Robinson v Calbert [2026] ACTSC 64

1. On the afternoon of 28 April 2024, the appellant in this matter, Christopher Robinson, went for a bicycle ride with his four-year-old daughter, a friend of his, and his friend’s two children. They were cycling along a shared bike path when his daughter’s foot slipped off the pedals and she hurt herself. She stopped, sat down in the middle of the bike path and started crying. Rather than simply moving his daughter onto the grass beside the bike path, the appellant positioned his bicycle across the bike path whilst he attended to her.

2. Also having a bike ride that afternoon was Paul Hertzberg, an experienced bicycle rider who was travelling along the same bike path. He came across the appellant who was stationary with his bicycle across the path. He said something to the appellant. The precise words used are in dispute but the essence of what he said was that the appellant should get off the path. He continued cycling towards the gym where he was headed.

3. Quite unreasonably, what Mr Hertzberg said angered the appellant. He abandoned his crying daughter, leaving her with his friend, and set off after Mr Hertzberg. It took him between 400 m and 500 m to catch up to Mr Hertzberg who had been travelling in the order of 25 or 30 km/h. Once he caught up with Mr Hertzberg, he yelled out at him. He is alleged to have pushed him too. Mr Hertzberg fell to the ground and suffered grievous bodily harm.

4. There is no doubt that the appellant was the cause Mr Hertzberg’s injuries. This the case whether he pushed Mr Hertzberg or not. Had he not allowed his daughter to remain on the path which was used not only by pedestrians but also by bicycles, and had he not become angry at what some people might think was a reasonable observation by Mr Hertzberg, and had he not angrily pursued Mr Hertzberg in order to remonstrate with him, Mr Hertzberg would have continued on his way unharmed.

5. But the question I have to decide is not simply who caused the injuries, the question for me is whether the appellant was rightfully convicted of a criminal offence arising out of the events I have described.

The course of the proceedings

6. The appellant was charged with doing an unlawful or negligent act causing grievous bodily harm. He consented to summary jurisdiction and so the matter was heard in the Magistrates Court on 28 March 2025. Mr Hertzberg gave evidence for the prosecution. The appellant gave evidence in his case and called character evidence from three witnesses. Both parties addressed. The magistrate reserved her decision for just under a week.

7. On 3 April 2025 the magistrate delivered judgment in which she gave her reasons for convicting the appellant.

8. He now appeals to this court arguing the following grounds of appeal: (a) Her Honour erred in rejecting the evidence of the defendant’s good character; (b) Her Honour erred in rejecting the evidence of the defendant; (c) Her Honour impermissibly engaged in speculation in the absence of evidence leading to error; and (d) The finding of guilt is unreasonable.

A preliminary matter

9. At the hearing of the appeal, I raised for consideration what should happen if I were to uphold grounds (a), (b) or (c), but nevertheless find that, on my own consideration of the evidence, not making any of the errors referred to in those grounds, I was satisfied beyond reasonable doubt of the appellant’s guilt.

10. The prosecution submitted that I would therefore dismiss the appeal, relying on some things I had said in Alexander v Bakes [2023] ACTSC 103 at [144]-[146] (although there was an appeal from my decision, Alexander v Bakes [2023] ACTCA 49, that appeal was dismissed and in any case that part of my judgment was not the subject of appeal). Ms Jones SC, who appeared for the appellant, relied on Waring v Laws [2020] ACTSC 33 at [21]-[22] and submitted to the contrary, namely that I should remit the matter to the Magistrates Court for a re-hearing according to law.

11. As matters have turned out, I have not found it necessary to resolve this issue because of the attitude I have taken to ground (d) which asserts that the finding of guilt is unreasonable. This conclusion makes it unnecessary for me to deal with the earlier grounds, beyond noting that some aspects of what is complained about under those grounds may explain why the magistrate and I have reached different conclusions.

12. It is my task to ask myself whether I think that upon the whole of the evidence it was open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty (see Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 at [37] and Alexander v Bakes [2023] ACTCA 49 at [14]). Mr Hertzberg’s evidence

13. It was Mr Hertzberg’s evidence that as he was riding along after saying “get off the path” to the appellant, the appellant came up beside him and deliberately shoved or pushed him which caused him to fall, landing on his right side. It is important to note that the prosecution case was based on there being a push or a shove of by the appellant. Although the offence can be committed negligently, it was no part of the prosecution case that negligence could arise in any circumstance other than if the appellant pushed or shoving Mr Hertzberg.

