips v Arnold [2009] TASSC 43, it is generally regarded as insufficient if a judicial officer simply states a preference for one witness over another witness as an expression of reasons for a finding that a charge has been proved beyond a reasonable doubt. As his Honour pointed out at [66], if a judicial officer is unable to explain why a particular witness is preferred to the extent that the witness's evidence has proved a charge beyond reasonable doubt, it may amount to good reason for dismissing the charge. However, as his Honour also made clear, there are cases in which brief reasons are all that is required. In my respectful view, the learned magistrate said enough in this case to sufficiently explain why it was that she found the charge, in the form in which it was ultimately determined, proved.

10 Her Honour said nothing about the onus and standard of proof, but as an experienced judicial officer, it may be safely assumed that her Honour had those matters in mind. In her Honour's discussion of the competing versions, the magistrate described the complainant's evidence that the applicant was vomiting after having smoked a drug, and how she had helped him, as "detailed and plausible". Her Honour stated that she did not accept the applicant's account that he only had four drinks over the whole evening and "passed out because he was tired", from which it may readily be inferred that the magistrate found that, as the complainant asserted, the applicant was far more affected by alcohol and drugs or both than he had claimed. The magistrate referred to the evidence of the injuries to the applicant and found that the evidence corroborated her account. In the course of her reasons her Honour referred to the medical records, which were in evidence, of the complainant's attendance at the emergency department of the St Helens District Hospital on 22 July 2021, two days after the assault. Although her Honour did not descend into much detail, I read her reasons as noting that the medical notes recorded injuries, both to the complainant's head and to her upper thigh and pubic bone which were inconsistent with the applicant's account of only having inflicted a single blow. Those applications of force were not the subject of the charge in its final form, but were relevant to the assessment of the applicant's credibility. The magistrate referred very briefly to criticisms of the complainant's evidence, including that she had lied about a subsequent text message she sent to the applicant. However her Honour said that her assessment of the complainant was "in the context of all the circumstances and her relationship with the [applicant]". I take her Honour to be explaining why the complainant was a witness her Honour "could accept" and that her lie was explained. Her Honour, having rejected the applicant's evidence about the level of his intoxication and anger, described his evidence as "self-serving and rehearsed." From her Honour's rejection of the applicant's evidence that he left the firearm in the laundry, it could only follow that her Honour accepted the evidence of the complainant that he had the gun when he was with her inside the house.

11 As to the specific allegation which was the subject of the charge it was necessary that the magistrate be satisfied that the applicant had, with a firearm, threatened the application of force to Ms Pearce and that she believed on reasonable grounds that he had the present ability to apply such force. Satisfaction to the criminal standard that the applicant had pointed a firearm at the complainant from such close range in a situation of conflict was enough to establish each element. The learned magistrate said little beyond stating that "I accept her evidence that he had a sawn-off shotgun and he pointed it at her when he was looking for his keys asking her, 'Where are my fucking keys slut?'", and that, in that context, "she did believe he would use force against her". However, read as a whole, the reasons go beyond a mere statement that the magistrate preferred the evidence of the complainant and sufficiently explain why it was that, in the essential respects, her Honour accepted the complainant's account and rejected the applicant's account.

13 The remaining ground asserts that no magistrate acting reasonably could have been satisfied beyond reasonable doubt of the applicant's guilt. The evidence and procedural history is summarised in my earlier decision. The principles to be applied were reviewed and summarised by Crawford CJ in Phillips v Arnold, and have been applied in countless cases since then including Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454; Cuthbert v Coates [2018] TASSC 7; JJMH v Bonde [2020] TASSC 24. The applicant is not entitled to a rehearing. It is not for me to weigh the evidence and reach my own conclusions. 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.

