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1. On 11 August 2023 the appellant, Leigh Poidevin, was found guilty in the ACT Magistrates Court by Special Magistrate Richter of the following charges that arose out of an incident on 5 December 2022: (a) CC2022/11968 – Choke/suffocate/strangle, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (the Crimes Act). (b) CC2023/7045 – Choke/suffocate/strangle, contrary to s 28(2)(a) of the Crimes Act. An alternative charge of common assault was consequently dismissed (CC2022/11969) . (c) CC2022/12544 – Common assault, contrary to s 26 of the Crimes Act, in the alternative to a charge of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act. (d) CC2022/11971 – Common assault, contrary to s 26 of the Crimes Act.

2. The appellant was found not guilty of a related charge of choke/suffocate/strangle contrary to s 28(2)(a) of the Crimes Act (CC2022/11967).

3. The appellant appeals against the findings of guilt on the following grounds: (a) his Honour erred with respect to making findings of guilt where those findings were unreasonable or could not have been supported, having regard to the evidence; and (b) his Honour erred with respect to finding the statutory alternative charge of common assault proved in relation to CC2022/12544 when the prosecutor did not indicate reliance on the alternative count in his opening address; and (c) his Honour erred by providing inadequate reasons for his decision.

4. The appellant seeks orders upholding the appeal and dismissing the charges.

5. For the reasons that follow, each of the appellant’s grounds of appeal have not been established. Accordingly, the appeal must be dismissed.

Background

The prosecution case

6. The prosecution case was that the offending occurred in the context of an argument on 5 December 2022 between the appellant and the complainant, who are father and son. In summary the prosecution alleged that a verbal argument between the appellant and the complainant over a spare key escalated to a physical assault. The prosecution case was that part of the physical altercation was witnessed by the sister of the complainant (and daughter of the appellant), Ms Poidevin. The prosecution alleged that the appellant first grabbed the complainant by the throat in the kitchen (the first choke, CC2022/11967). This is the offence the Special Magistrate dismissed, finding the appellant not guilty. The complainant was then said to have gone to his bedroom, with the appellant following him.

7. The appellant was alleged to have pushed the complainant into the bedroom and when the complainant turned around, the appellant grabbed his throat, pushing him onto the bed (the second choke, CC2022/11968). It was around this time that Ms Poidevin was said to have come into the house to find the altercation occurring. The complainant got up off the bed and tried to walk past the appellant near the doorway; the appellant grabbed the complainant in a headlock around his throat (the third choke, CC2023/7045) and flung him back into the room. The complainant tried to leave again but the appellant grabbed him in a “bear hug”. The complainant freed himself but the appellant grabbed his arms, leaving bruises in the process (the first assault, CC2022/12544). This conduct was the basis of the charge of assault occasioning actual bodily harm that the Special Magistrate determined was not made out, instead finding the appellant guilty of the statutory alternative, common assault.

8. The complainant left the bedroom and while he was attempting to leave, the appellant grabbed his shirt and pulled him into the wall (the second assault, C2022/11971).

Proceedings in the Magistrates Court

9. The hearing took place before the Special Magistrate on 27 July 2023. The appellant was legally represented and did not give evidence. The Special Magistrate reserved his decision and handed down written reasons, yet to be published, on 11 August 2023.

10. In addition to adducing evidence from the complainant and his sister, the prosecution tendered photographs of the complainant said to demonstrate the actual bodily harm (Exhibit 4), a recording of the triple-zero call made by Ms Poidevin (Exhibit 6), two police statements (Exhibits 1 and 2), a Family Violence Evidence in Chief Interview (FVEICI) with the complainant (Exhibit 3) and police body-worn camera footage (Exhibit 7).

The evidence Evidence of the complainant

11. The complainant participated in an FVEIC interview with police on 6 December 2022, which was played at the hearing as part of his evidence.

12. In the FVEICI, the complainant gave the following evidence: (a) The evening before the incident he and his girlfriend went to the appellant’s house at 6:45PM to cook him dinner and that when they arrived the appellant was upset because they had arrived at that time. They cooked him dinner, and ate with him, finishing at about 10:30PM. The complainant was about to go to bed and the appellant said words to the effect that the complainant, his sister and the rest of the family were “cunts” and “dogs”. (b) The next morning, the complainant’s sister attended the house. When she arrived, the complainant and the appellant were having a disagreement. The complainant stated that the appellant told him he was not going to be home that night and the complainant could not stay at the house. The complainant thought that he would take the spare key and place it in a hiding spot so he could use it and went to put the key in his pocket. The appellant told him he could not take the key. The complainant gave evidence that the appellant then grabbed him around the throat and tried to take the key from him, squeezing his left hand. (c) The complainant tried to get past the appellant and went into his bedroom. The appellant followed him and shoved him into the room. They were chest to chest, and the appellant grabbed the complainant around the throat, pushed him onto the bed and stood over him. His sister came inside and saw the appellant with his hands around the complainant’s throat. She then called triple-zero. The complainant gave evidence the appellant put his hands around his throat again and “threw [him] backwards”, demonstrating a headlock position with his arms. (d) He stated the appellant then grabbed his throat for the third time for at least three seconds, demonstrating a hand grabbing his throat. The complainant said he has asthma so he did not want the appellant choking him as he could feel himself “going red”, so he knocked the appellant’s arm out of the way so he could breathe again. The appellant then held his arms around him, in a “bear hug”. (e) The complainant managed to pull himself out of the door and the appellant grabbed his shirt and threw him into the wall. He stated that his sister saw this and heard the thud. He ran into the lounge room to catch his breath and his sister whispered to him, “get out of the house now”. He gave evidence that he was having an asthma attack at this time, but got up and ran out of the house, forgetting his puffer.

13. During the FVEICI, the complainant stated he was “worried” about the appellant’s mental health and the possibility of him injuring himself due to his fragile physical health and issues he has with his hips.

14. After clarification was sought by interviewing police, the complainant provided the following details: (a) that when he was in the bedroom, the appellant was knocking personal items off his shelves; and (b) that when the appellant was leaning over him on the bed, his legs were in between the appellant’s legs and the appellant was leaning close to his face yelling abuse and threats; and (c) that he managed to push the appellant off him at that point and that this was when his sister “came in” and had said “get off him”; and (d) that he was having an asthma attack while he was running out of his bedroom; (e) that he did not give his permission for the appellant to hit or choke him; and (f) that he did not try to fight back and did not throw any punches at the appellant.