14. That means it was essential for the magistrate to find that Mr Hertzberg was pushed or shoved by the appellant before she could find him guilty, and it is essential that I must be satisfied that of fact beyond reasonable doubt if I am to dismiss this appeal.

15. There is no doubt Mr Hertzberg made immediate complaint. Even the appellant’s evidence was that “he asked me why I pushed him” T:44.43 (I have corrected an obvious transcription error or an error in what the appellant said). Mr Hertzberg made a 000 call very soon afterwards in which he repeated the assertion that his fall had been caused by the appellant pushing him. He has said that to many people subsequently, including doctors who treated him.

16. The magistrate accepted Mr Hertzberg as an honest and credible witness. Her Honour had advantages which are denied me, in particular the ability to observe Mr Hertzberg as he gave his evidence, and to see the many demonstrations in the witness box that Mr Hertzberg performed, (see for example T: 13.28, T: 15.13, T: 23.7).

17. It is important to remember the words of McCallum CJ in Garay v The Queen (No 3) [2023] ACTCA 2 at [31]: 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.

18. In this case Ms Jones did not submit that Mr Hertzberg was lying, or that he was being deliberately untruthful. She raised for my consideration the submission that, given the speed with which the relevant events unfolded, he may well have been mistaken as to how it was he came to be lying injured on the ground. When giving his version of events to police and being asked which part of the appellant’s body connected with his he said “it would have been his shoulder. It’s hard to know exactly because, like, my memory is basically stacking it”. I interpret that as Mr Hertzberg saying that things happen so quickly that he is unable to perceive exactly what it happened beyond him falling. In his evidence he said that it “happened in a split second”.

19. Thus, Mr Hertzberg’s consistency of conduct and consistency of the version of events he gave may, Ms Jones suggests, all flow from the same mistake he made as to how it was he ended up falling from his bicycle, that being an understandable mistake because everything happened so quickly.

20. I am satisfied that Mr Hertzberg was not being deliberately untruthful. He was doing his honest best when he spoke to others, and in his evidence in court, to give an accurate account of what occurred. But I do have to recognise the possibility that he is understandably mistaken, given the speed at which these events unfolded.

Physics

21. Both in the Magistrates Court and in this appeal the appellant relied on what was said to be the physics regarding the way the Mr Hertzberg fell. Mr Hertzberg’s evidence was that the appellant came up on his, Mr Hertzberg’s, right side and shoved him to the right side of his body. He ended up falling on his right side. It was submitted to the magistrate, and this submission was repeated before me, that that made no sense. It was submitted that if a person riding a bicycle is pushed on his right side, he or she will tend to fall to the left.

22. That argument has some superficial attraction, but it is not an exaggeration to say that if someone on a bicycle becomes unbalanced, almost anything can happen. The push may have caused Mr Hertzberg’s wheels to wobble, he may have overreacted to the perception that he was falling to his left, or he may have over-steered to his left in order to regain his balance. When I put these propositions to Ms Jones, she reminded me that Mr Hertzberg did not give evidence that any of these events occurred, there was no expert evidence that they could occur, and that where proof beyond reasonable doubt is required, an argument with “superficial attraction” can be enough to raise a reasonable doubt.

23. Thus the “physics argument” is a matter which tends to suggest that Mr Hertzberg’s fall to the ground was not the result of him being pushed to his right-hand side.

The appellant’s evidence

24. The appellant gave evidence. His explanation for Mr Hertzberg’s fall was that the handlebars of both bicycles became entangled. The magistrate rejected the appellant’s version of events. Her Honour said (emphasis added): I do not accept that the collision occurred in the manner he described, that the handlebars became entangled. I consider this implausible given the likely placement of the riders hands, the placement of the handlebars and each bike, the types of the handlebars and the likely positions of the bikes.

25. It will be seen that part of the reason that she rejected the appellant’s account was that, if Mr Hertzberg’s hands were in a certain position on his bicycle, then the handlebars could not have become entangled as the appellant said they did. I agree with her Honour’s assessment. I agree that if Mr Hertzberg’s hands were in a certain position on his handlebars, the collision could not have occurred as the appellant said it did.

26. However, there was no evidence given by Mr Hertzberg as to where on the handlebars of his bicycle his hands were placed immediately before his fall. No one asked him as part of the investigation or in evidence. His handlebars were of the type commonly found in racing bicycles. In the court below they were referred to as “drop handlebars”. It is common knowledge, I would suggest, that riders with such handlebars sometimes have their hands on the lower portion of the handlebars to reduce wind resistance, and sometimes have their hands on the upper, horizontal portion of the handlebars in a more relaxed stance. The magistrate’s rejection of the version given by the appellant was dependent upon Mr Hertzberg having his hands in the former position, but, as I’ve said there was no evidence that this was the case, or even that it was “likely”. There was no evidence at all that the conditions necessary for her Honour’s rejection of the appellant’s version were present.