14 This was a case which depended substantially, though not entirely, on the credibility of the witnesses. In Wood v Smith [1991] TASSC 12 (A39/1991), Crawford J (as he then was) said at [26]-[27]:

"26 The question for this court on an application to review a magistrate's decision on the facts is whether, as a reasonable man, he might have come to the conclusion to which he 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. To adopt the words of Burbury CJ in Richardson v Shipp at p119 it was for the magistrate 'and not for this appellate court to determine what evidence should be accepted and what weight should be given to it'. The learned magistrate had all the advantages of observing the witnesses and of coming to a decision whether or not he found them convincing. I am at a considerable disadvantage in that regard. In these circumstances I do not feel able to conclude that the decision of the learned magistrate was not one to which, as a reasonable man, he should have come. Accordingly, the application will be dismissed.

27 There was evidence, which if accepted by the learned magistrate, justified the decision to which he came. When a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it."

15 It is to be recalled that although there was considerable evidence of other applications of force, the charge in its final amended form concerned only a threat to apply force. The applicant points to several aspects of the evidence, and comments made by the magistrate during the course of the proceedings, which, the applicant suggests, should have led the magistrate to have had a reasonable doubt about whether the complainant's evidence that the applicant pointed the gun at her was proved. The magistrate:

• found that she accepted part, but not all, of what the complainant said;
• commented, in her further reasons, that she could not be satisfied beyond reasonable doubt of the "order of events" but that it was "likely" that he assaulted her more than once;
• found that the complainant was intoxicated and had passed out.

16 The applicant relies on the evidence that the complainant lied while subject to her affirmation. Under cross examination she accepted that she sent a text message to the applicant, after the assault, threatening to go to the police unless he paid her money having initially denied doing so. In addition, the applicant claims that there were inconsistencies between the complainant's evidence and the complaints she made to a police officer, Constable Balnaves, and the terms of her account in the medical records of the St Helens District Hospital.

17 In my view none of those matters required the learned magistrate to have a reasonable doubt of the applicant's guilt. As counsel for the respondent correctly submits, a finding that the complainant lied about one aspect of her evidence does not preclude acceptance of other parts of her evidence when all of the evidence is taken into account. Nor does a failure to be satisfied of the truth of parts of her evidence preclude acceptance of her evidence in other respects. I perceive no difficulty in the magistrate stating that she was unable to be satisfied of the precise order of events, but be satisfied beyond reasonable doubt that within those events the facts necessary to establish the charge were proved.

18 The applicant's contention that the complainant passed out as a result of intoxication does not fully reflect the evidence. The complainant also gave evidence that she believed she may have lost consciousness as a result of applications of force by the applicant. The medical records were not necessarily inconsistent with the truth of the complainant's evidence. She gave evidence that she had a bruised and swollen face, a bloodshot eye, and bruising all over her legs, back and vagina. There was a photograph of her eye. The medical history shown in the records noted that she had been "punched in the face with a closed fist" but also record other injuries to her head, jaw, thigh and pubic bone consistent with the multiple applications of force she described in her evidence. It is not uncommon for a version of events given by a complainant to others in such circumstances to be understated. Nor were the terms of the complainant's statements to Constable Balnaves inconsistent with the truth of her evidence. He gave evidence that she described multiple applications of force and that the applicant had "produced a firearm". Moreover his evidence of his observations of her injuries and demeanour tended to corroborate her account.

19 The evidence of the complainant's injuries were also inconsistent with the applicant's evidence of a single blow. The magistrate was entitled to conclude that the applicant's evidence that he struck the complainant in "self-defence" when he woke to her "having sex" with him was inherently implausible.

20 However, leaving those matters aside, it is not for me to weigh the evidence for myself, but rather to ask whether there was evidence which, if accepted by the learned magistrate, justified the decision she reached. Acceptance of the complainant's evidence that the applicant picked up a sawn-off shot gun and pointed it at her from about a metre away, as a result of which she felt scared, justified a finding that a charge of aggravated assault was proved. This ground must fail.

21 For the foregoing reasons neither ground of the motion to review is made out. The motion is dismissed.