15. At the hearing before the Special Magistrate, the complainant gave further evidence that the entire sequence of events lasted about 45 minutes to 1 hour from when his sister called him regarding baby-sitting arrangements to when he ran out the front door. He described hearing his sister walk up the stairs and open the front door when he was on the bed being choked by the appellant. He said he became aware that she was in the doorway watching, as he could hear her voice. He said that the appellant knocking items off shelves in his room occurred just after he was pushed into the room and just before he choked him and pushed him back onto the bed.

16. During cross-examination the complainant agreed that the appellant could be “difficult to deal with”, “unreasonable” and that he was concerned the appellant’s mental health. He agreed that he felt “disrespected” when the appellant did not want him to take the spare key and that he felt he had a right to be able to come back into the house as the appellant had agreed that he could stay there. He agreed that the argument over the key became heated and that he may have raised his voice a little bit but denied that he was angry or frustrated. He agreed that it happened very quickly. When asked if there was some pushing and shoving between himself and the appellant, he stated that “he was pushing and shoving me”, saying “I was defending myself”.

17. The complainant agreed that after he and his sister left the residence, he thought about things overnight and talked about the incident with his sister. He said that he had thought about what would happen if there was a grandchild around when the appellant had an “episode” and agreed he held the view the appellant was going to keep being unreasonable as he had “never been a well person”.

18. The complainant agreed that he had decided he needed to get the appellant some help for his mental health and that the only way he could do that was by making a complaint to police. When asked if he and his sister had got their story straight he said, “Well, I got my story straight. She saw what she saw so –”. When it was suggested to him that he could not keep his story straight with the police, he agreed and said that his brain was a bit “scattered” from “years of mental abuse”. In response to a proposition that he had exaggerated when making his complaint to police, he agreed that he may have exaggerated in respect of one aspect of his evidence in relation to his breathing.

19. When it was suggested to the complainant that he did not want the appellant to be charged, he stated that he did not want the appellant to go to prison and when it was suggested that he did not mean it to go this far he said “I honestly don’t even want to be here today. I wish there was a way that we could flick a switch”.

Evidence of Ms Poidevin

20. Ms Poidevin gave evidence that she attended the appellant’s house at approximately 11:10AM on Monday, 5 December 2022. She was going there as she needed the complainant to look after her youngest child, who was unwell, while she went to work. She arrived at the house and the appellant was in the bathroom getting ready while the complainant was making a protein shake in the kitchen and preparing to leave. She said she and the appellant were discussing Christmas, and then the appellant and complainant began to argue. She asked the complainant to hurry up as they had to leave and went back out to her vehicle, where her child was sleeping.

21. Ms Poidevin described sitting outside in her vehicle for 20 minutes and trying to call and message the complainant because they had to leave. She got tired of waiting and went up the stairs into the house again. As she was going up the stairs she heard yelling and “commotion”. Her evidence was that when she walked into the complainant’s bedroom she saw that the appellant had his hands around the complainant’s throat. They were both standing up at arm’s length apart, the complainant closest to the bedroom window. The appellant had his arm out with his hand touching the complainant’s neck. She asked them to stop and calm down or she would call the police. She then used her phone to call the police. She gave evidence that the complainant then tried to leave the bedroom but the appellant grabbed him and held him in the doorway. She demonstrated a headlock position with her left arm while giving evidence to describe how the appellant was holding the complainant. She saw the complainant try and pull himself out of the doorway and demonstrated that the appellant wrapped his arms around the complainant in a hugging motion. The complainant stepped out of the appellant’s grip. He then hit his shoulder on the hallway wall. The witness was unsure if the complainant stumbled into the wall or if the appellant grabbed him and threw him into the wall, stating she could not remember. The pair then separated, with the appellant going into the kitchen and the complainant going into the lounge room. They were talking about the house key. She mouthed “go” at the complainant and he went out the front door. The appellant moved towards the door and she stood in front of him and said “stop”. She observed that the complainant was struggling to breathe when he was on the couch, with his hand on his forehead.

22. Ms Poidevin said she then left and heard the complainant walk out of the gate. She hung up the phone call with the triple-zero operator around this time.

23. The prosecutor refreshed Ms Poidevin’s memory with the statement she gave to police. After reading the statement, she gave evidence that she was able to recall that as the complainant was leaving the bedroom he pulled himself out of the appellant’s “bear hug” using the door frame and then the appellant grabbed the complainant by the back of his shirt and pulled him into the wall near the bedroom door.

24. The audio recording of the police call she made was played. Ms Poidevin identified that it was her voice on the recording and that she could hear the appellant and complainant in the background. She gave evidence that she was yelling at the complainant to get into the car and that she believed she was also yelling at the appellant to stop and go away. She gave evidence that she mouthed to the complainant to “get out” at around the beginning of the phone call, likely about 20 seconds into the call. She clarified she did not call police until just after the incident in the bedroom.

25. In cross-examination she agreed that the appellant could be “a bit difficult”, “a bit unreasonable”, that she was “pretty worried about his mental health” and that she wanted to “make sure that he’s got the help that he needs”. She accepted that she called the police as soon as she saw the choking incident and that she was on the phone to police when she witnessed the “hook motion” of the appellant’s arm and grabbing the complainant in a “bear hug”. When it was put to her that she did not mention the appellant choking the complainant during the triple-zero call, she explained that it was a very stressful situation and she had other things, such as getting back to work and her child being asleep outside in the car, on her mind.

26. When asked about telling police that there was “some pushing and shoving between the two of them” she gave evidence that this was after the strangulation. She agreed she told the triple-zero operator they were both being “idiots”. When asked if it would have been relevant to tell the triple-zero operator about the choking she said, “I wasn’t thinking at the time” and reiterated that she was “very stressed out”. When it was suggested to her that she had yelled at the complainant because he was actively taking part in the disagreement, she stated that “he was trying to get his stuff out from the house, he still had his wallet and his bag inside the house”. When it was put to her that she had previously said he was leaning on the couch catching his breath, she agreed and said the complainant had wanted to go back in and collect his belongings and she told him to get in the car. She said she had not mentioned this earlier in her evidence because she did not think it was relevant. Ms Poidevin explained that her main goal had been to get the complainant out of the house. When questioned about whether she was inside or outside the house during the phone call, she stated that she was inside the house but walked outside the house towards the end of the phone call. Ms Poidevin said she knew the complainant was a safe distance away when she heard the gate open and she then left.

27. She agreed that the appellant had significant health issues and had required assistance from the complainant after a recent surgery. The surgery had happened before the incident. She also agreed that she talked about the incident with the complainant in the car.

28. Ms Poidevin disagreed with the suggestion that she did not see the appellant choking the complainant, responding “it did happen”. She disagreed that the only contact she saw was a push and shove between the appellant and complainant. She agreed that the appellant needed help for his mental health. When it was suggested that making a complaint to the police would be one way for the appellant to receive mental health assistance, she replied: “If that was the case we would have done this many years ago. Probably, yeah, many years ago”.

The Magistrate’s decision

29. The Special Magistrate handed down his decision two weeks after the hearing. The reasons detail some of the background to the incident as well as record the “General Directions” the Special Magistrate gave to himself. No complaint is made about that part of the reasons.

30. In relation to CC2022/11967 (the first choke), the Special Magistrate found that he was not satisfied the prosecution had discharged their burden to exclude self-defence and accordingly found the appellant not guilty. The Special Magistrate went on to consider the other charges, finding the appellant guilty in relation to CC2022/11968 (the second choke), CC2023/7045 (the third choke), CC2022/11971 (the second assault). Having determined that the prosecution had not established the actual bodily harm element of CC2022/12544 (the first assault), the Special Magistrate found that the statutory alternative, common assault, had been made out and accordingly found the appellant guilty of the alternative offence.

31. In the context of summarising the complainant’s evidence the Special Magistrate recorded: The victim’s evidence was clear and consistent, and I have no difficulty accepting the majority of the evidence he gave either by way of the FVEIC interview or in his oral evidence before me. The victim’s evidence is corroborated by the bruising which can be seen on his arms and more importantly, for most of the incidents it is corroborated by the evidence of his sister who was also present.

32. The Special Magistrate summarised the evidence of Ms Poidevin. The reasons record the Special Magistrate’s determination in relation to each charge.

33. In relation to the first assault (CC2022/12544), the Special Magistrate found: Both the victim and Ms Poidevin gave convincing evidence of this incident. It is further corroborated by the photographs which show some bruising to the victim’s upper arms.

34. In relation to the second choke charge (CC2022/11968), the Special Magistrate found: This incident is witness by Ms Lepodevin [sic], I have no difficulty in finding that this count is proven. I find the defendant guilty.

35. In relation to the third choke charge (CC2023/7045), the Special Magistrate observed, before finding the appellant guilty: Both the victim and Ms Poidevin gave an account of the defendant using his elbow around the throat or neck of the victim. Both have demonstrated this action – the victim during the FVEIC interview, and Ms Poidevin during her oral evidence.

36. In conclusion the Special Magistrate reasoned that the conduct relied upon for the second assault (CC2022/11971) was “consistent to both prosecution witnesses” and found the appellant guilty.

Determination – standard of review

37. This appeal is brought pursuant to ss 207 and 208 of Division 3.10.22 of the Magistrates Court Act 1930 (ACT) (the MCA), which confers jurisdiction on this Court to hear and determine appeals from a person who has been convicted of a summary offence in the Magistrates Court.

38. An appeal under ss 207 and 208 of the MCA is conducted by way of rehearing: Alexander v Bakes [2023] ACTCA 49 (Alexander) at [17]. On a rehearing, the Court “must have regard to the evidence given in the proceeding out of which the appeal arose and has power to draw inferences of fact”: s 214(2) of the MCA. This task requires a “real review” of the evidence and of the reasons for judgment “while respecting any advantage that the primary judge enjoyed”: Alexander at [13], citing Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551 and Lee v Lee [2019] HCA 28; 266 CLR 129 at 148-149; [55]-[56].

39. An appellant in an appeal by way of rehearing may succeed only by demonstrating material error in the decision below, whether legal, factual or discretionary: Alexander at [18].

40. The appellant relies on three grounds of appeal. Two of the grounds, (b) and (c), allege specific error. The third ground asserts that the guilty verdicts entered by the Special Magistrate were “unreasonable”. A ground framed in this way asserts a “species of error” which may, if established, justify setting aside a verdict in an appeal governed by s 214, but “an appellant ‘does not need to make out a ground pitched at that level’ in order to succeed”: Alexander at [17] approving the approach endorsed by Kennett J in McFarlane v Van Eyle [2022] ACTCA 68 at [97]-[98].

41. I proceed on the basis with respect to ground (a) that “the appellant challenges the Magistrate’s ultimate factual finding” (Alexander at [23]) and accordingly apply “the principles relevant to properly assessing the evidence discussed in cases considering whether a verdict is unreasonable” on a rehearing: Alexander at [25].

42. When considering whether a verdict is unreasonable, the Court must ask itself “whether it thinks that upon the whole of the evidence it was open to [the tribunal of fact] to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen [1994] HCA 63; 181 CLR 487 at 492-495; and see Dansie v The Queen [2022] HCA 25; 274 CLR 651 (Dansie) at 657 [7]-[8]; Lang v The Queen [2023] HCA 29; 97 ALJR 758 at 799 [251]. As McCallum CJ explained in Garay v The Queen (No 3) [2023] ACTCA 2 (Garay) at [14]-[15]: 14. The question for the appellate court is one of fact. It is not to be confused with the question of law whether, taken at its highest, the evidence can support the verdict. As explained in M, it is a question of fact “which the court must decide by making its own independent assessment of the evidence”: at 492 [6]. In Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113], the question was framed as being whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, “which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.” (Emphasis in original.) However, the High Court has since clarified that the question so framed is not to be understood to qualify the enduring principles stated in M: see Pell v The Queen [2020] HCA 12; 268 CLR 123 at [43]–[45]; Dansie v The Queen [2022] HCA 25; 96 ALJR 728 at [13]. To say that a jury “must have had a doubt” is another way of saying that it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence: Pell at [45]. 15. Finally, it is well settled that, in determining that question, account must be taken of the advantage which a jury has in seeing and hearing the evidence: M at 494 [8]. In Filippou, the High Court treated that principle as being of equal application in an appeal from a finding of guilt by a judge: at [12] (French CJ, Bell, Keane and Nettle JJ); [83] (Gageler J). …

43. The Court of Appeal in Warne v The King [2023] ACTCA 1; 374 FLR 311 put it this way at [30]: …[S]uccess for the appellant on this ground involves a subjective event (the Court has a reasonable doubt) from which a normative proposition (the jury should have had the same doubt) must be established (cf R v Bragias [2016] NSWCCA 219, [5], [8] (McCallum J)). Proceeding from one to the other, in the light of M, involves excluding the advantage enjoyed by the jury as an explanation for it not having had the doubt entertained by the Court. That will usually be achieved if (as it was put in M) the evidence as it appears from the record “contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force”.