27. I too have some trouble accepting the appellant’s version of events, but that does not mean that I am satisfied beyond reasonable doubt that it is untrue (see Liberato v The Queen (1985) 159 CLR 507). It is a remarkably detailed explanation as to how Mr Hertzberg fell in circumstances where, as I’ve already noted, and as the appellants counsel impresses upon me, things happened very quickly indeed. But, it remains a possible version of events.

28. It is here that it is important to remember that the prosecution made it clear that its case was based on the appellant pushing or shoving Mr Hertzberg. Chasing after someone and then riding so close to them that the two bicycles’ handlebars become entangled may, and I’m not deciding that it is, amount to negligence, but at the Magistrates Court the prosecution disavowed any suggestion that it could succeed without proving beyond reasonable doubt that there was a shove or push, as a result of the way in which the charge was particularised.

29. There are a number of features of the evidence on which the appellant is entitled to rely. Character evidence

30. As I mentioned earlier, the appellant called character evidence. To summarise very broadly, that evidence suggested that he was not the sort of person who would deliberately push another person off a bicycle. The magistrate rejected that evidence saying “I do not accept the character evidence in relation to the defendant’s temperament…” This was despite the evidence of the character witnesses being unchallenged by the prosecution.

31. In making my decision I will take the character evidence into account, but will also note that people do act out of character at times, and the character evidence would have suggested that the appellant was not the sort of person to do something he undoubtedly did, namely cease caring for his crying daughter so that he could chase after Mr Hertzberg in anger.

32. On the other hand, it is one thing to get angry at someone and then chase them in order to remonstrate with them, and another thing to deliberately shove someone off a bicycle travelling at speed. The unchallenged character evidence must be taken into account in deciding whether it has been proved beyond reasonable doubt that the appellant did what he is alleged to have done.

33. I have to remember also that the fact that he has no convictions, and is the sort of person about whom the character witnesses spoke, may make it less likely that his evidence in the Magistrates Court was untruthful.

What the appellant did after Mr Hertzberg was injured

34. One important matter to consider is what the appellant did after Mr Hertzberg had fallen. If, as the prosecution alleges, the appellant deliberately shoved Mr Hertzberg, the only reason for having done so would be to cause Mr Hertzberg to fall off his bicycle. Thus, according to the prosecution, the appellant achieved exactly what he wanted to achieve. If that was the case one might have expected the appellant to have ridden off into the distance, probably never to be identified.

35. But that is not what the appellant did. He stopped, return to where Mr Hertzberg was lying, called 000 and spoke to police, enquired of Mr Hertzberg whether he wanted an ambulance, produced his driver’s licence and allowed Mr Hertzberg to photograph it. This all occurred after Mr Hertzberg told him that he was going to report matters to police. These actions tend to suggest that the appellant considered himself innocent of any wrongdoing. Conclusion

36. Making full allowance for the advantages that the magistrate had in determining whether she was satisfied beyond reasonable doubt of the appellant’s guilt, I am unable to find that it was open to her Honour to reach the conclusion that she did.

37. As the magistrate recognised, this is a case where the prosecution relied exclusively on the evidence of a single witness. Accordingly, and consistent with the requirement that guilt be proved beyond reasonable doubt, that witness’s evidence has to be scrutinised carefully in order to be satisfied of the accused’s guilt to the high standard required by the criminal law (see R v Murray (1987) 11 NSWLR 12). I cannot exclude the reasonable possibility that in the chaos of the moment Mr Hertzberg has wrongly perceived that he was pushed. I’ve no doubt that he honestly believes that he was, but the prosecution has not satisfied me that there is no reasonable possibility of him being mistaken.

38. The appellant gave evidence. He provided an explanation consistent with innocence. Although, as I’ve said earlier, I have some troubles accepting what he said, the version that he gave is a reasonably possible explanation for how it was that Mr Hertzberg ended up on the ground significantly injured. In this regard I take into account the evidence as to the accused’s character, in particular that such evidence makes it more likely that he was telling the truth when he gave his evidence than would have been the case if he did not have the character that the witnesses spoke off.

39. The result is that the appeal is allowed and the conviction is quashed. That is the order I make.

Orders

40. The orders of the Court are: (1) The appeal is allowed and the conviction is quashed.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman.

Associate: Date: