SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2015] ACTSC 78

1. The appeal against conviction is dismissed.
2. The appeal against sentence is dismissed.

APPEAL - CRIMINAL LAW - Appeal from Magistrates Court - Jurisdiction - Appeal against conviction - Assault - Injury not a necessary element of the offence - Recklessness - Application of the relevant principles and precedents

APPEAL - CRIMINAL LAW - Appeal from Magistrates Court - Appeal against sentence - Seeking a non-conviction order - Seriousness of the offence - Alleged entrapment - Prior convictions - Good character - Stress and hardship

APPEAL - Conduct of the appeal - Failure to adequately particularise the grounds of appeal - Submission of irrelevant considerations - Additional material must be justified - Failure to prove submissions in evidence - Appellants cannot use the appeal to conduct a different case not put before the sentencing court

Crimes Act 1900 (ACT), s 26

Crimes (Sentencing) Act 2005 (ACT), ss 17, 33(1)q) and (r)

Evidence Act 2011 (ACT), ss 32, 43, 60, 65

Human Rights Act 2004 (ACT), s 2

Magistrates Court Act 1930 (ACT), Pt 3.10, Division 3.10.2

Court Procedures Rules 2006 (ACT), rr 2903, 4053

Family Law Rules 2004 (Cth), r 15.06

J D Heydon, Cross on Evidence (LexisNexis Butterworths, 1996, looseleaf, service 170)

Lord MacMillan, "The Ethics of Advocacy" in Law and Other Things (Cambridge University Press, 1937) pp 191-2

Professor Julius Stone, "The Ratio of the Ratio Decidendi" (1959) 22(6) Modern Law Review, 597

Baker v Thorpe (1985) 62 ACTR 1

British Thomson-Houston Co Ltd v British Insulated and Helsby Cables Ltd [1924] 2 Ch 160

Butera v Director of Public Prosecutions (DPP) (Vic) [1987] HCA 58; (1987) 164 CLR 180

Campbell v Fortey (1987) 85 FLR 462

Collins v Wilcock (1984) 1 WLR 1172

Commissioner of Police v Caldwell [1982] UKHL 1; [1982] AC 341

Connelly v Allan [2011] ACTSC 170; (2011) 212 A Crim R 320

Cotter v Corvisy [2008] ACTSC 64

Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472

DPB v Western Australia [2014] WASCA 17

DPP v JWH (Unreported, New South Wales Supreme Court, Hulme J, 17 October 1997)

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Elias v The Queen [2013] HCA 31; (2013) 298 ALR 637

Ezekiel-Hart v Law Society of the Australian Capital Territory [2012] ACTSC 135

Faulkner v Talbot (1982) 74 Cr App R 1

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Goundar v Goddard [2010] ACTSC 56; (2010) 240 FLR 176

Grimshaw v Mann [2013] ACTSC 189

Harrex v Fraser [2011] ACTSC 172

Higgs v The Queen [1999] FCA 1562

Isherwood v Tasmania [2010] TASCCA 11

Kelly v Johnston [2012] ACTSC 178

Likiardopoulos v The Queen [2012] HCA 37; (2012) 291 ALR 1

Lukatela v Birch [2008] ACTSC 99; (2008) 164 ACTR 24

Magaming v The Queen [2013] HCA 40; (2013) 87 ALJR 1060

Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501

Oldfield v Keogh [1941] NSWStRp 33; (1941) 41 SR (NSW) 206

O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204

Roseby v Harman [2014] ACTSC 125

R v Caldwell [1982] UKHL 1; [1982] AC 341

R v Casey; R v Smythe [1977] Qd R 132

R v Ong (2001) 80 SASR 537

R v Ramalingam [2011] ACTSC 86

R v Secretary of State for India; Ex Parte Ezekiel [1941] 2 KB 169

R v Yates [2002] NSWCCA 520

Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256

Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115

Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (Unreported, New South Wales Supreme Court, Giles CJ, 11 March 1997)

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477

Wentworth v Rogers (No 12) (1987) 9 NSWLR 400

Williams v R (1990) 50 A Crim R 213

1. Daniel McElholum, the Appellant, and his former partner, Tanya Howell, were, in late 2012, engaged in family law proceedings in the Federal Magistrates Court (as it was then known). In the proceedings, Ms Howell was represented by a firm of solicitors; Mr McElholum appeared for himself.

2. The proceedings came before the court on 22 August 2012, in relation to parenting orders for the son of Mr McElholum and Ms Howell. Ms Howell's solicitors had instructed counsel, Annette Josephine Haughton, to appear for her. The facts as found by the learned Special Magistrate may be summarised as follows.

3. When initially mentioned, the Federal Magistrate (Brewster FM) stood the matter down until 3:30 pm that day for parties to discuss, and potentially settle, some of the matters between themselves.

4. During the adjournment, Mr McElholum approached the interview room where Ms Howell was meeting with Ms Haughton and Ms Howell's solicitor and law clerk, Mona Moutrage and Annalise Drayton, respectively. Mr McElholum's knock on the door was answered by Ms Drayton, who opened the door.

5. Mr McElholum asked whether Ms Howell had considered his proposal, to which Ms Moutrage responded that they would not be in a position to speak with him for another ten to fifteen minutes.

6. Mr McElholum said that this was not good enough and Ms Moutrage replied that Ms Howell's representatives would speak with him when they were ready. Ms Drayton then attempted to shut the door and Ms Haughton rose from her seat and walked over to the door to assist.

7. As she placed her left hand on the door handle, Mr McElholum pushed the door open with such force that Ms Haughton was pushed back into Ms Drayton who was, by that time, standing behind her.

8. Ms Haughton then moved around to block the doorway, at which time Mr McElholum leaned closer and said "Who are you?" in a raised voice. Feeling threatened and concerned for her client, Ms Haughton called for security, who attended and asked Mr McElholum to leave the immediate area.

9. About half an hour after the incident, Ms Haughton complained of feeling pain in her left wrist.

10. As a result of the incident, Mr McElholum was charged with assault contrary to s 26 of the Crimes Act 1900 (ACT) and a summons was issued on 16 January 2013 directing him to appear in the Magistrates Court on 19 February 2013.

11. On this date, the matter was adjourned for a case management hearing on 2 May 2014, at which Mr McElholum pleaded not guilty.

12. After a hearing on 30 August and 25 October 2013, Special Magistrate Lunney found the charge to be proved on 12 February 2014. On 7 April 2014, after hearing submissions on sentence, his Honour convicted Mr McElholum, fined him $100 and ordered him to pay court costs of $69, a criminal injuries compensation levy of $50 and a victim's service levy of $10.

13. Mr McElholum has appealed against both the conviction and the sentence.

14. An appeal to this Court against a conviction in the Magistrates Court may be brought under Pt 3.10 of the Magistrates Court Act 1930 (ACT). Division 3.10.2 regulates such appeals.

15. The appeal is by way of rehearing: Baker v Thorpe (1985) 62 ACTR 1; Campbell v Fortey (1987) 85 FLR 462. In Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149, I described such a rehearing in the following terms (at [78]):

1. Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.

16. In this context, I note what Gleeson CJ, Gummow and Kirby J said in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at 126-7, [25]), that:

... the appellate court is obliged to conduct a real review of the trial and ... of [the trial] judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287).

17. As Rares J commented in Lukatela v Birch [2008] ACTSC 99; (2008) 164 ACTR 24 (at 29; [21]):

And, although the appeal is by way of rehearing, the appellate Court does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute: Fox [Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 127-128]; [27] per Gleeson CJ, Gummow and Kirby JJ.

18. I summarised the effect of these principles in Connelly v Allan [2011] ACTSC 170; (2011) 212 A Crim R 320 at 324; [12]- [15] as follows:

1. So far as the appeal against conviction is concerned, it is a rehearing. That is, the appeal court must determine whether the decision of the Magistrates Court is wrong, by that court falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. This court, as the appellate court, will give proper allowance to the advantage of the Learned Magistrate who has seen and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.
2. The appellate court is obliged to conduct a real review of the trial and the Learned Magistrate's reasons. The court has power to receive further evidence, subject to some restrictions.
3. The appellate court must weigh conflicting evidence and draw its own conclusions from primary facts found by the Learned Magistrate.
4. The appellate court is not restricted to making the decision that should have been made by the Learned Magistrate but must have regard to the circumstances which exist at the time of the appeal and make its own decision on these circumstances.

19. An appeal against sentence is also brought under Div 3.10.2 of the Magistrates Court Act, which gives this Court jurisdiction to hear and determine such appeals.

20. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles for determining such appeals. I apply them in this case. They may be summarised as follows.

21. The sentence imposed in the Magistrates Court is not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that the different sentence is appropriate and that I am not merely tinkering.

22. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations. If I find specific error, but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the sentence.

23. If I cannot identify a specific error, I may uphold the appeal and substitute another sentence if I find the sentence to be manifestly inadequate or manifestly excessive, unreasonable, plainly unjust or plainly wrong.

25. Mr McElholum, a solicitor, made the forensic decision to represent himself at all times throughout the proceedings. This decision was confirmed at the case management hearing, where the learned Magistrate asked if Mr McElholum was to seek representation and he confirmed that he believed he was in a good position to represent himself.

26. Recently, in DPB v Western Australia [2014] WASCA 17 at [40], Buss JA, with whom McClure P and Mazza JJA agreed, stated:

An apparently rational decision made by the accused's counsel in the course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then or later on appeal that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused.

27. The same has also been held by the High Court. See TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [16]- [17] (Gleeson CJ), [95] (McHugh J), [107] (Hayne J, Gummow J agreeing) and Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 at [21] (Gaudron, Kirby & Callinan JJ).

28. Mr McElholum was entitled to appear for himself. This did require the Court to provide appropriate assistance to ensure a fair trial, as I explained in Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [41]. That Mr McElholum is a solicitor would moderate the assistance the learned Special Magistrate was required to provide.

29. Mr McElholum filed a Notice of Appeal on 30 April 2014 and an amended Notice of Appeal on 29 May 2014.

30. The amended Notice of Appeal was a lengthy document, nearly seventy pages long, and its contents gave it the form of submissions rather than a notice of appeal. This is referred to below in relation to written submissions (at [161]-[163]).

31. The amended Notice of Appeal contained what could be considered as thirty-seven grounds of appeal, most of which did not elucidate clear legal points on which the grounds were based. The grounds of appeal were convoluted and contained matters not within the appellate jurisdiction. They were also repetitive. The numbering was also problematic as I note below (at [163]), which, with the repetition and discursiveness, made it difficult to ensure that each ground has been adequately addressed.

32. I shall attempt to isolate from them the points that I consider Mr McElholum was trying to make and then address them.

33. Given the discursive and repetitive nature of the grounds, I shall group them together as best I can to make some meaningful sense of them.

34. The prosecution case was that, when Mr McElholum forcibly opened the door of the interview room, he was at least reckless as to whether someone was standing behind the door, or, more likely, had knowledge that someone was standing behind the door, and was reckless as to whether an injury could result.

35. Ms Haughton stated that, after the proceedings were adjourned for the parties to discuss the matter, she, Ms Moutrage, Ms Drayton and Ms Howell went into one of the interview rooms located within the Family Court building, where the Federal Magistrates Court conducts its hearings. They prepared to formulate what orders Ms Howell would be seeking.

36. Ms Haughton says that, while they were in the interview room, there was a knock at the door. She said she could not remember who opened the door initially, but that Mr McElholum was the person who knocked on the door, as he wanted to know how long it would take for a proposal to be given to him. Ms Moutrage told Mr McElholum that they would only be another ten to fifteen minutes.

37. Ms Haughton says Mr McElholum was demanding when asking for the proposals and, when informed that it would be another fifteen minutes, Ms Haughton says she heard Mr McElholum say, "That's not good enough" in a "[v]ery demanding and clearly angry voice".

38. Ms Haughton told the Court that her client was upset and it was at this stage that Ms Howell asked Ms Drayton to shut the door. This was followed by Ms Moutrage asking Ms Drayton to shut the door.

39. According to Ms Haughton, she could see Ms Drayton attempting to close the door and it was at this point that she "realised that it was getting out of hand", so she stood up and walked over to the door. She put her left hand on the door handle. As she was shutting the door, Ms Haughton said she started telling Mr McElholum that they "[w]on't be long".

40. Ms Haughton said that, as she was shutting the door, the "door was pushed back in to [her] with sufficient force to push [her] into Ms Drayton", who was standing right behind her at this point.

41. She then said that she could not remember where the door struck her, but it was sufficient to "knock [her] back." She said that she did not feel any pain in her left wrist at that time and it "was only later that [she] realised that [her] wrist was hurting."

42. Ms Haughton said that, at that point, she "was alarmed and in fear and thought that [Mr McElholum] was going to launch into the room ... so [she] was in fear." She said this fear was based on previous dealings with Mr McElholum, as well as her client's claim of domestic violence.

43. Ms Haughton said that, after the door hit her, she moved into the doorway, standing "probably within a foot of [Mr McElholum] ... blocking the door." Mr McElholum, according to Ms Haughton, then said to her, in a "very menacing tone", "Who do you think you are?"

44. According to Ms Haughton, she warned Mr McElholum that if he did not step away she would call for security and, when he did not move away from the door, she called for security. After security attended, she saw Mr McElholum being escorted away out of the court building and, at this time, she "could see him smiling at [her]."

45. Ms Haughton said that she did not give Mr McElholum permission to swing the door into her at any time.

46. Ms Haughton was then cross-examined at length on a number of points, not all of which had apparent relevance to the issues in the proceedings. The learned Special Magistrate rejected a number of Mr McElholum's questions on the ground of relevance. There was no challenge to these rulings in this appeal.

47. Mr McElholum asked questions about the professional relationship between Ms Haughton and Ms Moutrage which, Ms Haughton explained, was as counsel in Family Law matters where she was briefed by Ms Moutrage from time to time.

48. She was initially asked about proceedings on 25 July 2012, apparently an earlier hearing. She described Mr McElholum then as being "demanding"; he approached Ms Haughton, who said she did not want to talk to him, and he "wouldn't go away". She gave an unflattering description of Mr McElholum.

49. Ms Haughton described Mr McElholum's "demeanour [as] ... threatening" but agreed that he had not said anything that was threatening, though the words, coupled with his demeanour, she said was threatening. She described a particular incident quite graphically.

50. Much of the cross-examination, under the guise of a challenge to Ms Haughton's credibility, seemed to amount to a gratuitous opportunity to insult Ms Haughton because she apparently did not behave or conduct her business as Mr McElholum thought she should. The learned Special Magistrate had to restrain him on a large number of occasions from straying into irrelevant areas which could have been of no assistance to his Honour in determining the proceedings.

51. Ms Haughton repeated that Ms Howell had asked for the door to be closed, that Ms Drayton was hesitant about doing so and, as a result, she stood up to close the door. She denied that there was "a conversation" between Mr McElholum and Ms Moutrage, but said that he may have been talking and that he would not leave as requested. She said he was "talking at Ms Moutrage".

52. She explained that she took it upon herself to close the door because Mr McElholum, who had been told to leave, would not leave so that Ms Howell's lawyers could get her instructions. Ms Haughton also said that she saw that Ms Howell was frightened because she had been exposed to domestic violence and abuse by Mr McElholum.

53. She further said that, when she shut the door, Mr McElholum was no longer in the door frame so that shutting the door "in his face" would not have assaulted him.

54. Mr McElholum suggested that Ms Haughton had, after she closed the door, stood behind the door "to entrap" him but she denied that. She agreed that she stood in the doorway to stop Mr McElholum from entering the interview room.

55. Ms Haughton was shown some still images from the CCTV of some of the events related to the incident. It showed, she agreed, her coming out from behind the door and, in that sense, approaching Mr McElholum. She said she was "going to stand in the doorway in case [he] launched in". She agreed she was close to him. She was then shown further images which showed her approaching him again and putting her head back. She also said that the images showed that Mr McElholum was approaching her. She did not agree that he was moving away. Having carefully viewed the images, I agree with the analysis of Ms Haughton. That is what seems to me to have happened as disclosed by the recorded CCTV images.

56. Further images showed that the distance between the two faces of Ms Haughton and Mr McElholum widened. It appeared to me that Ms Haughton remained still in the same place, she did not move forward, but that Mr McElholum moved back. Ms Haughton said that this was when she had called a security officer who, in the last frames, can be seen approaching.

57. There was cross-examination about an error that Ms Haughton had clearly made. In what was said to be an affidavit of 31 January 2013 (possibly a police statement) she said "I recall smiling at some stage as he [Mr McElholum] was removed". She said in her evidence, however, that, at the time, she was upset and that it was Mr McElholum who was smiling. She said the wording in her affidavit (or statement) was an error.

58. At no time in the cross-examination was it put to Ms Haughton that the door did not hit her wrist when opened forcibly by Mr McElholum.

59. Mona Moutrage, gave evidence that the Federal Magistrate had made directions around 11:00 am and then she, Ms Haughton, Ms Drayton and Ms Howell moved into the interview room to obtain instructions.

60. Ms Moutrage gave evidence that it was she who asked Ms Drayton to open the door when Mr McElholum knocked at the door as Ms Drayton was closest to the door. When Mr McElholum asked about the progress of the proposals, Ms Moutrage said, "In the next 10, 15 minutes, 20 minutes, something like that".

61. She said that Mr McElholum responded, "Not good enough" in a "very assertive, strong, sharp manner." He also said something about having discussions, but she did not hear clearly what he said as he was mumbling. From where she was sitting in the interview room, she could see Mr McElholum and described his demeanour as "angry, agitated".

62. Ms Moutrage said that, seeing and hearing this, she then asked Ms Drayton to shut the door and subsequently observed Ms Drayton "trying to push the door closed and [Ms Drayton] couldn't quite close door. It was as if somebody was pushing on it." It was then that she observed Ms Haughton get up from her chair and walk over to the door, at which point Ms Howell was also asking for the door to be shut.

63. Ms Moutrage gave evidence that, after Ms Haughton took hold of the door handle, Mr McElholum "pushed against the door quite sharply", causing the door to hit Ms Haughton.

64. She said that Ms Haughton then stood in front of the door and Mr McElholum said something to the effect of, "Who are you?" loudly and close to Ms Haughton's face. Then Ms Haughton called for security and Mr McElholum was escorted out by security.

65. In cross-examination, it was suggested to Ms Moutrage that she was not negotiating with Mr McElholum but she said, not unreasonably, that she first had to get her client's instructions and that was what she and the others were doing when Mr McElholum interrupted.

66. Ms Moutrage said that, when Mr McElholum came to the door of the interview room, Ms Howell was anxious and nervous and that her voice was shaking when she asked that the door be shut. Mr McElholum put to Ms Moutrage that this was not so, but she confirmed that Ms Howell was shaking and was anxious. She said that this was caused by the domestic violence issues that were part of the proceedings.

67. Ms Moutrage was also asked about her indication of the further time she told Mr McElholum that they needed to finalise their instructions. She said that she initially said ten to fifteen minutes but then fifteen to twenty. She agreed, however, that it was possible she said "5, 10, 15, 20 minutes". She said that Mr McElholum yelled in response "That's not good enough". It was not at all clear why it would not be entirely reasonable to take that time to formulate a proposal or a response to a proposal or both.

68. She also stated that she asked Ms Drayton to close the door. She also stated that she saw Mr McElholum's face close to that of Ms Haughton when he yelled at her "Who are you?". She denied that Ms Haughton was enraged, but said she was quite distressed, saying that she saw her visibly shaken.

69. Ms Drayton, who was a legal clerk at the time of the incident, said that when she heard a knock at the door, she could see through the glass panel next to the door that it was Mr McElholum. She stood up to open the door after Ms Moutrage gestured for her to do so. Mr McElholum then asked if a proposal had been prepared because the Federal Magistrate had asked them to discuss the matter.

70. As with the other two prosecution witnesses before her, Ms Drayton said that Ms Moutrage had responded to Mr McElholum, telling him that they were working on it and would be another ten to twenty minutes. Mr McElholum then said, "We're supposed to be discussing it" followed by "That's not good enough" in a loud and aggressive manner and Mr McElholum seemed "confrontational".

71. Ms Drayton said that, following this exchange, Ms Moutrage asked her to shut the door, so she started to push it closed. Mr McElholum, however, "was pressing back against [her]. [She] could feel pressure against the door" and this pressure meant she could not shut the door properly.

72. Ms Drayton stated that, at this point, Mr McElholum said something like "See you in court".

73. Ms Drayton continued that, when the door did not close properly, Ms Haughton stood up and walked over to the door, placing her left hand on the door, which prompted Ms Drayton to "back off a bit", letting go of the door and standing a few inches behind Ms Haughton.

74. Ms Drayton said that, at this point, she heard Ms Howell request that the door be closed, right as the "door flew inwards", hitting Ms Haughton and pushing Ms Haughton into her.

75. After this occurred, according to the evidence of Ms Drayton, and similar to the evidence of the previous two witnesses, Ms Haughton then stepped around the door and Mr McElholum "leaned over" Ms Haughton and "yelled" in Ms Haughton's face, "Who are you?"

76. It was then that Ms Haughton called out for security. Giving slightly different evidence to that of the previous two witnesses, Ms Drayton said that Mr McElholum left the building after he was asked to leave but, corroborating the evidence of Ms Haughton, she said that Mr McElholum "was smiling on the way out of the exit".

77. Ms Drayton gave evidence that she observed Ms Haughton to be very "shaken up by the whole thing" and was "very red in the face".

78. In cross-examination, Ms Drayton confirmed her earlier evidence, saying that she could see Mr McElholum through the glass panel before she opened the door.

79. She was asked about other occasions when Ms Haughton and Ms Moutrage had spoken to Mr McElholum but none of that seemed to have any relevance to the issues in the proceedings. She was asked also about her opening the door and how that came about. Again, it did not seem relevant to the issues in the proceedings.

80. Ms Drayton said that, at the time of the alleged offence when, as she put it, the door "flew open", it opened to about 70 to 75 centimetres. She confirmed that it hit Ms Haughton, she thought, on the left side. She said it caused Ms Haughton to be pushed back, which caused Mr Drayton to be "bumped back into [her] chair". Ms Haughton then moved into the doorway opening. Ms Haughton did not approach Mr McElholum because he was "so close to the door frame when she stood at the door [he was] standing very close together". Mr McElholum was leaning forward, towards Ms Haughton.

81. Mr Drayton was asked about what she could see. She agreed that she was behind the door, a timber door, but that it was sufficiently open that she could see Mr McElholum "from probably hips up" and that she "could see that [he'd] been leaning in". She could see all of Ms Haughton's body, which was not filling up the whole of the doorway as it was open.

82. She was asked details about where she was precisely located and where the other people were in the room. She was also asked about what she could see of the area between the interview room and the building exit and she mentioned "slits in the frosting in the glass you can see through". It was through these that she could see Mr McElholum smiling as he was taken outside the building. She said that he "sort of turned over [his] shoulder and smiled as [he was] walking out".

83. Ms Drayton confirmed that Ms Haughton had not lost her temper but was distressed after Mr McElholum had been escorted out of the building.

84. She also stated that she had no reason to close the door until she was asked to do so. She said she had no authority to do so. She felt that Ms Moutrage said, "Just close the door" but knew that she "gestured to have it shut". She did not like the way Mr McElholum was behaving because he was "aggressive and confrontational" but she had no reason to close the door just because she did not like him. She mentioned that Mr McElholum had been quite aggressive previously.

85. Tanya Howell, Ms Moutrage's client and Mr McElholum's former partner, was the final prosecution witness who was present in the room at the time of the assault.

86. Ms Howell, giving similar evidence to that given by the other witnesses, stated that they went into the interview room around midday. When there was a knock at the door, Ms Drayton opened the door.

87. Ms Howell said that, upon the door being opened, she heard Mr McElholum ask if a proposal had been prepared. She heard Ms Moutrage respond by stating that they would need another ten to fifteen minutes.

88. Ms Howell's evidence was that, at that time, Mr McElholum's "aggression seemed to become bit more obvious in his face and his tone" and he said "Well, that's not good enough".

89. Ms Howell said that, after Ms Moutrage again said they would be done shortly, Ms Drayton closed the door, but it opened again and Mr McElholum's "face became red and he raised his voice", saying that was not good enough. Ms Howell asserted that it was at this time that she said "Close the door".

90. Ms Howell continued that, after she said this, Ms Haughton stood up and went over to the door and it was then that Mr McElholum "pushed on the door with force" causing it to be pushed back into Ms Haughton which, in turn, caused her to stumble back into Ms Drayton.

91. Corroborating what was said by the three previous witnesses, Ms Howell said that Ms Haughton then stood in the doorway and Mr McElholum moved closer, saying "Who are you" in a "[v]ery loud and aggressive" manner in Ms Haughton's face.

92. As with the earlier witnesses, Ms Howell's evidence was that at this time Ms Haughton yelled for security. Mr McElholum had a "smirk" on his face as this was happening.

93. In cross-examination, Ms Howell denied that Ms Haughton, Ms Moutrage and Ms Drayton had told her "what to say" when giving evidence.

94. Ms Howell said that whenever she saw Mr McElholum she felt "anxious and fearful" as she did on 22 August 2012. She said the people with her would have known how she felt.

95. She said that, before Ms Haughton stood up to close the door, she, Ms Haughton, was touching her, by reaching out to touch her as a reassurance. She said that she and her lawyers were "professional friendly"; she had known her lawyer for twelve months or so.

96. Ms Howell said that she told Mr McElholum to close the door to the interview room. She said that she asked him to "go away and leave [them] alone", though she could not be precise about the words.

97. She was asked some questions about where the people in the interview room were located. She also agreed that Mr McElholum was "smirking and giggling" and said it happened when he had "yelled in [Ms] Haughton's face, "Who are you?". Mr McElholum took one footstep into the interview room towards Ms Haughton who, however, stood her ground. Ms Howell added that, when Ms Haughton called security, Mr McElholum had a smirk on his face "as if [he] got some satisfaction from upsetting her".

98. She was then shown some photographs. She said she recognised Mr McElholum opening the door and with a foot inside the door. There was another person shown who could have been Ms Haughton or Ms Drayton. She affirmed that the door hit Ms Haughton when it was opened. She affirmed also that Ms Haughton was behind the door.

99. She was shown a further picture which, she said, showed that Mr McElholum had moved further into the interview room.

100. Ms Howell said that after she was hit by the door and Mr McElholum had been escorted out of the building, Ms Haughton spoke to the security officers outside the interview room and then returned to it, crying. Ms Howell denied that she was smiling.

101. Mr Gielissen, who was the security officer who first responded to the incident, gave evidence that he was working at the Family Court building on 22 August 2012 and that around 12.30 pm Ms Haughton yelled, "He assaulted me" or words to that effect and that he ordered Mr McElholum to move away; Mr McElholum then "turned around and left" after he was asked to do so. Mr Gielissen then had a conversation with Ms Haughton.

102. He said that Ms Haughton looked "pretty worked up" and that her eyes "looked all glassy like she was close to tears". He had seen Ms Haughton at the court many times; he knew her by name. He said she asked for the police to be called, which he did.

103. In cross-examination, he said that he knew Ms Haughton through his work as she had been coming to the court for about four or five years, she was usually very cheerful and he had never before seen her in the state that he saw her in on that day.

104. He agreed that, from what he saw, the incident was "very trivial". He later made a statement which the police took.

105. Mr Gielissen said there was no booking system for interview rooms and that it was not unusual to see opposing lawyers using the rooms.

106. He did not see the assault take place, saying that he was sitting in the security room at the time and looked up at the monitors showing the CCTV footage when he heard a raised female voice. He did not recognise the voice.

107. He further stated that Mr McElholum's facial expression was "neutral" when he arrived at the meeting room to respond to the situation; he did not see him smiling.

108. He answered a number of questions about the CCTV which I do not need to detail. It was he who pointed police to the relevant cameras and the relevant time period.

109. Mr Green, the security guard operating the x-ray machine near the entrance of the court building on 22 August 2012, gave evidence that he did not see the assault take place and had not spoken to anyone about it other than Mr Gielissen, and that conversation took place on the day of the assault.

110. Mr Green was cross-examined and denied that some lawyers call for security more than others. He agreed that he saw Mr McElholum smile or smirk in his direction as he left the court building after the incident.

111. Constable Callum Hughes was the informant in this matter. He said that, after receiving a notification to speak with Ms Haughton, he met with her at the City Police Station on 22 August 2012, shortly after 4:00 pm. She told him that she had been assaulted by Mr McElholum at the Commonwealth Courts building, also telling him that Ms Moutrage, Ms Drayton and Ms Howell witnessed the event and Mr Gielissen was present "after the fact".

112. Following his conversation with Ms Haughton, Constable Hughes attended the Commonwealth Courts building, where he spoke with security and viewed the CCTV footage. He gave evidence that he could not obtain a copy of the footage at this time, as none of the security staff were able to download it. He later requested Patrick Carey of the AFP's video operations unit to attend the court and download the footage. He gave Mr Carey a time period to download and Mr Carey subsequently attended the court, downloaded the footage and provided it to Constable Hughes.

113. Constable Hughes said he then spoke with the witnesses and obtained statements, as well as phoning Mr McElholum on 22 October 2012 and 7 November 2012. Mr McElholum did not answer the call on either of these occasions, so Constable Hughes left a voice mail message. Having received no response, he requested that an officer from the Albury Police Station attend upon Mr McElholum's house "in an attempt to offer him the opportunity to attend the City Police Station and participate in an interview".

114. In cross-examination, Constable Hughes said that he could not remember the exact time frame of the footage that he asked Mr Carey to obtain, but said he knew that the incident occurred around 12:20 pm, so the time frame would have been "a reasonable section of time both before and after the alleged incident had occurred on that day".

115. He stated that he selected the footage based on the information about the cameras as provided to him by the security staff at the court and indicated that this was the usual manner in which footage was obtained.

116. Constable Hughes denied that it would be "desirable" to have obtained footage from all the cameras at the court for the entire day of 22 August 2012 for a matter such as this.

117. Constable Hughes confirmed that he examined the CCTV footage once it had been downloaded and provided to him and stated that he did not notice inconsistencies between the CCTV footage and the statements given by the witnesses.

118. He explained the delays in obtaining the statements were due to his busy work schedule and personal commitments. He did not inspect the interview room. He also said that when he spoke to Ms Haughton, she was upset but was not trembling or shaking. He said that, having considered the matter, he thought there was sufficient substance in it to justify bringing the matter to court.

119. Mr McElholum was the only witness to give evidence for the defence.

120. Mr McElholum set out in his evidence that his case was that the risk of injury in opening the door could not have been foreseen and Ms Haughton had deliberately placed herself in a "risky" situation by moving behind a door where he could not see her. He asserted that Ms Haughton and the other witnesses for the prosecution were trying to achieve an advantage in the family law proceedings involving him and Ms Howell. He further asserted that opening a door is an everyday activity which, on occasions, can result in someone accidentally being hit by a door, but that such accidents should not be considered criminal behaviour.

121. Initially, he tried to give evidence by tendering an affidavit that he had prepared some time beforehand. The learned Special Magistrate refused to let Mr McElholum read his affidavit. As was said in J D Heydon, Cross on Evidence (LexisNexis Butterworths, 1996, looseleaf, service 170)

Perhaps the most important feature of an Australian trial, civil or criminal, is its 'orality'. Much greater weight is attached to the answers given by witnesses in court on oath or affirmation than to written statements previously made by them, and contrary to what is commonly supposed by persons without experience of litigation, the way in which a witness responds to examination in chief is often more informative about that witness's reliability than that witness's reaction to cross-examination.

(footnote omitted)

122. The ordinary procedure in court cases in Australia is for a witness to give oral evidence before the judge, judge and jury or magistrate in a courtroom: Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (Unreported, New South Wales Supreme Court, Giles CJ, 11 March 1997) p 6. This enables the court to assess the demeanour of a witness and to have the evidence properly tested: R v Yates [2002] NSWCCA 520 at [218].See also Butera v Director of Public Prosecutions (DPP) (Vic) [1987] HCA 58; (1987) 164 CLR 180 at 189.

123. That did not mean that Mr McElholum could not be permitted to refer to his affidavit, if necessary. The Court of Criminal Appeal in Tasmania in Isherwood v Tasmania [2010] TASCCA 11 at [81] considered the position of an unrepresented litigant, particularly in the context of the Tasmanian equivalent of s 32 of the Evidence Act 2011 (ACT):

The principal object of [s 32] is the giving of leave to a witness to refresh memory from notes made when the events recorded were fresh in the witness's memory, but that is not its only object and its provisions are sufficiently broad to apply to the situation that arose in this case. Almost invariably, unrepresented litigants are at a disadvantage when giving evidence because they do not have counsel to lead the evidence from them by appropriately worded questions. The risk of an unrepresented litigant forgetting to give evidence of a material fact will be a real one in many cases if he or she does not have recourse to notes. While a trial judge will have an understandable concern to ensure that a witness does not simply read his or her evidence from a prepared document, care should be taken before refusing an unrepresented litigant leave to refer to any notes at all when giving evidence. There could hardly be harm to the interests of justice if the notes contain only subject headings or questions that are not in a leading form, the purpose of which is to refresh the mind of the witness of the matters about which he or she should give evidence.

124. The occasion for use of the affidavit prepared by Mr McElholum had not arisen and, though the decision of the learned Special Magistrate was not challenged, I do not see any error in his Honour's approach.

125. Mr McElholum, in his evidence, confirmed that he was in the Federal Magistrates Court on 22 August 2012 in relation to a family law matter with his former partner and the Federal Magistrate had requested that the parties should try to come to an agreement in the matter. Mr McElholum had made some proposals in affidavits he had earlier filed.

126. McElholum said that, at the conclusion of the morning hearing, he approached Ms Haughton, asking her whether her client had considered his proposals. Ms Haughton then said, "We're getting instructions". He then waited for an hour and approached Ms Haughton again, with the same result.

127. Mr McElholum said that, after waiting another thirty minutes, he went to the interview room and "gently knocked" on the door. When the door opened, he asked whether Ms Howell had considered his proposal. Ms Moutrage then responded by saying "No" and that they were still obtaining instructions. She said they would be another "5, 10, 15, 20 minutes". He felt this to be "uncertain and imprecise", so he replied "That's not good enough". It was, he said, at this point, "without any warning, that the meeting room door was closed".

128. Stating his keenness to "try and resolve the matter", Mr McElholum said he opened the door partially to "continue the conversation that was in progress with Ms Moutrage at the time". It was then that Ms Haughton appeared at the door, moving "aggressively and in a confrontational matter" towards him. Mr McElholum said that Ms Haughton had lost her temper, placing her face close to his, clenching her teeth and trembling with rage.

129. Mr McElholum gave evidence that he felt uncomfortable with this situation and so said in a loud voice, "Who are you?" so as to warn Ms Haughton that she was invading his personal space. He then took a step back, claiming that he "thought there was a real possibility that Ms Haughton would strike at [him] given her enraged state". Ms Haughton then yelled for security. When security arrived, he left the court building.

130. According to Mr McElholum, he thought that the incident had been "completely unremarkable" and did not become aware of it being something more serious until some months later.

131. Various items, including the transcript of the proceedings in the Federal Magistrates Court, the CCTV and various photographs, were tendered by Mr McElholum. I have read or viewed them all.

132. Mr McElholum was then cross-examined. He denied that he was agitated, upset or unhappy on 22 August 2012; he stated that he was merely perplexed. He said his manner was "calm and measured".

133. He confirmed his earlier evidence that it was his belief that Ms Moutrage's answer was not specific enough. He said, again, that he was perplexed by the response, though he said he was "neither happy nor unhappy" with the response.

134. He stated that after he knocked on the door he did not know who had opened the door as he could not see the person who opened the door. He also confirmed his earlier evidence that the door was closed "without warning". Mr McElholum said the door was then opened again and there was some further conversation and the door was again closed during the conversation.

135. The prosecution put it to Mr McElholum that, in opening the door again in "one final attempt" to resolve the issue, he knew that someone was standing on the other side of the door as someone on the other side of the door has just closed the door. Mr McElholum avoided directly answering this proposition, stating that he "could not see anyone on the other side of the door" though he did agree that "someone was there to close the door". This was not an insignificant admission to knowing that there was, at the very least, a risk of hitting someone by forcibly re-opening the door.

136. He denied moving his whole body forward when opening the door on this last occasion, stating that he "didn't move or change position" nor did he, as was suggested by the prosecutor, take "two to two and a half steps into the door and forward". Instead, Mr McElholum claimed to have only opened "the door very slightly to continue a conversation with Ms Moutrage".

137. He denied opening the door with force and, despite his earlier admission, re-iterated his denial of knowing that someone was standing behind the door when he opened it. He did agree, however, that somebody was closing the door and so someone was on the other side of the door, though he said he could not see that person.

138. He confirmed that he had heard Ms Howell say, "Close the door", but denied that this made him angry. He said these words were spoken after Ms Haughton "had lost her temper". It was also put to him that he was "driving off [his] behind leg and moving forward with his full body weight" thereby opening the door "with force", but he denied it.

139. The prosecutor showed Mr McElholum the CCTV footage again. He denied that a "dark figure" could be seen through the glass panel to the left of the door. He continued to disagree that there was someone standing behind the glass, saying that he had an "unobstructed view of Ms Moutrage", something which would not have been possible had someone been standing there.

140. After some prevarication, he agreed with the prosecutor that he had not removed his hand from the door handle at the relevant times and further agreed that, on the first two occasions when the door was opened, he was using his arm only and not any of his body weight.

141. However, he denied using his body weight on the final occasion when the door was opened, though he agreed that his weight was on his right foot. He said, however, he considered it "a standard door opening".

142. Mr McElholum stated in re-examination that it was impossible that Ms Haughton could have been behind the door and then moved around in front of the door in such a short space of time, saying that she "set upon" and "attacked" him.

143. On 12 February 2014, Special Magistrate Lunney delivered his decision and reasons for his decision.

144. His Honour referred to the elements of the offence, by reference to my decision in R v Ramalingam [2011] ACTSC 86 at [174], in which I set out the elements of the offence of common assault as follows:

(1) the infliction of force or threat of the infliction of force on another to put them in fear;

(2) an intention to do those acts or being reckless as to whether they will inflict force or engender fear;

(3) the other person does not consent; and

(4) the force is unlawful

His Honour noted that the prosecution was based not on an intentional assault, but on the allegation that Mr McElholum was reckless.

145. His Honour set out, in summary, the evidence given over the course of the two day hearing, starting with the evidence given by the prosecution witnesses and then the evidence of Mr McElholum, making it apparent that he rejected some, if not most, of the evidence given by Mr McElholum.

146. His Honour referred to the exhibits tendered during the hearing, relying on the CCTV footage in preparing his reasons for decision, stating that a "log" of the footage had assisted him in his preparation of the reasons.

147. His Honour analysed the CCTV footage carefully, describing the events there recorded which were consistent with the evidence of the prosecution witnesses. He considered carefully the occasion of the door opening where the alleged assault took place. He had regard to the cross-examination of Mr McElholum and his answers.

148. His Honour then referred to case law, citing passages from R v Ramalingam, Williams v R (1990) 50 A Crim R 213 and R v Caldwell [1982] UKHL 1; [1982] AC 341.

149. His Honour then found, on the basis of the evidence before him, that Mr McElholum had opened the door "vigorously and forcefully".

150. Based on the evidence adduced during the hearing, the learned Special Magistrate found that Mr McElholum was aware that there were four people in the interview room at the relevant time, two of whom he could see when the door was open, meaning Mr McElholum

knew that whomsoever that it was closing the door was one or both of two persons he could not see sitting or standing behind and hidden by the door.

151. His Honour further found that Mr McElholum was

aware that in vigorously opening the door in the direction of those persons, there was a chance of those persons either being struck by the door or otherwise injured, particularly if one or both of them was holding the door handle.

152. As a result of these findings, his Honour concluding that, when opening the door in the vigorous fashion described, Mr McElholum was

indifferent as to his clear knowledge of the presence of a person or persons behind the door and the possibility of injury to such person or persons if he opened it vigorously.

153. In applying and following R v Ramalingam, his Honour concluded that

it was reckless of [Mr McElholum] to open the door in the manner that I find he did and the contact of the door with the complainant constituted an assault.

154. Accordingly, his Honour found Mr McElholum guilty of the assault and adjourned the sentencing proceedings to 7 April 2014.

155. On 7 April 2014, after hearing submissions from both the prosecution and Mr McElholum, Special Magistrate Lunney sentenced Mr McElholum.

156. His Honour said that he did not find the matter to be "trivial" as submitted by Mr McElholum, though he accepted the prosecution submissions that the offence was at the lower end of the scale of common assault. He noted Mr McElholum's submission that no penalty should be imposed.

157. The learned Special Magistrate noted that Mr McElholum had been required to attend court on no fewer than five occasions and accepted Mr McElholum's submission that, in taking five days off work to attend court as required, he had lost wages.

158. His Honour then considered Mr McElholum's circumstances, referring to his prior criminal record and the fact that he had been granted the leniency of the Commonwealth equivalent to s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) for an earlier offence.

159. In considering s 17 of the Crimes Sentencing Act, his Honour found no extenuating circumstances to exist, but did take into account Mr McElholum's lost income and time spent on the matter. His Honour also referred to the purposes of sentencing as set out in s 7 of the Act.

160. Having considered these factors, the learned Special Magistrate found it "appropriate to impose a conviction in this matter", noting, however

in imposing a penalty, I do take into account all the other matters and in particular, the evidence given by [Mr McElholum] of loss of income and loss of time ...

161. His Honour then convicted Mr McElholum and fined him $100, ordering him to pay court costs of $69, the criminal injuries compensation levy of $50 and the victim's service levy of $10.

162. As noted above at [30], Mr McElholum's amended Notice of Appeal read like submissions. They were detailed, expansive, discussive and argumentative. As such, Mr McElholum did not provide the Court with written submissions as well. The ACT Director of Public Prosecutions, appearing for the Respondent, agreed that the amended Notice of Appeal was such that an absence of written submissions had not caused prejudice.

163. The Respondent provided written submissions to assist the Court, relying primarily on these submissions and only made oral submissions on a couple of matters. I have addressed these submissions in my consideration below.

164. Mr McElholum's submissions, both oral and written were repetitive. Indeed, his written submissions were somewhat difficult to follow and the numbering of the grounds was problematic; for example, there were four grounds numbered (iv), three numbered (vi) and two numbered (v) and (viii), many of the grounds traversing the same points. There was no ground (vii). For convenience, and as with the submissions of the Respondent, I have endeavoured to address all the submissions, but not in order, due to the repetition. I have, therefore, grouped a number.

165. Mr McElholum submitted that the proceedings were "a malicious prosecution that has never had any prospect of success". It is, however, necessary to address the evidence and the findings of the learned Special Magistrate.

166. The first of Mr McElholum's appeal grounds was that the Court did not have "regard to the evidence given in court in its entirety" due to the fact that the hearing did not take place over successive days and the determination was some months after the final hearing. [Ground (i)].

167. While it is certainly preferable for a hearing to take place over successive days, the business of the courts means that this is not always possible. Accordingly, from time to time, matters are adjourned and, in some instances, adjourned for some time.

168. In any event, that a hearing does not occur over successive days is not a matter recognised by the courts as a ground for setting aside a verdict. A disaggregated hearing is not, in and of itself, a reason to set aside a verdict; it must be shown that there is an error in the decision of the learned Special Magistrate.

169. Mr McElholum further asserted that the evidence had not been considered in its entirety due to the fact that the learned Special Magistrate did not seek a transcript and "was observed taking few notes" during the two days of hearing.

170. Neither of these are grounds for upholding an appeal. What needs to be shown is an error in the decision of the learned Special Magistrate, whether by failing to address all the relevant evidence or otherwise.

171. Mr McElholum submitted that errors could be seen because his Honour made an error as to the date of the offence and also failed to recollect, on the second day of hearing, that Mr McElholum put Ms Haughton's affidavit to her on the first day of hearing.

172. The first error was made, however, not in his Honour's reasons for convicting Mr McElholum on 12 February 2014. In that decision the date of the alleged assault was quite correctly stated.

173. The error was made in the sentencing proceedings, some two months later, on 7 April 2014. His Honour explained (not mentioned by Mr McElholum) that, when he stated the date, he was "looking at the wrong document". This is not a matter that could undermine the findings of fact made by his Honour on 12 February 2014.

174. As to the submission that the learned Special Magistrate had, it appears, forgotten on the second day of the hearing (some 57 days after the first day) that Mr McElholum had put to Ms Haughton in her "affidavit" that she was "smiling" when Mr McElholum was leaving the court building after the incident. He had put that to her and she admitted that it was a mistake.

175. Despite this, the learned Special Magistrate ultimately summarised the evidence fairly in his decision. He did not particularly rely on the evidence of Ms Haughton, except insofar as it was consistent with the evidence of other witnesses and, most importantly, with the evidence to be seen in the CCTV recording. The error in her affidavit was not of great significance in coming to a decision in the hearing.

176. This was for two reasons. In the first place, the evidence of a number of other witnesses, including one of the security officers, was that Mr McElholum was smiling when he was told to leave the Commonwealth Law Courts building or escorted from it and no-one gave evidence that Ms Haughton was then smiling. Indeed, it was not put to any witness other than Ms Haughton (who denied it) that she was then smiling.

177. Whatever effect such a mistake had on Ms Haughton's credibility, her evidence was well-corroborated by other witnesses and such a step did not undermine it to any appreciable degree.

178. Mr McElholum did not point to any error of fact or finding of credibility in the decision of his Honour attributable to these matters or at all. Accordingly, this ground of appeal is not made out.

179. Mr McElholum's second ground of appeal was that the Court had "misunderstood and did not correctly apply" long established case law holding that "daily activities do not amount to assault". [Grounds (ii) and (iv)].

180. Mr McElholum relied on Collins v Wilcock (1984) 1 WLR 1172 and DPP v JWH (Unreported, New South Wales Supreme Court, Hulme J, 17 October 1997) in support of this ground, submitting that contact with an opaque door "is accepted as part of the life"; in other words, Ms Haughton consented to being hit by an opening door.

181. He also referred to the fact that he had no intention to assault any person. While that may be so, the case for the prosecution was that he was reckless so this is not an error. Recklessness is dealt with below (at [324]-[338]).

182. Mr McElholum submitted that the Court erred in finding "the use of fixed public furniture in a manner that is consistent with its intended used and purpose amounts to a criminal offence" and to "criminalise such an activity intrudes upon the community life in a manner that is undesirable and would inevitably cause mistrust in the judiciary".

183. Mr McElholum cited the following passage from Robert Goff LJ in Collins v Wilcock at 1177:

Generally speaking consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is, within reason, slapped: see Tuberville v Savage (1669) 1 Mod. 3.

184. He further referred to the following passage from DPP v JWH:

Force is not unlawful if it falls within what may be regarded as an incident of ordinary social intercourse such as patting one another on the shoulder to attract attention or pushing between others to alight from a crowded bus.

185. While these statements do state the law, it must also be accepted that not all contact occurring in the course of "ordinary life" will fall within the exceptions referred to in them. For example, while moving between people to alight from a crowded bus may result in some contact that will not constitute assault, that would not be so if a person were deliberately to have their elbows out to make their way vigorously and robustly to the front of the bus by elbowing people. The latter would ordinarily constitute assault.

186. To determine whether an action constitutes assault requires a focus on the precise terms on what was occurring and whether the actions constitute something more than simply going about one's daily life. Thus, Robert Goff LJ in Collins v Wilcock at 1178, noted that:

persistent touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour and so be outside the exception. We do not say that more than one touch is never permitted; for example, the lost or distressed may surely be permitted a second touch, or possibly even more, on a reluctant or impervious sleeve or shoulder, as may a person who is acting reasonably in the exercise of a duty.

In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend upon the facts of the particular case.

188. Carefully opening a door to enter a room is something that constitutes conduct in the ordinary course of life. However, to open a door with vigour and force, knowing that it is being closed by someone on the other side and being indifferent as to whether a person, whom a defendant knows to be standing behind the door, or is aware of that likelihood, could be struck or injured, goes beyond the limits of permissible ordinary conduct.

189. The learned Special Magistrate in his reasons expressly adverted to whether the incident was "just one of those bumps or contacts which people sustain in the normal course of moving around and living in the community". His Honour was clearly aware of the issue raised by Mr McElholum and addressed this correct question.

190. Ms Haughton, in her evidence, stated that she did not consent to Mr McElholum assaulting her by opening the door. Mr McElholum contended that Ms Haughton's lack of consent had to be seen in the light to what she "expressly intended to do". I assume that he was referring to her wish to close the door on Mr McElholum.

191. It cannot be said, as in Mr McElholum's submission, that by closing a door, a person consents to any injury from a person who is outside the door. It is possible to construct a narrative where that may be the case, where, for example, the persons on either side of the door were engaged in a struggle as to whether it be open or shut, but this case has no similarities with that situation.

192. It is simply not a situation where a person is quietly and politely opening a door, unaware of the likelihood that someone is on the other side and a gentle assault is accidentally occasioned. Mr McElholum had, on his admission, heard an occupant of the room ask that the door be closed, he has no business requiring the door to be opened, he admitted that there was someone closing the door, who he must have been aware could be hit by a vigorous and forceful, and uninvited or unexpected forcing of the door open. Apart from being inappropriate, uninvited, unauthorised and unexpected, it was illegal.

193. The decision of the learned Special Magistrate does not show any error in the application of the case law and the findings made were open to his Honour to make. Accordingly, this ground cannot be made out.

Reliance on the evidence of Ms Haughton and Ms Drayton

194. Mr McElholum submitted that the learned Special Magistrate erred in his reliance upon the evidence of two of the witnesses, Ms Drayton and Ms Haughton. [Grounds (v) and (vi)].

195. Mr McElholum submitted that Ms Drayton had conceded that her evidence was not correct as she could not see Mr McElholum when he and Ms Haughton were both standing at the door.

196. Ms Drayton was one of three witnesses, other than Ms Haughton, in the room at the time of the assault. Her evidence, on the whole, was corroborated by the evidence of the other prosecution witnesses, with only some minor discrepancies on peripheral matters.

197. Mr McElholum submitted that Ms Drayton had said that the evidence she gave "could not have been correct as she could not see [him]". A fair reading of the transcript, however, shows that Ms Drayton did not in fact concede that she could not see Mr McElholum; rather in cross-examination she stated that she could see Mr McElholum "from above the waist" as he was standing over Ms Haughton. When challenged on this, Ms Drayton adhered to her evidence, rejecting Mr McElholum's proposition that she could not see him.

198. In any event, this is a peripheral matter and not relevant to Mr McElholum's actions in opening the door. Even if Ms Drayton had made the concession alleged by Mr McElholum, the fact that a witness is incorrect on one matter that is peripheral does not mean that the entirety of the witness' evidence must be rejected. As also noted above, Ms Drayton's evidence was corroborated by Ms Haughton, Ms Moutrage and Ms Howell, as well as the CCTV footage, and it was open for the learned Special Magistrate to rely on her evidence in the way he did.

199. In alleging that the Court had erred in relying on Ms Haughton's evidence, Mr McElholum submitted that no other witness, except Ms Haughton, gave evidence that she had asked Mr McElholum was asked to leave. His Honour, however, did not rely on this fact in his reasons.

200. Further, this is a peripheral matter. Regardless of whether the words were spoken, the fact is that the door was shut by a person in the room, which is a clear indication that the conversation has ended as the occupants were entitled to show, despite Mr McElholum's objections that he was entitled to continue it, a view I do not accept. Even were Ms Haughton incorrect in her recollection of asking Mr McElholum to leave, her evidence is not to be necessarily rejected in its entirety; indeed, the substantial corroboration of it, so far as the elements of the assault were concerned, would justify the learned Special Magistrate in accepting it.

201. As with the evidence of Ms Drayton, Ms Haughton's evidence was substantially corroborated by the evidence of the other three women in the room, as well as the CCTV footage. As is often the case with honest witnesses, there will be discrepancies in their evidence, particularly as to matters that are not central to the issue involved.

203. Mr McElholum, in three of the grounds of appeal in his amended Notice of Appeal, asserted that Special Magistrate Lunney erred in failing to enter a verdict of not guilty where reasonable doubt existed.

204. Mr McElholum submitted that he had produced evidence which was consistent with his innocence and which explained the incident; none of this evidence, he submitted, was disproved by the prosecution and the learned Special Magistrate was bound to find that there was a reasonable doubt of his guilt. [Grounds (xvii), (xviii) and (xix)].

205. In his reasons, Special Magistrate Lunney made it clear that he rejected the evidence of Mr McElholum, as he was entitled to do, instead preferring the evidence of the prosecution witnesses and the CCTV footage.

206. That Mr McElholum gave evidence does not automatically create a reasonable doubt. Mr McElholum's evidence is to be treated the same as that of any other witness. His Honour rejected Mr McElholum's evidence that he opened the door gently and carefully, thus rejecting any explanation consistent with Mr McElholum's innocence.

207. The learned Special Magistrate's decision was one which was open to him on the evidence before him. The evidence of those in the interview room at the time of the assault was largely consistent and each corroborated the evidence of the other. His Honour had the advantage of seeing and hearing the witnesses and, on the issue of credibility, due respect must be given to that advantage: Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479.

208. Accordingly, it was open to his Honour to find as he did and there is no error identified in this ground.

209. In the appeal grounds in his amended Notice of Appeal, Mr McElholum raised a number of grounds related to the CCTV footage of the incident that was before the Court.

210. Mr McElholum submitted that the Court was "enthusiastic" in relying on "poor quality CCTV footage to make findings about subtle movements that could not be determined on the basis of footage of that quality". [Ground (x)].

211. At the same time, Mr McElholum relied heavily on the CCTV in his submissions which, he said, was consistent with his submissions and inconsistent with the submissions of the prosecution. [Grounds (vi) and (xiv)]. That seemed to me to be a difficult submission in the light of his earlier submission, especially as his reliance on the CCTV included such subtleties as that Ms Haughton, he submitted, could be seen on the CCTV trembling and that this could be seen to be with rage and not fear. This was, in my view, not something that the CCTV did, or probably could, show. Nevertheless, I shall deal with it further below.

212. Mr McElholum further submitted that the Court failed to have regard to the fact that not all of the footage showing Mr McElholum and Ms Haughton was obtained. On this basis, Mr McElholum submitted, with no evidentiary basis, that the Court should draw the inference that, because not all the footage was before the Court, the prosecution did not want footage following on from the incident as it would not have assisted a successful prosecution. [Ground (xi)]. He further submitted that his attempts at obtaining access to the other footage had not been successful, which, he asserted, "compromised" his case.

213. Mr McElholum did not explain why, if he had wanted the additional CCTV footage after the incident, which he claimed would have assisted the Court, he did not issue a subpoena for it or otherwise take steps to secure it himself where, his submission was, it would have been obtainable at a trifling cost.

214. Having said that, it is not easy to see how the events following the incident were relevant to the decision of the Court. Clearly, what is most relevant is the record of the incident itself. This footage, while not being of the best quality, was of a sufficient quality to be relied upon, especially when taken alongside the evidence of the witnesses.

215. It seems from his submissions that Mr McElholum thought that such footage might show:

• that Ms Haughton was smiling after the incident; and

• that Ms Haughton was carrying a handbag in the hand that she claimed to have been injured.

216. Having viewed the CCTV footage, I am not satisfied that it would have been possible to see in it whether Ms Haughton was smiling or not. In any event, this matter was put to Ms Haughton in cross-examination, so the issue was not before the Court, but only in the context of a reference in Ms Haughton's statement, that she admitted was in error. Further, Mr McElholum, in the defence case, gave no evidence that Ms Haughton was actually smiling. The first issue was not one before the Court and so the absence of the CCTV footage, so far as this was relevant, was of no prejudice to Mr McElholum.

217. As to the matter of the handbag, Mr McElholum made no reference to it in either cross-examination or in his evidence. Despite the width of the cross-examination, which is recorded in thirty-two pages of transcript, and during which questions were frequently ruled inadmissible as irrelevant, the matter was not mentioned at all. The issue was not one before the Court on the evidence.

218. The criticism of the prosecution is, accordingly, entirely unfounded and the submission must be rejected.

219. Mr McElholum also raised two further matters in his amended Notice of Appeal in relation to the reliance of the Court on the CCTV footage, namely that Special Magistrate Lunney erred in accepting the evidence of witnesses whose evidence was "clearly inconsistent" with the CCTV footage. Special Magistrate Lunney was said further to have erred on finding that Ms Haughton was standing behind the door at the time of the assault, as such a finding is inconsistent with the footage. [Grounds (vi) and (xiv)].

220. Mr McElholum submitted that the CCTV footage clearly showed Ms Haughton to be standing "at the opening of the door at the instant" he opened it.

221. His Honour, in his reasons, clearly provided a reference to the evidence of witnesses and to the CCTV footage when analysing the evidence and stated that he had prepared his reasons with the assistance of a "log" of the footage and, a detailed account of what he had seen occurring in the footage.

222. I have viewed the footage and consider that the findings made by the learned Special Magistrate were open to him. The person identified as Ms Haughton in the footage does not move in front of the door until it is opened the final time, which is consistent with the evidence given by Ms Haughton, Ms Moutrage, Ms Drayton and Ms Howell.

223. Accordingly, I can find no error in the decision of the learned Special Magistrate in relation to these matters.

224. Mr McElholum, in three of his grounds of appeal, asserted that the learned Special Magistrate had shown prejudice or bias to him. These grounds were:

(a) his Honour had taken the view early on that Mr McElholum was a violent person and that the presence of security in the Magistrates Court was therefore required [Ground (xv)];

(b) his Honour, in his decision, failed to consider or acknowledge most of Mr McElholum's evidence and submissions and "overlooked" his cross-examination; [Grounds (xii)) and (xv)];

(c) his Honour failed to approach Mr McElholum's evidence in the same way that he had approached the evidence of the other witnesses and there was nothing in the reasons for decision to suggest that his "evidence was given serious consideration". [Ground (xx)].

225. There is no doubt that both the prosecution and Mr McElholum are entitled to a decision free from bias and the Magistrate must determine the reliability of each witness and make a decision based on the evidence the witnesses have given in court. This is a fundamental basis of the Territory's system of criminal justice, re-inforced by the legislature through s 2 of the Human Rights Act 2004 (ACT). See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 362; [80].

226. In doing so, however, the learned Special Magistrate can accept part of a witness's evidence while rejecting another part of it or accept or reject all of the evidence. This is a fundamental approach to the evidence of witnesses. A Magistrate must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but he or she may use common sense, experiences and wisdom in assessing the evidence.

227. In relation to the first matter, there was no material on the appeal of the matters set out in the submissions that the learned Special Magistrate pre-judged that Mr McElholum was a violent person. The transcript records none of what Mr McElholum suggested; he apparently made no complaint to the learned Special Magistrate; none of the evidence Mr McElholum sought to have adduced was directed to this issue.

228. Indeed, the transcript of 25 October 2013 indicates Mr McElholum greeting the learned Special Magistrate in an apparently friendly manner.

229. No portion of the transcript that I have read suggests an improper predisposition of the learned Special Magistrate to Mr McElholum as to suggest that he was being regarded as a violent person.

231. As to the second matter, Mr McElholum again failed to particularise the way in which the learned Special Magistrate was said to have failed to consider Mr McElholum's submissions, which makes it very difficult to evaluate the appeal ground.

232. In a paragraph in his Honour's reasons, his Honour set out in a clear and admirably concise way the essence of Mr McElholum's case as he had pleaded it. It referred to each aspect of what Mr McElholum had raised in his challenge to the allegation of the offence, save for the vast amount of irrelevant material that he had sought to address.

233. The only suggestion in Mr McElholum's submissions to me that suggested some basis for this ground was that the learned Special Magistrate referred expressly to the written submissions of the prosecutor. In that sense, it would have been preferable for the learned Special Magistrate to have referred to both. That he did not, however, does not mean that he did not read or have regard to the submissions of Mr McElholum.

234. To make a mere assertion that the submissions were not read and only to rely on a reference to the receipt of the other party's submissions is not sufficient to make out the case that the learned Special Magistrate erred in this way. In particular, there is no material on which I could find that any particular submission, much less one that was, or should have been, significant or determinative, was ignored by the learned Special Magistrate. Mr McElholum simply failed to identify this such material.

236. There is no doubt that the evidence of an accused person is to be treated in the same way as the evidence of any other witness. See R v Ong (2001) 80 SASR 537 at 539; [9]-[10]. The judge of the facts can, in the same way as for any other witness, accept or reject the whole or any part of the evidence of the Accused. The court should give it no more or less weight than the evidence of any other witness. As noted, however, the court may reject the whole of an accused's evidence. The same applies to the evidence of a Defendant in the Magistrate's Court.

237. Nothing in the reasons suggests that the learned Special Magistrate failed to consider the evidence of Mr McElholum in the same way as his Honour considered the evidence of every other witness and nothing was said in the submissions to substantiate this. That the learned Special Magistrate rejected the evidence of Mr McElholum, as his Honour was entitled to do, does not mean that it has not been considered in the same way as the evidence of the other witnesses.

238. The highest this came was when Mr McElholum referred to the "eight page decision" and that "the extensive evidence and submissions given by the appellant was merely not [sic] by the court as follows" and the two paragraphs of the decision are set out.

239. In fact, Mr McElholum omitted to refer to a third paragraph which refers to the cross-examination of Mr McElholum and which must also be taken into account.

240. The "extensive" evidence of Mr McElholum occupied, in fact, only five pages of the transcript recording his evidence-in-chief, fifteen pages of cross-examination and quarter of a page in re-examination. Given that the complainant's evidence constituted twelve pages of transcript of examination-in-chief and thirty-three pages in cross-examination, but was summarised in seven paragraphs, it cannot be said that there was a disproportionate consideration given to her evidence, especially as its recounting included much of the circumstances and actions which Mr McElholum also described but which it was not necessary to repeat.

241. While such a "mathematical" approach clearly has significant limitations, it is a very broad yardstick by which to measure the thrust of Mr McElholum's criticism.

242. More important, however, would be an assessment of any evidence or submission that had been ignored or overlooked. Having read the entire transcript a number of times, I can find no relevant issue of substance in either the evidence or the submissions that has been overlooked by his Honour. Mr McElholum failed to identify any such matters of substance or significance and failed to identify what of significance his Honour had omitted and which should have altered the decision.

243. This ground also cannot be sustained on the submissions made.

244. Accordingly, I conclude that Special Magistrate Lunney did not show any prejudice or bias to Mr McElholum at the hearing or in his decision. These grounds of appeal cannot be upheld.

Finding that Mr McElholum was "demanding and angry"

245. Mr McElholum submitted that Special Magistrate Lunney erred in finding that he was "demanding and angry" as there was no evidence before the Court that he had, at any time, said anything that was "threatening, offensive, inappropriate or even unreasonable". [Ground (xiii)].

246. Unhelpfully, Mr McElholum, as with many of his appeal grounds, did not specify where in the reasons of the learned Special Magistrate this finding was said to have been made.

247. The learned Special Magistrate, in his decision, referred to Ms Haughton's evidence that she said that Mr McElholum was very demanding and that, later, she said that, in saying "That's not good enough", he was demanding and angry. She also said that his demeanour was menacing. This was an accurate recording of the evidence that was given.

248. Furthermore, Mr McElholum's submission that the only evidence before the Court of a raised voice was that the raised voice belonged to a female. This is simply not correct, as Mr McElholum himself, in his oral evidence, testified that he had spoken in a "loud" voice to Ms Haughton.

249. Neither matter was a critical matter for the Court to decide and, indeed, the learned Special Magistrate made no finding on either issue. The Court was not required to find whether Mr McElholum was demanding or angry or that Mr McElholum had said anything that was "threatening, offensive, inappropriate or even unreasonable"; the question before it was one of whether Mr McElholum was reckless as to whether the opening of the door to the interview room would inflict force on Ms Haughton or cause her fear.

251. Mr McElholum submitted that the Court had erred in failing to take into account the fact that, at the time Mr McElholum opened the door again, there was a conversation in progress that Mr McElholum wished to continue, therefore the opening of the door was not unreasonable. [Ground (viii)].

252. Additionally, Mr McElholum submitted that he was simply seeking to act in accordance with a direction made by the Federal Magistrate that the parties discuss the matter before coming back to Court later that day and, further, his actions were consistent with the "reasonable suggestion" of the Federal Magistrate. [Ground (iv)].

253. Mr McElholum made much of what really were irrelevant issues which he seemed to submit meant that the findings of the learned Special Magistrate must have been in error.

254. He submitted that Federal Magistrate Brewster had urged the parties to negotiate and that such negotiation is, as a policy matter, to be encouraged. Such negotiation should not be "discouraged by an overzealous application of the criminal law".

255. Both of these matters may be accepted. It was, however, not, from the transcript, a direction as suggested by Mr McElholum, but a suggestion. Neither of these matters, however, justify everything that may be done in pursuit of this suggestion. Indeed, that is the very point of these proceedings. While negotiation is desirable, this does not require either party to agree to what the other offers. See Ezekiel-Hart v Law Society of the Australian Capital Territory [2012] ACTSC 135 at [29].

256. To negotiate properly requires each party to consider his or her own position carefully. That Ms Howell was taking more time than Mr McElholum thought necessary is completely irrelevant. She was entitled to take all the time that she needed.

257. Nothing that was said by Brewster FM entitled Mr McElholum to interrupt that process or demand that it come to an end.

258. Mr McElholum made much of his assertion that Ms Haughton had "no instructions" to close the door as she did. That completely misses the point. It was crystal clear on the evidence that Ms Howell was engaged in discussions with her lawyers and she was entitled to do so without interruption and for as long as she and they needed, or considered they needed, to engage in that process.

259. If Mr McElholum thought there was any problem, he was able to raise that with the Federal Magistrate later and have it there resolved.

260. The fact was that the interview room was where discussions were being held between lawyer and client, discussions which the law holds are essentially private and confidential; indeed, they are covered by privilege which the courts are sensitive to uphold. Thus, it was perfectly proper that they should be held behind closed doors. That was a decision for Ms Howell and her lawyers.

261. Thus, to shut the door was proper and Ms Drayton and Ms Haughton were entitled to do so. Mr McElholum had no entitlement to interrupt or to stop them closing the door or, indeed, to open the door himself unless invited to do so. Nothing that Brewster FM said gave him that right. Nothing Ms Howell said gave him that right.

262. He had, of course, a right to knock on the door. He made no challenge to the fact that Ms Howell wanted the door shut. Indeed, she had that right even if her lawyer was in mid-sentence with someone else. That it may have been discourteous or inefficient or against Mr McElholum's wishes is irrelevant. That action terminated any licence Mr McElholum had to open the door after it had been, or was being, closed by Ms Howell's lawyers.

263. Mr McElholum saw only his own interests and saw them as being frustrated by the delay, whether it was inordinate or unreasonable or not. The fact was that his action in opening the door was not authorised in the situation while Ms Haughton's closing the door was. He was certainly not authorised to open the door forcibly and vigorously, as found by the learned Special Magistrate.

265. Mr McElholum submitted that Ms Haughton's action of closing the door was "more blameworthy" than Mr McElholum's action in opening the door. [Grounds (iv) and (vi)].

266. Mr McElholum also further submitted in his grounds of appeal that the learned Special Magistrate erred in finding the opening of a door to be more culpable than the closing of a door, especially in light of Ms Haughton's evidence that she wished to shut the door in his face. [Ground (xvi)].

267. Mr McElholum submitted, that this involved an issue of public policy, submitting that it is not sound public policy to investigate and prosecute criminal matters on the basis that one person "had got in first" and reported the matter and prosecuting his actions was not a matter of sound public policy as it would discourage negotiations in civil matters were there to be "an overzealous application of the criminal law". [Ground (xvi)].

268. I have already addressed the issue of negotiations above (at [252]-[253]). This submission adds nothing to that.

269. As to who "got in first", the evidence of Constable Hughes was that he had phoned Mr McElholum on two separate occasions to discuss the matter and, when he was unsuccessful at making contact, arranged for officers from a police station in Mr McElholum's town of residence to attend his residence and extend to him the opportunity to participate in the interview. At no time did Mr McElholum take this opportunity or seek to make a complaint to police about the actions of Ms Haughton. It was not until the time of the trial that Mr McElholum complained of Ms Haughton's actions.

270. Mr McElholum, in his sworn evidence at trial, said that it was his opinion that the events of 22 August 2012 had been unremarkable to him, by inference that he did not think that there was anything about Ms Haughton's actions requiring complaint and, accordingly, he had no intention of making a complaint.

271. Further, it is not for the courts to determine what offences are prosecuted. The police, after investigating the matter, made a decision that criminal charges were appropriate. The court's role is to hear matters brought before it and determine them according to law.

272. Prosecutorial discretion in bringing a charge has, in a number of cases, been ruled to be very wide and unconstrained, but with some limits. See Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501; Likiardopoulos v The Queen [2012] HCA 37; (2012) 291 ALR 1 at 3; Elias v The Queen [2013] HCA 31; (2013) 298 ALR 637 at 647-8; Magaming v The Queen [2013] HCA 40; (2013) 87 ALJR 1060. Dawson and McHugh JJ, in Maxwell v The Queen, at 514, said:

No doubt a court may, if it thinks it desirable to do so, express its view upon the appropriateness of a charge or the acceptance of a plea and no doubt its view will be accorded great weight. But if a court does express such a view, it should recognise that in doing so it is doing no more than attempting to influence the exercise of a discretion which is not any part of its own function and that it may be speaking in ignorance of matters which have properly motivated the decision of the prosecuting authority. The court's power to prevent an abuse of its process is a different matter and the question of its exercise could only arise in this context if the prosecuting authority were seen to be acting in an irresponsible manner. That, as experience happily tells, is seldom, if ever, likely to occur.

273. There has been no evidence to suggest that an abuse of power has occurred. The police had no complaint from Mr McElholum but had a complaint from Ms Haughton and understood their duties as required.

274. For the reasons set out above (at [257]-[260]), it cannot be said that Ms Haughton had acted in a blameworthy way. The position is relatively clear. In accordance with the suggestion of Brewster FM, Ms Howell was seeking advice from her lawyers about the terms of negotiations to be had with Mr McElholum.

275. It needs also to be noted that Brewster FM indicated that the matter would be dealt with "this afternoon [i.e. on 22 August 2012] not before 3.30". Thus, by 12.20 pm when the incident happened, there was still some three hours left for any negotiation. I accept that Brewster FM adjourned at 10.57am so the taking of instructions had occupied in excess of an hour. That may, to an impatient person, who has no insight into the fact that what to that person is a simple proposition may to another be more problematic, seem excessive. That is, however, beside the point.

276. Objectively, there was no urgency at the time of the incident for Ms Howell or her lawyers to be involved in speaking to Mr McElholum, no matter how obvious, simple or appropriate he considered his position to have been.

277. After he opened the door initially and had a conversation with the occupants of the room, the evidence of all witnesses was that Ms Howell sought to have the intervention terminated and the door closed.

278. Ms Drayton was clearly a little hesitant about closing the door; Ms Haughton was not. Mr McElholum's licence to interrupt, if any, had been reasonably and properly terminated, whether he was mid-conversation or not. In order to give effect to that termination, Ms Haughton was entitled to shut the door.

279. She was not, in the ordinary course, entitled to assault Mr McElholum in doing so, but even on Mr McElholum's evidence she did not do so.

280. Despite Mr McElholum's insistence, but with no argument rationally to support it, that Ms Haughton was somehow "blameworthy" in closing the door, that submission cannot be accepted as a matter of fact or law.

281. Accordingly, I can find no error in the decision of the learned Special Magistrate.

282. In one of his appeal grounds, Mr McElholum made a reference to the failure of the learned Special Magistrate to receive Ms Haughton's "affidavit". [Ground (xi)].

283. It is not entirely clear to what Mr McElholum is referring. Police, when investigating allegations, take statements from witnesses. Those statements invariably have a "preamble" along the following lines:

This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true.

284. At the end, they are signed and witnessed, again invariably along the following lines:

I read this statement before I signed it.

[Signature and name of the statement's maker]

Statement taken and signature witnessed by me about [time] on [date] at [place].

[Signature, name and occupation of witness].

285. None of this, however, makes it an affidavit.

286. I can infer from some statements made by Mr McElholum that Ms Haughton may have been a witness in the family law proceedings of Ms Howell in the Federal Magistrates Court. Affidavits are commonly used in those proceedings. It may be that it was an affidavit made by Ms Haughton for those proceedings to which Mr McElholum was referring. Such affidavits may, subject to the rules of the court in which they are filed (e.g. rr 2903, 4053 of the Court Procedures Rules 2006 (ACT), r 15.06 of the Family Law Rules 2004 (Cth)) be used in other proceedings, if otherwise admissible: British Thomson-Houston Co Ltd v British Insulated and Helsby Cables Ltd [1924] 2 Ch 160; Wentworth v Rogers (No 12) (1987) 9 NSWLR 400 at 423.

287. The admissibility is governed by the Evidence Act. Mr McElholum did seek to tender the affidavit when he was cross-examining her, though he initially did seek to tender a statement apparently prepared by Ms Haughton which was not, however, identified before it was admissible. He did refer to her "affidavit" later and quoted from it. Ms Haughton did not deny that she said what he quoted, but explained what she said, namely that she had made an error. Mr McElholum did not, at that stage, tender the affidavit. He only did so when he sought to put it to another witness in an inappropriate context. It was then marked for identification and the learned Special Magistrate said "we'll have a look at its admissibility later on".

288. The affidavit may have been admissible under ss 43, 60 and 65 of the Evidence Act, though in the latter case only if notice in writing, or leave of the court, had been given.

289. Nevertheless, the fact is that neither Mr McElholum nor the learned Special Magistrate did return to consider the matter. That is to say, Mr McElholum did not ultimately tender the document and the learned Special Magistrate did not raise with him whether he wished to do so.

290. Mr McElholum did not indicate on the appeal the purpose of the tender by identifying to what the document, he claims, is asserted to be relevant. I can infer that the issue of the credibility of Ms Haughton was involved, though I have addressed that earlier (at [193], [200]). This seemed to be raised in two ways.

291. The first matter might be the suggestion that, in her oral evidence, Ms Haughton denied that she smiled as Mr McElholum left the building, whereas in her "affidavit" she said that she was. This matter, however, was fully dealt with on the evidence as adduced and the tender of the document could have made no difference.

292. The second matter was an inference that I could draw form Mr McElholum's rather elliptical references that the document might show that the injury Ms Haughton suffered as trifling. As I have noted below (at [292]-[296]) the extent of the injury is irrelevant to the offence and so, for this purpose, would not have advanced his case.

293. For any further purpose, I am entirely speculating, but, if Ms Haughton, in the document, said that the injury she suffered was trifling, then that does not seem inconsistent with her oral evidence in which she said that initially she did not notice anything but only later that it was "aching". This was not challenged by Mr McElholum in cross-examination. He certainly did not suggest that she described it inconsistently in any document. To permit the document to be tendered for a credibility purpose without putting an inconsistency in it to Ms Haughton would be wrong.

294. Mr McElholum has suffered no prejudice by the omission of the "affidavit" which he failed to tender.

295. Mr McElholum submitted that the learned Special Magistrate erred in finding that Ms Haughton had suffered an injury; there was no evidence before the Court that she had, in fact, suffered an injury [Ground (xxii)]. This ground was added to the Notice of Appeal when it was amended.

296. Again, Mr McElholum did not identify where in the learned Special Magistrate's reasons such a finding was made. His Honour did record Ms Haughton's evidence that "later she had a painful wrist".

297. There is, however, no requirement for proof of the offence of assault that there be any injury or harm, even where the assault is constituted by a battery. As Lane LCJ said in Faulkner v Talbot (1982) 74 Cr App R 1 at 7 when identifying the elements of the offence of assault:

An assault is any intentional touching of another person without the consent of that person and without lawful excuse.

298. In any event, Mr McElholum never suggested to Ms Haughton in his lengthy cross-examination, that she had not been injured, that she did not have a painful wrist. The ground of appeal is not appropriate in those circumstances. See Browne v Dunn (1893) 6 R 67.

299. The learned Special Magistrate, in his reasons, did not make a finding as to whether Ms Haughton had suffered an injury, nor was he required to; that the door struck Ms Haughton is sufficient.

301. In a number of the grounds of appeal in the amended Notice of Appeal, Mr McElholum alleged that the evidence of witnesses called by the prosecution was tainted by interest or was perjured. Thus, he submitted that there was an ulterior motive on the part of "several prosecution witnesses", that evidence was manufactured and that Special Magistrate Lunney erred in failing to accept evidence that Ms Howell had "a history of reporting unmeritorious matters to police services with a view to causing distress". [Grounds (viii), (ix) and (xxi)].

302. Mr McElholum claimed Ms Haughton, Ms Moutrage, Ms Drayton and Ms Howell all had an ulterior motive. Mr McElholum submitted that these witnesses were seeking to gain advantage in the family law proceedings between him and Ms Howell by these proceedings.

303. Mr McElholum first submitted that the Court had erred in failing to acknowledge that these witnesses were involved in the family law matter. This submission, however, is not correct. Special Magistrate Lunney clearly acknowledged that the incident occurred in the context of a family law matter.

304. The submission appeared to be based on the fact that Ms Haughton, though clearly briefed to appear for Ms Howell at the time of the incident, did not appear at the final hearing. It was asserted that this was so that she could appear for Ms Howell as a witness.

305. This assertion was supported by assertions about the contents of a letter apparently written to the Federal Magistrates Court by Ms Moutrage. That letter, however, was not in evidence before the learned Special Magistrate. In addition, the amended Notice of Appeal did not seek to have it admitted as further evidence on the appeal and it was, in any event, not so admitted.

306. Accordingly, it is not appropriate to have regard to Mr McElholum's assertions about its contents in this appeal.

307. Despite apparently being a lawyer, Mr McElholum appears unaware of a number of matters of law, practice and procedure. For example, counsel should not act as counsel and witness in the same case, as was held in R v Secretary of State for India; Ex Parte Ezekiel [1941] 2 KB 169 at 175. This would have prevented Ms Haughton being both.

308. In any event, the learned Special Magistrate ruled that evidence about this matter was irrelevant and rejected it, prohibiting Mr McElholum from asking questions about it, though, despite that ruling, Mr McElholum continued to try to ask such questions. It is important to note that Mr McElholum has not challenged any of those rulings in his amended Notice of Appeal.

309. Mr McElholum seemed to suggest in his submissions that there was some kind of conspiracy between the parties and that the report of the incident to police was designed to gain an advantage in the family law proceedings. There is no factual basis in the material before me to support such a theory. The incident was reported to a security officer of the Commonwealth Law Courts promptly, the evidence of the various parties was not identical, usually a matter indicative of truth, because identical recollections of different witnesses, especially as to inessential facts, is often an indication of concoction and it is not explained what benefit Ms Haughton would obtain from such a device.

310. I further note that a number of facts asserted in purported support of these submissions were not proved in evidence that was before the learned Special Magistrate, sought to be admitted as further evidence in the amended Notice of Appeal, nor admitted on the appeal.

311. I also note that lawyers are obliged to exercise the greatest of care before making allegations of fraud, dishonesty or misconduct. To allow such allegations to be made "without the fullest investigation would be an abuse of the absolute protection against actions for slander which the law affords to counsel": Oldfield v Keogh [1941] NSWStRp 33; (1941) 41 SR (NSW) 206 at 211 per Jordan CJ citing Lord MacMillan, "The Ethics of Advocacy" in Law and Other Things (Cambridge University Press, 1937) pp 191-2. Though not apparently practising as a lawyer, I would have expected Mr McElholum to be aware of such ethical considerations.

312. There was nothing in the speculative assertions of Mr McElholum that would have reached the level of satisfaction required by the law to justify his submissions. They would have been improper assertions by a practitioner holding a practising certificate.

313. Perhaps even more serious, and also subject to the ethical restraint referred to above (at [308]), were Mr McElholum's assertions that the witnesses manufactured their evidence. This is effectively an assertion that the witnesses perjured themselves, a criminal offence.

314. There is an important difference between the rejection of a person's evidence and a finding that he or she deliberately lied: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 268; O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 208 and 230. However, in this instance this does not arise, as the learned Special Magistrate accepted the evidence of the witnesses in question.

315. Their evidence was relevantly corroborated by the recording of the CCTV footage which was before the Court. Reference to this footage was made in the decision of his Honour and linked to the evidence of the witnesses.

316. Nothing in Mr McElholum's submissions justified his assertion. There was one passage where the transcript is unclear but Ms Haughton may have conceded that her evidence was in error, but this is a long, long way from an assertion of manufacturing evidence.

317. The other assertion was that Ms Moutrage said she had touched her client but Ms Howell said that Ms Haughton had done so. These different versions do not justify the very serious assertion that evidence was manufactured.

318. In his appeal, Mr McElholum also raised the issue of Ms Howell's past reporting of "unmeritorious" incidents to the police, questions about which Special Magistrate Lunney properly ruled as inadmissible.

319. Given this ruling, which was not challenged on the appeal as an error, it was not appropriate to raise the matter on the appeal.

320. In any event, there was no evidence, either before the learned Special Magistrate or in the appeal, that could satisfy even a reasonable basis for the assertion that Ms Howell had made any such complaints, that they were unmeritorious or that they had been made with the intention of causing Mr McElholum any distress.

321. Ms Howell was, in any event, not the Complainant in the prosecution and the assertions were, as the learned Special Magistrate properly ruled, irrelevant. That Mr McElholum sought to rely on Ms Howell's evidence to undermine the credibility of Ms Haughton suggests that he was not even alleging that these complaints undermined Ms Howell's credibility, on which he relied. In any event, her evidence was, to a large extent, corroborated by the recorded CCTV footage and the evidence of the other witnesses.

322. Ms Howell's evidence was supported by other evidence that was before the Court.

323. Accordingly, I can find no error in the decision of the learned Special Magistrate on these grounds.

324. The next ground with which I will deal is that the learned Special Magistrate erred in the application of the requirement of 'recklessness' to the facts. [Ground (iii)]. He asserted that the learned Special Magistrate "did not understand and did not correctly apply the criminal standard of recklessness". Mr McElholum, however, did not explain how he asserted that the learned Special Magistrate "misunderstood" the criminal standard of recklessness.

325. Recklessness is a fault element (mens rea) sufficient to support a conviction of the offence of assault if the relevant physical elements (actus reus) are made out.

326. Recklessness has been defined both at common law and by statute. The latter is to be found in s 20 of the Criminal Code 2002 (ACT). It, however, does not apply to offences that were in force prior to 1 January 2003 unless the offence was "omitted and remade (with or without changes)" or the relevant provision was expressly applied by statute or subordinate law: s 8 of the Criminal Code. Neither of these matters are applicable. Accordingly, the common law applies to the offence with which Mr McElholum faced.

327. The common law as to recklessness has been set out in a number of decisions. Thus, in Commissioner of Police v Caldwell [1982] UKHL 1; [1982] AC 341, Lord Diplock, with whom Lords Keith of Kinkel and Stoskill agreed, said of recklessness at 353-4:

'Reckless' as used in the new statutory definition of the mens rea of these offences is an ordinary English word. It had not by 1971 become a term of legal art with some more limited esoteric meaning than that which it bore in ordinary speech - a meaning which surely includes not only deciding to ignore a risk of harmful consequences resulting from one's acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where, if any though were given to the matter, it would be obvious that there was.

328. That approach was followed by the NSW Court of Criminal Appeal in Williams v R (1990) 50 A Crim R 213 where Badgery-Parker J, with whom Gleeson CJ and Wood J agreed, approved (at 222-3) as "adequate" the directions to a jury of recklessness in the content of a trial for an offence of assault occasioning actual bodily harm, namely

... he [the accused] hit something, the ear, not caring whether it did or did not cause harm to Mr French [the victim], physical harm.

Badgery-Parker J then summarised the concept of recklessness at "no more than foresight of the possibility of harmful consequence".

329. The learned Special Magistrate was well alive to these considerations. His Honour clearly and accurately identified the awareness of Mr McElholum needed to make out the element of recklessness.

330. His Honour found that Mr McElholum was aware that there were four persons in the interview room and, when the door was being shut, he could see that two of them were not shutting the door, leading to the inevitable inference that at least one or both of the others were doing so.

331. His Honour also found that there was a risk, in Mr McElholum's vigorous opening of the door, that he would cause one or both of those persons to be struck by the door. In finding that he had "clear knowledge" of such persons behind the door, Mr McElholum was taking a risk of the assault to which he was indifferent. There was no fact to which Mr McElholum could point that would have justified his action in all the circumstances as described by his Honour.

332. Mr McElholum said that he expected that the four occupants would be seated, but that is inconsistent with one of them (at least) closing the door.

333. That the door was opaque, as submitted by Mr McElholum and evident on the CCTV footage, makes it crystal clear that he could not exclude the fact that one of the occupants was closing the door, which the CCTV shows had not been fully closed and was still in process of closing, when he vigorously opened it.

334. Mr McElholum also seemed to submit that since Ms Drayton had "assumed responsibility for opening and closing the door" and since she had not been assaulted, he could not have had the relevant recklessness. This assumes that a defendant must know the identity of the person said to be assaulted. That, however, is not the law. Knowledge of the actual identity of the victim of an assault is not an element of the offence, so long as some person is at risk and the defendant is aware of this.

335. Mr McElholum submitted that he could not know that Ms Haughton had replaced Ms Drayton as the closer of the door. That is irrelevant. What is relevant is, as the recorded CCTV footage shows, that the door was being closed when Mr McElholum was opening it and that required a person (the precise identity being irrelevant) doing that - closing the door - which person was clearly, therefore, at risk of being assaulted by him.

336. I accept, as he submitted, that he probably could not foresee that Ms Haughton would have moved over to close the door. For a proper application of the criminal standard of recklessness, however, that was irrelevant.

337. Without any evidentiary basis, Mr McElholum then submitted that Ms Haughton "had positioned herself in a position that would not ordinarily be occupied by a person on closing the door". Given that he said he could see neither Ms Drayton nor Ms Haughton and that Ms Haughton was actually closing the door, this submission cannot be sustained.

338. What Mr McElholum's submissions overlook is that the door was being closed when he "vigorously" re-opened it. This renders most of his submissions on the ground entirely irrelevant. This ground of appeal is not made out.

339. Mr McElholum submitted that the learned Special Magistrate erred in relying on the decision in R v Ramalingam, as he submitted that the case was completely distinguishable on its facts. [Ground (v)].

340. Mr McElholum made an oral submission that the "common daily practice of manipulating a door is quite distinguishable to doing something that is inherently dangerous", distinguishing the facts between that authority and this case.

341. The facts in R v Ramalingam were that the Defendant had intended to strike his son, but had hit his wife instead when she intervened and physically placed herself between her son and the Defendant.

342. The factual circumstances in this case are, as Mr McElholum correctly submits, different. In both cases, however, the charge was common assault under s 26 of the Crimes Act, with the prosecution in both R v Ramalingam and the present case particularising the common assault as having occurred due to recklessness.

343. Thus, the legal situation was the same. It is appropriate legal reasoning to rely on legal principles in cases involving the same legal issues, even if the facts are different.

344. There are, of course, circumstances where the facts are so relevant to the articulation of the legal principle that the case said to be a precedent is, nevertheless, distinguishable. As Professor Julius Stone pointed out in his article "The Ratio of the Ratio Decidendi" (1959) 22 MLR 597, much depends on the level of generality which is to be chosen for the purposes of reliance on the earlier case as having precedental value.

345. The learned Special Magistrate was bound, of course, by decisions of this Court. See R v Casey; R v Smythe [1977] Qd R 132 at 134.

346. In the case of R v Ramalingam, the statement of the elements of the offence of assault and the concept of recklessness were principles of law independent of any particular facts. Similarly, my earlier reference (at [294]) to the elements of assault as articulated by Lord Lane LCJ was to the elements which transcend the material facts which, in that case, were quite different from these; that was a case of indecent assault, but the elements of the assault were, of course, the same.

347. The learned Special Magistrate did not misapply his reliance on R v Ramalingam and properly applied the relevant principles that were set out in that case and which, despite the differences in facts, even material facts, were applicable here.

348. It is of concern that a person such as Mr McElholum, who is apparently a lawyer, has such inadequate an appreciation of legal reasoning and the processes of the common law.

349. There is no basis to distinguish R v Ramalingam from the present case and this appeal ground cannot succeed.

350. As he did with the learned Special Magistrate's reliance on R v Ramalingam, Mr McElholum also asserted that the Court erred in its interpretation of the judgment in Williams as the case was also, he submitted, factually distinguishable. [Ground (iv)].

351. The facts in Williams were that the Defendant was involved in a series of fights with the complainant in a pub. In the second fight, the Defendant severed a portion of the complainant's ear with his teeth. He was charged with one count of malicious wounding and one alternative count of assault occasioning actual bodily harm.

352. While the facts are obviously different, the learned Special Magistrate referred to this decision in his reasons in relation to the principles of recklessness. While the facts are different, the principles enunciated in relation to recklessness remain relevant to the present case and, as with R v Ramalingam, are applicable independently of the facts of the case.

353. His Honour did not err in his application of the principles set out in Williams. This appeal ground cannot be sustained.

354. I have carefully considered all the grounds of Mr McElholum's appeal against the conviction entered in the Magistrates Court. Mr McElholum has not made out any of the grounds of his appeal against conviction. As a result, the appeal against conviction must be dismissed and I will do so.

355. As well as appealing the conviction, Mr McElholum also appealed the sentence imposed by the learned Special Magistrate. While it was not clear from the amended Notice of Appeal, Mr McElholum submitted in the hearing before this Court that a non-conviction order under s 17 of the Sentencing Act should have been made.

356. I have set out the details of the sentence above (at [12]).

357. I have recently set out some principles relating to non-conviction orders in Roseby v Harman [2014] ACTSC 125 at [39]- [49]. I rely on what I there said.

358. In the latter case, the learned Magistrate had declined to make a non-conviction order commenting that there was "nothing particularly remarkable" in the circumstances.

359. I held that this was a gloss on the legislation and continued at [81]-[82], [85]:

... All that is required is that one or more of the specified factors provide a sufficient reason for a reasonable person to find that it would be appropriate to make such an order.

A sentencing discretion requires a balancing of all the relevant factors so as to show that the discretion to make a non-conviction order is appropriately exercised ...

Nevertheless, neither singly nor in combination are the circumstances required to be remarkable; the court must simply address the relevant factors and determine whether they led to the courts view that the discretion should be exercised in the particular circumstances.

360. It must also be accepted as the Federal Court identified in Higgs v The Queen [1999] FCA 1562 at [3] that the recording of a conviction is the usual result of a guilty verdict or a plea of guilty to the offence charged.

361. I turn now to the grounds raised by Mr McElholum's appeal against sentence.

362. Mr McElholum submitted that Special Magistrate Lunney erred in "overstating the gravity of the alleged offence". [Grounds (i) and (ixx)].

363. Mr McElholum submitted that his Honour dismissed his submission that the assault was "trivial", despite two prosecution witnesses describing the incident in the same terms.

364. Mr McElholum further submitted, in his amended Notice of Appeal and also in his oral submissions, that he had shown the CCTV footage to "no fewer than twenty" lay people, all of whom have thought the matter was trivial also. Again, this was an assertion of fact not before the learned Special Magistrate and not admitted on the appeal.

365. In any event, while the recorded CCTV footage was a central part of the case, the evidence of the witnesses was also relevant to the seriousness of the offence and there was no suggestion that the "20 people" had been given a transcript of the evidence, much less, of course, had heard and seen it presented.

366. The views of an unidentified section of the community is not a relevant factor in determining the level of seriousness that a court should find applicable to any particular offence, even if an identified group could be relevant, a proposition I find hard to accept.

367. Mr McElholum submitted that the Court erred in "misinterpreting and overstating the prosecution's submissions as to the gravity of the offence".

368. The prosecution, in the sentencing proceedings, submitted that the matter was at the lower end of the spectrum of common assault, a submission that the learned Special Magistrate accepted, though his Honour did not find that it was trivial. His Honour's reasons were not entirely clear. That the learned Special Magistrate imposed a small fine is, however, evidence of acceptance of this submission.

369. His Honour did, however, refer to the deliberate force used by Mr McElholum to open the door which was being closed on him. That would, in the circumstances, be available as a reason why the learned Special Magistrate may have found that the offence was not trivial.

370. I do not see errors in the findings of the learned Special Magistrate. There is nothing in the sentencing transcript to suggest that the learned Special Magistrate overstated the gravity of the offence; there was sufficient material before his Honour to justify his finding as to the seriousness of the offence.

371. His Honour also adopted the submission of the prosecutor that there was some "transient hurt" felt by Ms Haughton and that it occurred within the precincts of the court, by which I take it that it was a public place where Ms Haughton was going about the duties of her office.

372. Mr McElholum further submitted that Special Magistrate Lunney erred in placing any significance upon the location of the assault, being a court building. [Ground (ii)]. Mr McElholum asserted that he, as a litigant, had "every right" to be at the Federal Magistrates Court on that day and, in fact, his personal attendance was required.

373. Mr McElholum further asserted that an assault in a court building is no more significant that an assault that occurs in a private location.

374. While Mr McElholum certainly possessed the right to be within the bounds of the court precinct, this is not an unlimited right and does not give him the right to assault other people.

375. A court precinct is a place where people should be able to expect the law to be observed at all times. Further, as I said in Grimshaw v Mann [2013] ACTSC 189 at [51]:

... intermediate Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious. See, for example, R v Freestone [2009] QCA 290 at [30], Ludeman v R [2010] VSCA 333; (2010) 208 A Crim R 298 at 321; [132], Smith v Tasmania [2012] TASCCA 3 at [32], R v Edwards [2012] QCA 117 at [23], Shoard v Van Der Zanden [2013] WASC 163 at [41].

376. This is, of course, not to say that assaults that occur in the location of a private home are not serious.

377. Accordingly, I find that the learned Special Magistrate did not err in his findings as to the severity of the offence.

378. Mr McElholum next submitted that the learned Special Magistrate should have taken into account evidence that "the prosecution witnesses acted in concert to entrap" him. [Ground (iii)].

379. Entrapment, if made out, is a matter to which, under s 33(1)(q) of the Sentencing Act, a sentencing court must have regard.

380. There is, however, no evidence of entrapment in this case. This submission is unsustainable. Mr McElholum argues from the incorrect position that he was entitled to continue the conversation he was having with Ms Moutrage even though her client wished it to end, that the door was closed "without warning or any obvious justification" and that he was entitled to re-open the door to continue the conversation. Each of these arguments are wrong and have no basis in law or fact.

381. Mr McElholum then made the rather startling submission that these matters meant that the "witnesses for the prosecution actively facilitated the offence". There is no evidence of this.

382. The fact is that Mr McElholum had no entitlement to engage those persons in the interview room in any conversation with him. It was desirable that, as agreed by Brewster FM, there be negotiations but his Honour had not directed that. In any event, Ms Howell was entitled to take as long as she liked to obtain advice from her lawyer and give them instructions.

383. Ms Howell gave evidence that she said, "Close the door" as she wanted, as she was entitled, Mr McElholum "to go away, leave us alone". In the extensive cross-examination of Ms Howell, it was never suggested to her that she did not use these words.

384. There is no basis for the submission that the persons in the interview room sought to, or did, entrap Mr McElholum. Even were it so, it is not entirely clear how that would be relevant to sentencing. The ground is not made out.

385. Mr McElholum submitted that excessive weight was placed on his prior criminal history for various reasons. [Ground (i)].

386. First, he set out in his amended Notice of Appeal that the learned Special Magistrate found that he had previously been afforded leniency and had a non-conviction order made in that matter on the basis of submissions of the prosecution, without there being any court records or court transcripts before his Honour.

387. In fact, Mr McElholum's criminal record was before Special Magistrate Lunney, having been tendered and received as an exhibit in sentencing. This document was not, for some reason, before the Supreme Court. The transcript of the sentencing proceedings clearly shows it being admitted without objection. It was, in fact, marked as an exhibit. See Grimshaw v Mann at [19]-[23]. Accordingly, Mr McElholum's submission that there was no evidence before the learned Special Magistrate is unfounded and inaccurate.

388. Mr McElholum then submitted that the learned Special Magistrate relied on an earlier Court extending leniency to Mr McElholum in an earlier matter in 2002 of failing to leave premises. His Honour did not refer to any "exercise" of leniency, though the non-conviction order then made would clearly be within that notion. The making of such an order is always an exercise of leniency, even when precisely appropriate. See Harrex v Fraser [2011] ACTSC 172 at [40].

389. Second, Mr McElholum asserted in his amended Notice of Appeal that Special Magistrate Lunney should not have place any weight on the 2002 offence, as it was an historical offence that is "no longer on the statute books", is not considered to be an offence in other jurisdictions and was an offence that was trivial in nature and did not involve violence. The offence, minor though it may be, is a criminal offence, just as traffic offences, for example, are criminal offences.

390. An offender's prior criminal record is always a relevant consideration under the Sentencing Act and the prior criminality can result is a loss of leniency for further offences committed. See Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477; Cotter v Corvisy [2008] ACTSC 64, at [61], [63]-[65].

391. A court can consider the offender's criminal history regardless of the age of the previous offence or offences. However, a court will attach less weight to a historical offence than one of recent commission and the length of time since the last offence on the offender's record was committed is also a relevant consideration.

392. That the earlier offence is no longer an offence under the laws of the Australian Capital Territory, and is not an offence in other jurisdictions, is irrelevant. It is the fact of the breach of the law, as it then stood, that is significant. In any event, Mr McElholum did not bring this aspect to the attention of the learned Special Magistrate.

393. There is no substance in this ground of appeal.

394. Mr McElholum also submitted that Special Magistrate Lunney failed to "to give appropriate weight to the [Mr McElholum's] good character for sentencing purposes" [Ground (vii)].

395. Good character is one of the relevant considerations that must be taken into account in sentencing. That someone is found to be of good character does not automatically mean that a sentencer is required to make an order under s 17 of the Crimes (Sentencing) Act. A consideration of all the factors must be undertaken before a determination on whether to make an order under s 17 is appropriate.

396. McHugh J, in Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 at 275 said of good character:

... if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to the circumstances.

397. There was, in fact, no evidence of the character of Mr McElholum. For instance, there were no character references tendered. There was no evidence of good character of the kind referred to in Goundar v Goddard [2010] ACTSC 56; (2010) 240 FLR 176 at 184; [44]- [47].

398. In the absence of evidence, the learned Special Magistrate was left with a very limited criminal history as the only information as to Mr McElholum's character. Indeed, Mr McElholum did not mention his character at all in his brief submissions on sentence. He cannot now complain if material on which he did not rely was not taken into account.

399. In the circumstances, this ground cannot be sustained.

400. Mr McElholum submitted that, in sentencing him, the Court did not have regard to the "stress and hardship" caused by "a drawn out prosecution in relation to a trivial matter" [Ground (viii)].

401. Mr McElholum made reference to the fact that the matter was not finalised until sixteen months after the assault occurred, the fact that there were five court dates that required his personal attendance and the fact that he lost wages and incurred expenses related to travelling from Albury to Canberra on each occasion.

402. Mr McElholum noted in his amended Notice of Appeal that he has been advised by his employer that he will no longer be able to continue to work in some capacities due to the conviction and, further, his security clearance may be subject to a review. That material was not before the learned Special Magistrate.

403. Mr McElholum also mentioned uncertainty around his ability to travel overseas following the conviction. Again, this was not material to which he had drawn the learned Special Magistrate's attention.

404. The issue of Mr McElholum's absences from work were taken into account by the learned Special Magistrate, both when considering whether an order under s 17 of the Sentencing Act would be appropriate and in relation to determining the appropriate penalty. Indeed, the reasons of the learned Special Magistrate indicate that the loss of wages was a reason that a more severe penalty was not imposed.

405. That Mr McElholum will face some consequences as a result of his conviction is not, in and of itself, sufficient reason for an order to be made under s 17 of the Sentencing Act. Section 33(1)(r) provides that particular hardship caused by the imposition of a sentence is a relevant consideration. However, as noted by Burns J in Kelly v Johnston [2012] ACTSC 178 at [16]:

Virtually every person convicted of a criminal offence may suggest that the imposition of a conviction will have some effect upon their lives. The legislature recognised this in the Crimes (Sentencing) Act 2005. Section 33(1)(r) of that Act requires a sentencing court to give consideration to whether the recording of a conviction is likely to cause not just hardship, but particular hardship to the offender.

406. In that case, the Appellant submitted that the imposition of a conviction would make it difficult for him to gain employment in the public service. In the present case, there was no evidence adduced before either the learned Special Magistrate or on appeal to suggest that Mr McElholum would lose his job; rather, the suggestion on appeal was that he would simply be unable to continue performing all of his current duties. The suggestion of a possible security clearance review is not a strong enough indication of hardship that will be suffered.

407. Accordingly, I do not accept Mr McElholum's submissions that the sentence was manifestly excessive. There is no error made out in this ground.

408. It is worth commenting that appellants cannot expect that if they fail to conduct their cases properly before the sentencing court, they can use the appeal to conduct a different case not put before the sentencing court. Any additional material needs to be justified and not assumed to be admissible. A sentencing proceeding is not a rehearsal for an appeal that is conducted on different grounds.

409. None of Mr McElholum's appeal grounds in relation to his sentence have been made out. Thus, no error has been shown in the sentence imposed. It is, of course, not to the point that I may have imposed a different sentence. Unless error is shown, it is not for me to re-sentence Mr McElholum.

410. Taking into consideration the combined effect of the appeal grounds, I do not find that the sentence imposed was manifestly excessive. The learned Special Magistrate imposed a sentence within the appropriate range and made no errors in the sentence he imposed.

411. The appeal against sentence must also be dismissed.

I certify that the preceding four hundred and eleven [411] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

26 June 2015 Replace 'domestic violence' with "unmeritorious" Paragraph: [318]