44. Bearing all of those principles in mind, I turn to consider the grounds of appeal.

Grounds of appeal

Ground (a): His Honour erred with respect to making findings of guilt where those findings were unreasonable or could not have been supported, having regard to the evidence

45. The appellant submits that the verdicts were unreasonable for two reasons. First, the verdicts relied substantially on the evidence of the complainant, which suffered from “deficiencies” such that the Special Magistrate, acting rationally, ought to have entertained a reasonable doubt. Second, the evidence of Ms Poidevin did not in “many respects” corroborate the version given by the complainant.

46. I deal first with those matters the appellant relies upon to demonstrate the deficiencies in the evidence of the complainant. Before doing so , I observe generally that when the whole of the evidence is considered, many of the matters raised in support of this aspect of the ground of appeal, do not take on the significance the appellant asserts. In my view, having reviewed the entirety of the evidence, none of the matters raised, either individually or collectively, demonstrate that it was not open to the Special Magistrate to accept the evidence of the complainant. Indeed in my view the Special Magistrate was correct to do so.

47. First, the appellant contends that the complainant’s evidence when he described that he was unable to breathe or speak while he was being choked, and that he was “trying to yell”, was inconsistent with the shouting and yelling he can be heard to engage in the background of the triple-zero call. Two observations can be made that result in the asserted inconsistency falling away. The first is that Ms Poidevin said she mouthed at the complainant to leave about twenty seconds into the triple-zero call. The complainant said he experienced an asthma attack before she did that. The complainant cannot be heard yelling out before twenty seconds of the triple-zero call has elapsed. Further, Ms Poidevin said she called police after she observed the appellant choke the complainant. The interaction between them continued as she remained on the phone with police. The complainant shouting at some point during the call is consistent with the choking having come to an end at some point. The other observation is that the complainant readily accepted that he may have exaggerated when he described the effect of the incident on his breathing, by inference an exaggeration that extended to his ability to yell or shout.

48. Second, the appellant asserts that the complainant revealing a motive to make an allegation against the appellant and conceding that he had spoken to Ms Poidevin about the incident, significantly undermined his credibility and reliability. The Special Magistrate, properly in my view, rejected the suggestion that the complainant was motivated by ill-will toward the appellant and noted that the complainant indicated that he would prefer not to be participating in the proceedings. These were findings clearly open on the evidence. It was not directly suggested to the complainant that his complaint to police was false. It was suggested to him in cross-examination that he decided to make the complaint to the police to get the appellant “some mental health help”. The complainant responded to this suggestion with “yes and sad to say, I’m still going to try”. The identification of a motivation to see the appellant receive mental health support was in combination with the complainant maintaining his version of events. It was not suggested to him that the complaint was false in order to give effect to the motivation he frankly accepted was involved in the decision to complain to police on this occasion.

49. An acceptance of the motivation was not an acceptance that the complaint was fabricated or the result of collusion with Ms Poidevin. The complainant’s ready acceptance of both matters, in my view, was inconsistent with the allegations arising as a result of a plan to embellish or invent a version of events in an effort to get a mental health intervention for the appellant. As I observe below in relation to Ms Poidevin, it would be unusual for family members involved in this kind of incident not to discuss it. The complainant rejected any suggestion that he and his sister had worked together to come up with the allegations saying that he got his own story straight and that Ms Poidevin “saw what she saw”.

50. Third, the appellant points to concessions made by the complainant that he had exaggerated and forgotten aspects of his evidence. The context of the concessions is critical to understanding their overall significance.

51. The complainant’s concession about exaggerating was made in relation to a specific aspect of his account and for that reason I extract the entirety of the exchange with defence counsel: Counsel: I’ll suggest to you that when you were making your complaint to police, everything got a bit exaggerated, didn’t it? Complainant: No, no. There was not that much exaggeration. I will admit there would’ve been maybe a little bit of exaggeration on the part where my breathing might’ve been a bit difficult because I am unfit so maybe I wasn’t breathing that badly but – yes, I was still struggling to breathe. My circulation was cut and – yes, I was feeling funny, I was feeling dizzy, light-headed.

52. As the extract demonstrates, the concession was limited. The preparedness of the complainant to volunteer that the state of his physical fitness may have had some bearing on his reaction to the physical altercation and the consequent state of his breathing was to his credit, and not a matter that necessarily founded a general concern about whether his evidence, in its entirety, had been exaggerated.

53. The appellant cites a second time in the complainant’s evidence when he responded “okay” when it was suggested to him that he had forgotten parts of his evidence because he had exaggerated the entire incident. A reading of that exchange does not lend itself unequivocally to the interpretation the appellant seeks. The answer “okay”, and further “okay, understood”, was intended to convey to defence counsel that he understood the proposition being put to him. The proposition was not clarified or pursued. Accordingly, it is not at all clear what the complainant’s response was an acceptance or endorsement of the suggestion he had exaggerated the entire incident.

54. The complainant also conceded that there may have been parts of the incident that he forgot when he was interviewed by police. The appellant sought to rely on that concession as significantly undermining the complainant’s reliability. I do not agree. As the respondent highlights, the FVEICI commences with the complainant describing in narrative form the incident. That narrative accounts for the charges that the Special Magistrate determined. As is commonly the case the interviewing officer asks questions in an effort to seek and confirm detail and a chronology of events. The questions and answers move across the incident, including particular allegations and after around 26 minutes the officer prompts the complainant about a previous description he had given of being flung into the wall. It was open to the Special Magistrate to consider this to be insignificant in the scheme of an otherwise consistent description of events, corroborated to an extent by the evidence of Ms Poidevin and the injuries on his arms.

55. Fourth, the appellant points to an inconsistency in the complainant’s evidence about leaving the house and then returning to collect his asthma puffer. It is not entirely clear what the appellant seeks to make of this or what the inconsistency is said to be. I could find no reference in the complainant’s evidence to him returning to the house. He referred to realising he had left his asthma puffer inside the house, but there is no evidence that he went back inside to retrieve it. Indeed, the prosecutor clarified as much during the course of closing submissions. There is no inconsistency in relation to this part of the complainant’s evidence before the Special Magistrate. Ms Poidevin said in evidence after the incident the complainant had wanted to return to the house and collect some of his things, saying “he still had his wallet and his bag inside the house”. The complainant does not mention that in his evidence. The complainant did say in re-examination that he needed to return to the residence to collect his belongings after the incident. Any inconsistency as to whether the complainant did or did not want to return to the house immediately after the incident was of no real moment.

56. Fifth, the appellant asserts an inconsistency in the complainant’s evidence about occasions when he said he touched the appellant during the incident. The appellant complains that evidence given by the complainant where he asserted he had only touched the appellant in self-defence was undermined by evidence he gave later where he accepted there had been “pushing and shoving” between them. The difficulty with making anything of this asserted inconsistency is that the proposition was put and accepted, generally in circumstances where the complainant had already explained that he had pushed the appellant off him. The appellant relies on this exchange: Counsel: I’ll suggest that what actually happened was there was a scuffle over the key in the kitchen? Complainant: Okay Counsel: There was a bit of push and shove between the two of you? Complainant: Yes Counsel: It was all over in a few minutes? Complainant: M’mm

57. The complainant had earlier given evidence that when the appellant was on top of him, the complainant pushed him off saying: She saw us scuffling from the point when he was on top of me and when he was on top of me, I pushed him off me, yes. So that would have been the shoving and pushing part and then when I went around him to get out he grabbed me and tossed me over to the edge of the bed. So yes, that would have been the shoving and pushing that she saw.

58. This latter exchange when considered in light of the earlier evidence does not represent an acceptance by the complainant that any “push and shove” between them was not done in self-defence. Assessing the evidence of the complainant in its entirety does not reveal the inconsistency the appellant asserts.

59. The appellant challenges the finding that Ms Poidevin’s evidence corroborated the complainant’s evidence in support of the contention that the verdicts were unreasonable. The appellant relies on aspects of Ms Poidevin’s evidence said to be inconsistent with the complainant’s evidence and aspects said to reflect poorly on her credibility in support of that contention.

60. The first inconsistency relates to the choke charge said to have occurred in the bedroom (CC2023/11968). The complainant gave evidence that the appellant choked him first when they were standing before he was pushed back onto the bed with his head pinned facing toward the ceiling. He said while this was happening, he heard Ms Poidevin “walking up the stairs and opening the front door” and she came to stand in the doorway.

61. Ms Poidevin did not describe the appellant choking the complainant on the bed. She did describe the choking action. She described returning to the house after sitting with her son in the car for 20 minutes, and that she could “hear the yelling and the commotion. So I walked inside and into [the complainant’s] bedroom and that’s where I saw dad and [the complainant] and dad had his hands around [the complainant’s] throat”. Ms Poidevin described them both as standing at “arm’s length” from each other. She then described calling police saying, “it was a very stressful situation”, later adding that for the time she was inside the house observing the incident, her two-year-old son remained outside in the car and “she wasn’t thinking at the time”.

62. While the evidence differed as to the position of the complainant when Ms Poidevin entered the room, there was consistency as to the choking action occurring as she entered. Further, the complainant gave evidence that the choking in the bedroom began while he was standing, before it continued, and he was pushed back onto the bed. The evidence that the choking began while he was standing is consistent with what Ms Poidevin described observing. Any inconsistency as between the descriptions was explained by the confronting nature of the situation for Ms Poidevin, her focus on contacting police and her concern that her small son remained in the car while she was inside attempting to manage the conflict. Any inconsistency could also have been reasonably explained by Ms Poidevin entering the room earlier in the incident than the complainant realised when the choking action first began and the complainant and appellant were still standing. The complainant said “all I heard was her voice. My head was pinned to look at the ceiling. I couldn’t move my head much” and later “I could pinpoint where she was standing from hearing her”.

63. Ms Poidevin’s evidence about the impact upon her, in the moment, of those circumstances, in my view feeds into the next point the appellant makes about her reliability.

64. The second inconsistency is said to be the description Ms Poidevin gave to the triple-zero operator, including “they’re carrying on like fucking idiots” and “they’re pushing each other around and it’s getting ridiculous”. The appellant asserts this to be inconsistent with the choking she described observing and raising a “different factual scenario” that should have led the Special Magistrate to entertain doubt as to the reliability of her evidence.

65. I do not consider the description to raise a competing factual scenario when the entirety of Ms Poidevin’s evidence is considered. Ms Poidevin clarified that the reference to “pushing and shoving” in the triple-zero call occurred after the “strangulation” while she was on the phone. She agreed she did not include in the triple-zero call any reference to the choking, again invoking the stress of the situation and her concern that her son was outside in the car, saying, “if he had have woken up crying, where was I?” Ms Poidevin was adamant that she witnessed the choke, while readily accepting that she did not specifically refer to it in the triple-zero call. In addition to her son being in the car, Ms Poidevin explained that she needed to get back to work and that she “was not expecting to walk back in and find two fully grown men behaving that way”. The explanation provided for the lack of detail in the triple-zero call makes sense in the context of the competing concerns operating on the witness’ mind at the time of contacting police, and that the conflict is continuing right in front of her as she seeks police assistance.

66. The Special Magistrate was entitled to take the entire circumstances into account, including the explanations provided by the witness when weighing the evidence and assessing the significance of any differences as to the accounts. The aspects of Ms Poidevin’s evidence raised by the appellant did not demonstrate her evidence to be inherently implausible or unlikely. The matters relied upon did not demonstrate that the Special Magistrate ought to have rejected her evidence where it corroborated the version given by the complainant. While the Special Magistrate found that the injury relied upon for the actual bodily harm charge did not meet the threshold of bodily harm, the injury was nonetheless corroborative of some contact between the complainant and the appellant, consistent with the evidence Ms Poidevin gave about what she observed.

67. As I apprehend it, the following evidence is relied upon by the appellant as adversely affecting the credibility of Ms Poidevin. In my view, they can readily be viewed as insignificant in that regard, both individually and collectively.

68. First, that she said she “mouthed” to the complainant to get out of the house. The appellant contends this evidence is “completely inconsistent” with the triple-zero call where she could be heard to shout and yell at the complainant. I do not agree. Those two pieces of evidence are not mutually exclusive. Ms Poidevin said this happened at “around the beginning of the phone call”. It is entirely possible that Ms Poidevin was, on the one hand, yelling at the complainant during the call and, on the other, “mouthing” at him, at the beginning of the phone call, to get out of the house.

69. Second, that there was a change in her demeanour after the triple-zero call was played in cross-examination. This is not a matter an appellate court can properly assess from the record with the same advantage of the Special Magistrate. The transcript of the witness’ evidence after the playing of the triple-zero call does not reveal any discernible difference in her engagement in the proceedings. There was no suggestion put to her that her demeanour changed after hearing the call. A change in the demeanour of Ms Poidevin was a submission made by defence counsel, and the Special Magistrate was well placed to make an assessment. In forming the view that he could rely on her evidence, it was open to the Special Magistrate to consider any change in demeanour, if he observed as much, to be of little consequence.

70. The third aspect said to reflect poorly on Ms Poidevin’s credibility relies on her concession that she had discussed the incident with her brother, the complainant. Ms Poidevin rejected the suggestion that the incident provided an opportunity for the siblings to “put a story together”. I again observe that it would be unusual for family members involved in this kind of incident not to have some discussion about it. This in and of itself does not demonstrate collusion or influence. Indeed, the discrepancy in relation to the complainant being on the bed for part of the choking conduct undermines the strength of any submission suggesting the witnesses colluded to deliberately mislead the Court. Further, initially in evidence Ms Poidevin could not precisely recall the detail of the second assault (CC2022/11971)

71. Of course I bear in mind the limitations that an appellate court has assessing the case on the record. I do not have the advantage of the Special Magistrate, being immersed as he was in the environment of the hearing, seeing and hearing the witnesses. In my view, it was open to the Special Magistrate to accept the evidence of the complainant and Ms Poidevin. I am not satisfied that, in either case, their evidence was inadequate or deficient or lacked probative force to such an extent that, acting rationally, it was unreasonable for him to rely upon it to find the appellant guilty. Indeed having performed a ‘real review’ of the evidence I am not left with a doubt, nor do I consider that the Special Magistrate ought to have experienced a doubt. For the reasons outlined above none of the matters relied on by the appellant cast doubt on the correctness of the findings.

72. This ground of appeal has not been established.

Ground (b): His Honour erred with respect to finding the statutory alternative charge of common assault proved in relation to CC2022/12544 when the prosecutor did not indicate reliance on the alternative count in his opening address

73. The Special Magistrate found the appellant guilty of common assault in the alternative to the offence of assault occasioning actual bodily harm (CC2022/12544), on the basis that the actual bodily harm element had not been established on the prosecution case.

74. The appellant submits that the prosecution was required to indicate in its opening whether it relied upon any statutory or common law alternatives to the offence charged. No authorities were relied upon for this proposition. It is accurate to note that the prosecutor, in his opening address, did not place any reliance on the statutory alternative. The appellant submitted that it is “prudent practise” for the trier of fact to raise with the parties whether an alternative verdict is available at least prior to closing addresses in order to avoid possible unfairness to a defendant, relying on James v The Queen [2014] HCA 6; 253 CLR 475 (James) at 489 [34] (footnotes omitted): Consideration of fairness to the accused led the New South Wales Court of Criminal Appeal to hold that it was unwise for the trial judge to direct on an alternative verdict in a case in which the parties had not raised that matter. The Queensland Court of Appeal has similarly held that fairness may require that the accused's chances of acquittal are not jeopardised by leaving an alternative verdict. These remarks were approved by Kiefel J in R v Keenan with the concurrence of Hayne, Heydon and Crennan JJ. Keenan holds that the duty to ensure a fair trial does not require that a lesser charge is left in every case: the test is what justice to the accused requires.

75. The appellant submitted that a lesser alternative charge need not be to be left in every case, referring to the “what justice to the accused requires” test in James. So much may be accepted. I do not agree that this was a case where justice to the accused required the alternative verdict to be put aside by the Special Magistrate because it was not identified by the prosecutor when he opened the case.

76. The reasons of the Special Magistrate erroneously refer to s 49 of the Crimes Act as the source of the statutory alternative. The charges before the Special Magistrate were all aggravated forms of the offence by virtue of their status as having been committed in a family violence context. The Special Magistrate was aware of the circumstance of aggravation and indeed expressed his finding of guilt consistent with that, stating “guilty of the alternative offence of common assault which is aggravated by occurring in circumstances of family violence”. There was no complaint about the s 49 reference by the appellant, consistent with it being of no material consequence.

77. The statutory alternative to the charge of assault occasioning actual bodily harm (aggravated offence) is found at s 48D of the Crimes Act (specifically Item 6 of Table 48D). Section 48D provides: 48D Alternative verdicts for aggravated offences—offences involving family violence (1) This section applies if, in a prosecution for an aggravated offence mentioned in column 2 of an item in table 48D, the trier of fact— (a) is not satisfied that the defendant committed the aggravated offence; but (b) is satisfied beyond reasonable doubt that the defendant committed an offence mentioned in column 3 of the item (the alternative offence). (2) The trier of fact may find the defendant guilty of the alternative offence but only if the defendant has been given procedural fairness in relation to that finding of guilt.

78. The appellant argued that the alternative is only available when reliance upon it is openly stated at the outset of the prosecution case. There were no authorities cited in support of this submission.

79. A real difficulty for the appellant in establishing this ground of appeal is that in the proceedings before the Special Magistrate, it was the appellant’s counsel in closing submissions who specifically invited the Special Magistrate to turn to the alternative verdict if he was not satisfied as to the extent of the injury relied upon. Counsel for the appellant submitted: If your Honour does find that that conduct did occur, it would be my submission it cannot amount to actual bodily harm in the circumstances in that in no medical evidence presented, nothing to show how long the bruises lasted for, nothing to show any impact. And your Honour, if your Honour is satisfied that the conduct did occur, must find any alternative to that particular charge.

80. The appellant maintained that the submission identifying the availability of the alternative verdict was an error (though no ground alleging incompetence of counsel was pleaded) that in turn, led the Special Magistrate into error. I disagree. The submission satisfied the requirement in s 48D(2) that the appellant be afforded procedural fairness. That the prosecutor did not specifically raise the availability of the alternative verdict is of no moment in the circumstances.

81. In R v Neish (No 2) [2013] ACTSC 24 Refshauge J determined after a comprehensive review of the relevant authorities, that an alternative verdict could be left to the jury even where the Crown had not opened their case on the alternative offence, at [26]: Returning to the issues raised by both Smart AJ and R v Cameron (1983) 8 A Crim R 466 about the Crown’s opening, I note that, despite what Smart AJ said (at 422; [97]), referred to above (at [22]), his Honour, in summary of the authorities, said (at 425; [110]): If the Crown wishes to the jury to consider the alternative placed in the event of them finding the accused not guilty of the principle offence the Crown must open the alternative offence to the jury. I have been unable to find, in the time available to me, where, on the authorities, the “should” in [97], has become a “must” in that summary.

82. Aside from the assertion of error the appellant did not point to any prejudice that arose from the late raising (by his own counsel) of the availability of the alternative count. Unlike the appellant, I make no criticism of his representative. Indeed in my view it was quite proper for counsel to identify a legitimate consideration for the Special Magistrate in terms of the extent of the injury and the prospect it raised of the appellant being found guilty of the lesser offence: see Chand v R [2011] NSWCCA 53 at [61].

83. The invitation to consider the alternative verdict was made in circumstances where the appellant denied the occurrence of the assault occasioning actual bodily harm (the elements of which clearly encompassed the alternative count). In this sense, the appellant had entirely confronted the prosecution case. The procedural fairness demanded by s 48D of the Crimes Act was given full effect. In the circumstances of this matter, it was entirely appropriate for the Special Magistrate to consider the alternative verdict.

84. This ground of appeal has not been established.

Ground (c): His Honour erred by providing inadequate reasons for his decision

85. At the heart of this ground is a complaint that the appellant was left wondering how the Special Magistrate reached the findings of guilt.

86. The appellant contends that the reasons provided by the Special Magistrate in this instance fell into the category of “inadequate”, as articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18: The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: – (a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or (b) justice is not seen to have been done.

87. The appellant identified three specific complaints. First, that the reasons required speculation by the parties as to the pathway for the conclusions as to guilt. Second, that they demonstrated a lack of engagement with the evidence and finally, that they failed to articulate findings as to credibility and reliability.

88. It has long been recognised that the pressures that attend to the operation of a Magistrates Court must be given due consideration by appellate courts: see Acuthan v Coates (1986) 6 NSWLR 472; 24 A Crim R 304 at 479 and Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWC 343; 67 NSWLR 402 (Illawarra Cashmart).

89. In Illawarra Cashmart Johnson J observed at 407 [15] (citations omitted): …[I]t is appropriate to bear in mind that his Honour’s reasons constitute an unedited and unpunctuated record of ex tempore remarks in a busy Magistrate’s Court. Such a judgment should not be picked over and appropriate allowance should be given to the pressures under which magistrates are placed by the volume of cases coming before them.

90. In Greenwood v Barlee [2018] ACTSC 46 at [4], Mossop J stated: The reasons given by the magistrate need to be understood having regard to the realities of the work of that court and the pressures under which magistrates operate. Regard must be had to the substance of the reasons: Acuthan v Coates (1986) 6 NSWLR 472 at 479; DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at [15].

91. In Wolter v Broomhall [2023] ACTSC 331 (Wolter) Baker J had cause to consider a complaint about inadequate reasons from a decision of the Magistrates Court and at [63]-[64] helpfully observed: 63. […]An appeal court’s evaluation of the adequacy of a Magistrate’s reasons must also take account of the “pressures under which Magistrates are placed by the volume of cases coming before them” (Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at [15]), or what Hamill J has more succinctly described as the “sometimes absurd workload of the magistracy”: Director of Public Prosecutions (NSW) v Peckham [2022] NSWSC 713 at [23]. For this reason, an appeal court must be concerned with the substance, rather than the form, of the Magistrate’s reasons: Heyward v Bishop [2015] ACTCA 58; 73 MVR 426 at [26], citing Acuthan v Coates (1986) 6 NSWLR 472 at 479. 64. Nonetheless, in all cases, the reasons must be sufficient to “enable the losing party to understand properly the grounds upon which the case was lost”: Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; 60 NSWLR 127at 136 [59] (per Ipp JA, Bryson JA and Stein AJA agreeing) citing Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 at 666–667. The reasons must also be sufficient to enable an appellate court to “discharge its statutory duty on [any] appeal from the decision”: DL v The Queen [2018] HCA 26; 266 CLR 1 at [32].

92. In AK v Western Australia [2008] HCA 8; 232 CLR 438 (AK), Heydon J stated at 468; [85] (footnotes omitted): …Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.

93. In DL v The Queen [2018] HCA 26; 266 CLR 1 (DL) at 12; [32] (approving the above passage from AK at 13; [33]) the High Court held that what constitutes “adequate” reasons is informed by the nature of the jurisdiction which the Court is exercising and the particular matter that is the subject of the decision.

94. In O’Connell v McMennemin [2014] ACTSC 112 (O’Connell) at [70]-[80] Refshauge J determined that the obligation on a magistrate, as part of the exercise of their judicial function, is to adequately state the findings of fact and reasons for decision, to enable a proper understanding of the basis upon which the findings of guilt were made. His Honour cites a number of authorities at [76]: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-280; T v Medical Board of South Australia (1992) 58 SASR 382 at 408; Fleming v The Queen (1998) 197 CLR 250 at 260; [22]; Papps v Police (2000) 77 SASR 210 at 215; [23]; Gannon v Police (2005) 93 SASR 289 at 294; [22], before concluding at [77]: As many of these decisions make clear, the reasons, especially in a summary jurisdiction do not need to be elaborate or lengthy, though they must articulate the essential ground or grounds on which the decision rests. A detailed explanation may not be required, but some explanation is required. Thus, whether there is an error of law will depend on the circumstances of each case.

95. It seems to me that the line is blurred in some of the appellant’s submissions as between what McWilliam J identified in Bourke v Styche [2024] ACTSC 62 at [75] as “inadequate reasons” and “inadequate reasoning”. Her Honour, while recognising that the line between the two may be faint, nonetheless cautioned at [75]: Second, when assessing the quality of the reasoning and whether it meets a minimum acceptable level, it is important not to conflate inadequate reasons with inadequate reasoning (which is an error more in the nature of the trial judge’s reasoning not supporting the verdict returned). Inadequate reasons deal with where it is not possible to discern how the decision-maker rationally arrived at the determinative conclusions. Inadequate reasoning is where the reasoning is exposed, but flawed: see the discussion in JGS at [205]- [209] and Garay at [142]. Admittedly, the line between the two may be faint (an observation also made in cases such as R v Sexton [2018] SASCFC 28 at [178]).

96. For example, the appellant complains that the reasons did not express a conclusion as to the credibility or acceptance of the complainant’s evidence. In support of that contention, the appellant identified that part of the reasons where the Special Magistrate said, “I have no difficulty accepting the majority of the evidence he gave”; a finding that begins with “the victim’s evidence was clear and consistent”. The complaint about this is that complainant’s evidence was not clear and consistent. This seems to me to be an argument properly directed at inadequate reasoning and not inadequate reasons.

97. In any event, I have approached this ground on the basis of the three matters referred to above at [87]. As will become clear, I do not agree that the reasons were inadequate.

98. In Garay, McCallum CJ (with whom Collier J agreed) stated at [138]: It will be a rare case in which the adequacy of the reasons can be determined by reference to the structure of the judgment alone. The provision is concerned not with the quality of the writing but with the quality of the reasoning, which must necessarily be informed by the issues in the case. The statute does not impose a requirement that the judgment be reasoned beautifully; only that the reasoning process be exposed. It is trite that, in determining whether that has occurred, the appellate court must read the judgment fairly, as a whole.

99. The appellant sought to distinguish the reasons of the Special Magistrate handed down two weeks after the hearing from reasons given ex tempore immediately at the conclusion of a contested hearing, the suggestion being that an assessment of ex tempore reasons might reasonably make allowances that ought not be made for reasons provided after some time for consideration. In my view, in the circumstances of this matter it is a distinction of no real moment. There are two things to be observed.

100. First, whether ex tempore reasons or reasons delivered after time for consideration, the question remains whether the reasons achieved the minimum acceptable standard, articulating “the essential ground or grounds on which the decision rests”: O’Connell at [77]. Second, the pressures of the workload of the Magistrates Court attend to both ex tempore decisions and decisions where reasons are reserved. While the former might relieve the instant pressure of the matter at hand, the latter approach only adds to the ongoing pressures of the relentless workload. Of course, I accept that an ex tempore decision ought to be scrutinised with some degree of latitude (see Mammoliti v Callaghan [2022] ACTSC 259 at [23], citing Buxton v R [2017] NSWCCA 169 at [53]) and may be more readily forgiven for infelicitous language.

101. The reasons produced by the Special Magistrate were not expansive. They did not need to be. While they could be properly described as revealing an economical approach to determining the outcome, in my view they adequately addressed the critical points of contest and revealed reasoning behind the ultimate determination.

102. The circumstances of the case before the Special Magistrate were not complex. The hearing extended over a day. The outcome required the resolution of a straightforward factual dispute. The appellant did not give evidence. The appellant did participate in an interview with police that the Special Magistrate treated as having raised the question of self-defence. At least in relation to one of the charges, the Special Magistrate ruled in the appellant’s favour on that basis. Unsurprisingly there is no complaint about his Honour’s treatment of that issue. The resolution of the disputes on the evidence did not depend on complex questions of law or of fact, or a synthesis of large volumes of evidence. The limited nature of the issues in dispute, the extent of the evidence and the absence of complicated questions of law did not demand expansive reasons.

103. It is undoubtedly so that the credibility of the witnesses was part of the assessment to be made in the circumstances of the case. In Garay, McCallum CJ observed at [30]-[31]: 30. …An assessment of credibility is part of the process of deciding the facts. Such a conclusion should be explained but it is not susceptible of the same kind of intermediate reasoning as a finding of fact. It is not a critical analysis of the statements of another. It is an expression of one’s own experience of seeing and hearing the witnesses give evidence. As a conclusion informed by the advantages of presiding over a trial, it is one ordinarily to be given some deference by an appellate court. 31. Whatever differences exist between trial by jury and trial by judge alone, the advantage of being immersed in the atmosphere of the trial is one thing they undoubtedly have in common; an advantage not shared by the appellate court. The assessment of credibility involves more than a lawyerly analysis of the words on the page of a transcript. The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness.

104. The specific complaint made about the absence of a direct finding on the credibility of Ms Poidevin does not withstand scrutiny when the reasons are read in their entirety. As I have already observed the Special Magistrate at the outset identified that he accepted the complainant’s version of events. Ms Poidevin was one source of corroboration, albeit an important source. It is obvious from the reasons of the Special Magistrate that he was persuaded to the requisite standard where the evidence of each witness corroborated the other. There are observations made by the Special Magistrate that demonstrate that he considered Ms Poidevin to be a witness of truth, including references to her giving “convincing” evidence and to “accepting” her evidence. While the reasons are set out with the use of headings, and explicit references to findings of fact and credit might have been expected under particular headings, when read as a whole those findings can nonetheless be found or inferred.

105. The Special Magistrate’s experience of seeing and hearing the witnesses led him to conclude that he could rely on their evidence and so find facts consistent with that evidence. It is clear in relying on their evidence to prove the facts that he found, he implicitly found them to be credible witnesses. This is consistent with the approach described above in the extract from Garay. Further the Special Magistrate explicitly rejected the most significant aspect of the appellant’s challenge to their credibility when he determined that neither the complainant nor his sister wished the appellant “harm” and both were “present at court because they were required to be rather than it being their choice”.

106. The reasons of the Special Magistrate read “fairly, as a whole” (Garay at [138]) leave no doubt about how it is he came to be satisfied that the prosecution had established the offences beyond reasonable doubt. There is no doubt that the version of events given by the complainant, corroborated to an extent by his sister and the injuries, established the elements of the offences as charged. There was no dispute as to what the elements of the offences were. The prosecutor, as is the common practice, provided an aide memoire prior to the commencement of the hearing outlining the elements of the offences. Defence counsel took no issue with the identification of the elements of each offence. The aide memoire features as part of the appeal book and a review of it reveals the elements of the offences to have been accurately identified.

107. The reasons of the Special Magistrate make findings critical to the establishment of the prosecution case beyond reasonable doubt and the reasons in support, including: (i) that he accepted the complainant’s account, an account he described as consistent, clear and convincing, making plain that he “had no difficulty accepting the majority of the evidence he gave either by way of the FVEIC interview or in his oral evidence before me”; and (ii) that the complainant’s account was corroborated by physical injuries and the evidence of his sister, Ms Poidevin, who was present for a portion of the incident involving the appellant. The Special Magistrate stated, “the victim’s evidence is corroborated by the bruising which can be seen on his arms, and more importantly, for most of the incidents it is corroborated by the evidence of his sister, who was present”.

108. This was a matter where the reliability of the complainant was a crucial step in the pathway to reasoning that the prosecution had discharged its burden. Once the complainant’s evidence was accepted and the reasons for satisfaction as to reliability articulated, the Special Magistrate did not need to extensively address the evidence he considered as corroborative of that reliable evidence. In those circumstances it was the kind of matter where “a sentence or two” addressing the credibility and reliability of Ms Poidevin sufficed: Wolter at [82]. The reasons of the Special Magistrate, while undoubtedly concise, did satisfactorily expose to the appellant the basis upon which he was found guilty and as was the case in relation to one of the charges, not guilty. The reasons satisfy the minimum acceptable standard.

109. It follows that the reasons were not inadequate. Accordingly, this ground of appeal has not been established.

110. If I am wrong about the adequacy of the reasons, then the analysis I performed as part of ground (a) addressing the arguments of the parties, identifying the issues for determination, and resolving any questions of law and fact, has addressed any inadequacy, such that the pathway to the outcome has been revealed. Conclusion

111. The appellant has not established any of the grounds of appeal. Accordingly, the appeal must be dismissed.

Orders

112. The appeal is dismissed.

I certify that the preceding one hundred and twelve [112] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: A Turner Date: 8 April 2024