Supreme Court of Tasmania|2010-12-22|Before: Wood J

Robinson v Chatters [2010] TASSC 66 (22 December 2010)

CITATION: Robinson v Chatters [2010] TASSC 66

PARTIES: ROBINSON, Nathan John (Senior Constable)

Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - Matters relating to decision - Duty to state reasons - Dismissal of charges - Whether sufficient reasons for decision given.

Phillips v Arnold [2009] TASSC 43; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, applied.

Judgment Number: [2010] TASSC 66

1 The defendant, Nathan Grant Chatters, was charged with a number of offences on complaint, including three charges of assault, contrary to the Police Offences Act 1935, s35(1), a charge of drive while disqualified (Vehicle and Traffic Act 1999, s13(1)), and a charge of unlawfully possess dangerous article in a public place involving a wooden bat, two steel bars, one paring knife and two golf irons (Police Offences Act, s15C(1)). The charges all related to an incident that took place outside the United Service Station on the Brooker Highway in Lutana on 26 April 2009.

2 The defendant pleaded not guilty to the charges. Magistrate Daly conducted the hearing on three dates in November 2009 and February 2010. On 12 February 2010, the learned magistrate delivered his decision, finding the defendant not guilty of the three charges of assault, and guilty of the other two charges of driving while disqualified and unlawfully possess dangerous article in a public place. On behalf of the prosecution a notice to review has been lodged with respect to the learned magistrate's decision that the defendant (now the respondent) was not guilty of the three charges of assault.

3 The assault charges related to complainants, husband and wife, Samuel and Tanya Allie, and their daughter, Rebecca Allie. The particulars of the three charges of assault are as follows:

"PARTICULARS: You are charged with on the 26th April, 2009 at Lutana in Tasmania, unlawfully assaulting Samuel Brian ALLIE by punching him with your right fist to the face and then striking him to the nose and forehead with a wooden bat.

PARTICULARS: You are charged with on the 26th April, 2009 at Lutana in Tasmania, unlawfully assaulting Rebecca Anne ALLIE by grabbing her to the right upper arm and then spitting on her upper body.

PARTICULARS: You are charged with on the 26th April, 2009 at Lutana in Tasmania, unlawfully assaulting Tanya Maree Allie by grabbing her upper left arm."

4 The applicant moves to have the acquittals on counts 1 - 3 reviewed by this Court pursuant to the Justices Act 1959, s107, on the following grounds:

"1 The learned Magistrate erred in fact and/or in law in finding that the Respondent had acted in lawful self-defence when no reasonable view of the evidence would support such a finding;

2 The learned Magistrate erred in law in failing to give sufficient reasons for being unable to find the assault charges proven beyond reasonable doubt, and in particular: ... "

The questions raised by these grounds of review require a consideration of the evidence before the learned magistrate.

5 On Sunday morning, 26 April 2009, Samuel Allie with his wife Tanya Allie were taking their daughter and two grandchildren to a football game that their grandson was playing in. They stopped at the United Service Station at Lutana so their daughter, Rebecca, could purchase some drinks for the children. The defendant was at the petrol station in a motor vehicle, a Mitsubishi Magna, near the petrol bowsers. The prosecution case was that Rebecca Allie was verbally abused by the defendant as she walked past his car. An altercation involving the defendant and Mr Allie developed and during the altercation the defendant assaulted Mr Allie, first by punching him, and then later by striking him to the face with a baseball bat. The prosecution case was that as the assault upon Mr Allie took place, his wife and daughter tried to protect him, but they were also assaulted as particularised in the charges.

6 The defendant left the petrol station in his vehicle and returned a short time later with a female passenger. There was a further altercation and an incident when the defendant threatened Mr Allie with an iron bar and tried to strike him with it.

7 The prosecution called the complainants to give evidence and also two by-standers, Timothy French and Justin Wilton, who were at the petrol station obtaining fuel at the time of the incident. The prosecution also called Alexander Long who was driving past, the service station attendant, Mr Vidiar Sagar Palella, and police officers who attended after the incident and arrested the defendant.

8 The essence of the defence case was that the defendant was the victim of violence and aggression from Samuel Allie, and that the two female complainants were also involved. The evidence given for the defence was that the incident began when Rebecca Allie kicked the defendant's car as she walked past and he objected to this and swore at her. The defendant was attacked by Mr Allie and a fight ensued. He was set upon by others including the female complainants and two other males and retreated to his car, producing a baseball bat to fend off his attackers, and in order to do so, had brandished it about. He got into his vehicle and his partner Melanie Brown, who was seated in driver's seat during the incident, drove away. He went to his home nearby for a brief period and returned to the service station. When he returned there was a further altercation involving the same individuals. During the second incident Mr Allie went to attack him, and the defendant retrieved a baseball bat and told him to "fuck off". The defendant denied that he had produced a metal bar at any stage. The defence case consisted of the defendant and Melanie Brown.

The evidence given by the prosecution witnesses

9 I turn now to an outline of the evidence given by the witnesses. When giving evidence the prosecution witnesses often did not identify the male assailant as the defendant or by name as he was a stranger to them. In summarising the evidence of the prosecution witnesses, it is convenient for me to refer to the male as the defendant because there was no issue as to his identity. It was the actions attributed to the defendant that were disputed.

10 Mr Samuel Allie gave evidence that while he and his wife were seated in their four-wheel-drive black Territory his daughter was verbally abused by the defendant as she walked past his Mitsubishi Magna. His wife got out of the car and went to speak to the defendant, and she was also verbally abused. Mr Allie got out of the car and asked the defendant what his problem was. The defendant punched Mr Allie to the face and a fight then ensued.

11 According to Mr Allie's evidence the defendant briefly left but returned with a bat in his hand and struck Mr Allie with it across the bridge of his nose, knocking him to the ground. He got up and his daughter and wife were struggling with the defendant. Mr Allie was engaged in a further "scuffle" with the defendant, during which they both landed on the ground. The defendant got into his car and drove off alone. The defendant then returned with a female passenger and got out of his car with an iron bar. The defendant was grabbed by two men but then he went into the service station and raved at the attendant just before the police arrived. Photographs of the iron bar and the wooden bat, as well as Mr Allie's injury to his face were tendered as part of the prosecution case.

12 In cross-examination it was suggested to Mr Allie that his daughter had kicked the Mitsubishi Magna as she walked past it. Mr Allie gave evidence that he had not seen that. He had heard the defendant "carrying on" at his daughter but he did not know what that was about. It was suggested that Mr Allie had been the one to throw the first punch but he maintained that the defendant had delivered the first punch. He described it as a "pretty hard hit" and that it was his recollection that he went to the ground. Later, when asked about a statement he made to police soon after the incident, he said he had told police he staggered and did not tell police that the punch had sent him to the ground. However, he maintained that he went to his knees. He agreed that he had punched the defendant during the fight that ensued.

13 Rebecca Allie gave evidence that after arriving at the service station she got out of the car and walked towards the petrol station shop. As she did so she heard a male voice yelling and swearing. She gave evidence that she saw her parents get out of their car and a male assaulting her father by punching and hitting him. She saw him hit her father to the head with a wooden bat. She saw two males trying to get the defendant off her father. At this stage her father was on the ground.

14 Ms Allie gave evidence that the defendant threatened her numerous times and verbally abused her, swearing at her and calling her a moll. The defendant threatened to hit her with the "baton", saying that he was not scared to do so. He spat on her as well, to her upper body. Ms Allie described the male as really aggressive and threatening her and her father. The defendant tried to attack her father again and she endeavoured to get him off her father. It was at that time that he grabbed her right arm. Photographs of injuries were tendered showing a superficial injury to her arm.

15 After grabbing Ms Allie's arm, the defendant threatened to hit her with the "baton" again. He eventually went back to his car and, as Ms Allie was on her way to the shop, he stopped his car next to her and threatened to run her over before he drove off.

16 Ms Allie gave evidence that shortly afterwards, the defendant returned with a female passenger. By this stage Ms Allie was inside the shop at the petrol station. When Ms Allie was walking out the defendant brought the woman up to her, telling the woman to sort her out as a threat to Ms Allie. The defendant went to his car and produced a metal bar like a pole and began to threaten her and her father with it. He verbally abused them and threatened to hit them with the metal pole. She returned to the service station shop. She had some items on the counter. The defendant came in and swiped those to the side, and soon afterwards the police arrived.

17 In cross-examination Ms Allie agreed that on her way to the shop she had walked past the Mitsubishi Magna but denied kicking it and denied commenting that it was in her way. She stated that after walking past the vehicle she walked into the service station. She did not hear anyone yell at her on her way to the shop. She heard the defendant yelling and swearing at her parents and telling them to get out of the car. She did not hear her father raise his voice but she heard her mother ask the defendant what his problem was. She saw the male approach her father and attack him. That attack led to her father being on the ground. She did not see her father push the defendant or hit him.

18 She denied she became involved at the stage her father was on the ground and also denied holding the defendant and scratching him. She agreed that there were two other males present. Her evidence was that they were trying to help her father by grabbing the defendant and taking him off her father. She denied grabbing the defendant at that stage and denied that her father hit the defendant while she and her mother were holding the defendant. She maintained that her father was hit in the head with the "baton" while he was on the ground. She conceded that at one stage when the defendant threatened her with the bat she punched him to the body in self-defence and that at that stage she felt very threatened.

19 Mrs Tanya Allie gave evidence that she was driving her family to her grandson's football game and she pulled up at the service station. The defendant then pulled up in his vehicle. He began abusing her. Mrs Allie got out and said, "Listen here, no need to speak to me like that" and asked what was he on about. The defendant went to hit her and grabbed her by the left upper arm. Her husband got out of the car and the defendant punched him and he went down on the ground. Rebecca returned from the service station shop and asked what was going on and "why did you hit my dad". Mrs Allie gave evidence that the defendant "started on Rebecca" and grabbed her by the upper arm and was throwing punches. Mrs Allie was trying to stop it. Then the defendant got a baseball bat out of his car and struck Mr Allie with it across his face and head. She gave evidence that this caused injuries to his face. Mrs Allie also gave evidence that she later observed her daughter's arm was "all black".

20 Mrs Allie went into the service station and asked the service station attendant to phone the police. There were two males present who were trying to stop the situation and calm down the defendant. The defendant drove off and shortly afterwards he returned with a female. He got out of the vehicle holding a metal bar and he went to strike Mr Allie over the head with it. Mrs Allie gave evidence that the two male witnesses stopped him. Subsequently the police arrived.

21 In cross-examination Mrs Allie agreed that the defendant had verbally abused her daughter Rebecca Allie. During cross-examination it was suggested that the defendant had not grabbed her arm at all, but, she maintained that he had. She added that on several occasions the defendant had hold of Rebecca. She disputed the suggestion that her husband had approached the defendant and pushed him, maintaining that the defendant pushed her husband and hit her husband in the chest. She agreed that after her husband got back to his feet he could have shoved the defendant. She also agreed that her husband might have punched the defendant.

22 Constable Buck Rogers gave evidence that he attended the service station with Constable Splann at about 9am in response to information that there had been a disturbance. When he attended people had yelled to him "he's in there, he's in there, he's got an iron bar", and through the window of the service station shop he could see the defendant. The defendant was arrested and placed in a police vehicle. Melanie Brown, the defendant's partner was also present. A steel bar and wooden bat were seized. In cross-examination Constable Rogers agreed that the defendant did not have the metal bar with him and that the two items, the bar and wooden bat, were taken by police from the car. He also agreed that the defendant was making a request about obtaining video footage.

23 Senior Constable Nicola Parsons gave evidence that when she attended the incident with Constable Johnson there were other police in attendance. When she arrived the defendant was being placed in handcuffs. She spoke to Mr Allie and observed small cuts on the bridge of his nose and forehead. She was present during the search of the Mitsubishi Magna and she saw Constable Splann remove a metal bar and a wooden bat from underneath the driver's seat. Two golf clubs were also removed, as was a second metal bar, a wooden waddy and a paring knife.

24 Alexander Long gave evidence of his observations when he was driving to work and stationary at the traffic lights at the intersection of the Brooker Highway and Derwent Park Road. He noticed something going on at the service station and called the police. He saw two males in a fight. One of them had what "appeared to be a plank of wood of some form". The defendant was striking the older man with it, "it was like he was being belted with it" to his head or his shoulders. After making those observations, Mr Long had a green light and he was forced to move on. He went around the block and returned to the petrol station in order to provide some help to whoever needed it. It took him about 4 - 5 minutes to get around the block. When he returned, the incident was still going and the defendant now had what looked like a crowbar. There was a group of people around "yelling and carrying on". Mr Long made a second phone call to the police. Mr Long saw the defendant walk into the service station and then back out again before three police cars showed up. He stated that he had seen the defendant going to the Mitsubishi Magna at least once or twice.

25 During cross-examination Mr Long gave some further details of the first observations he made. He said that at one stage the older man fell to the ground and got back up. Mr Long was asked whether the older man was throwing punches and he responded "he looked to be defending himself or trying to defend himself".

26 Timothy French was at the service station with his housemate, Justin Wilton. He was filling his car with fuel and Justin Wilton was filling up a Thrifty Rent-a-Truck that they had both rented to move house. He heard some yelling and he saw the defendant going towards Mr Allie's vehicle. The defendant was yelling and screaming and started heading back to his car. Mr Allie got out of the passenger side of the Territory and started walking towards him. Mr French described that they started yelling and screaming at each other and also pushing and shoving each other. Mr Allie was pushed to the ground. Mr French did not see who pushed who first. At that stage Mr French went to assist because he thought Mr Allie was going to be "belted or assaulted". Justin was getting out of the truck and in fact the altercation was happening in front of the truck that Justin was sitting in. Mr French could not recall if Rebecca and her mother were there at that stage.

27 Mr French gave evidence that somehow Mr Allie and the defendant were separated. He said that they must have got into more of a scuffle which Justin Wilton and he were trying to separate. He was pretty sure that at that stage Rebecca and her mother were involved in trying to separate them as well. Mr French gave evidence that after they were separated, the defendant went to his car and got a small wooden bat out of the driver's side and returned, threatening Mr Allie. They got into a bit more of a scuffle and Mr French did not know if Mr Allie got hit with the bat, "but there was definitely some physical stuff going on". Both of them were trying to get to each other and he thought there were punches, as well as pushing and pulling. There were one or two altercations when the defendant had the bat and Mr French was involved in trying to separate them. Mr French gave evidence that during one of those altercations he grabbed hold of the bat as he thought the defendant was going to swing it at Mr Allie. At this point the defendant turned his focus to Mr French and told him to "get out of it".

28 Mr French gave evidence that the defendant went back towards the shop and yelled at the attendant. The defendant got into the Mitsubishi Magna and drove off. He said they thought the incident was over. A short time later the vehicle returned being driven by a female. When the defendant got out of the car, or soon thereafter, he had a small steel bar and he approached Mr Allie again, threatening and yelling at him. Mr French gave evidence that he did not think the defendant swung the steel bar or hit anyone with it, but there was a physical altercation that he and Justin tried to separate. Shortly afterwards the police arrived.

29 Mr French described Rebecca Allie as "amongst it trying to separate it most of the time". Mrs Allie was also involved.

30 In cross-examination Mr French said that at the beginning of the incident he did not hear anything that sounded like the banging or kicking of a car door. When the defendant was first walking towards the Territory he heard the defendant yelling something like "park wherever you want". Mr Allie got out of the Territory and started walking towards the defendant. The defendant turned around and Mr Allie may have been yelling "what's your problem?". He did not see who pushed who first. He did not recall seeing Mr Allie struck while he was on the ground. Mr French stated that they grabbed the defendant in order to separate the two. Mr French agreed that after Mr Allie got to his feet, and during the further scuffle that followed, Mr Allie threw punches or grabbed hold of the defendant. However, he did not agree that Mr Allie threw punches at the defendant or grabbed hold of him while the defendant was being held by him and Mr Wilton and the two women Rebecca Allie and Mrs Allie. He agreed that when the defendant went to his vehicle and got the bat they were all near the defendant's vehicle. Mr French did not agree that the defendant was yelling to get away from the car and from him. Mr French conceded that the words used were along the lines of telling them to "back off". He did not recall the defendant striking an obvious blow with the bat.

31 Justin Wilton gave evidence that he was at the United Service Station and noticed a black four-wheel-drive Territory and a Mitsubishi Magna. He heard yelling and looked over and he said he believed there was an argument between a woman, the driver of the Territory, and the defendant. The argument was with the older lady (Mrs Allie) when she was on her way to the shop. Then after probably thirty seconds Mr Allie exited the car, the two men had an argument, and the defendant threw a punch at Mr Allie. Mr Allie was taken off balance. Mr Wilton thought there were probably three punches thrown as Mr Allie was going down, and then afterwards a scuffle. The punches connected around the shoulder and head. Mr Wilton thought it was about to get a bit too serious and so he came in from one side to try and get between them and hold them apart. Tim French had tried to get in between them without too much effect, but Mr Wilton gave evidence that together they were able to separate them a little bit.

32 They were able to keep them apart for a while and then the defendant went to his car and returned with a short wooden bat. There was a further argument and Tim continued to try and keep them separated, during which time there were a few swings of the bat at Mr Allie but Mr Wilton was not sure how often they connected. There were two or three that were more of a glance. The defendant left in the Mitsubishi Magna and then the Magna returned with the defendant and a female.

33 The defendant came over towards the group with a metal bar in his hands but they were able to keep a distance and so there was no connection with the bar. Mr Wilton gave evidence that they were able to keep them apart and not long after the police arrived.

34 In cross-examination Mr Wilton gave evidence that at some stage during the first incident (before the defendant left and returned), he heard an argument between the defendant and the younger woman. During that argument the defendant accused the woman of kicking his car. Further, he agreed that at the beginning of the altercation he believed that Mr Allie pushed the defendant, and the defendant pushed back. He gave evidence that he did not see who threw the first punch. He believed there were punches going in both directions. The main punch he saw was the one that had Mr Allie falling backwards. He gave evidence that he would say that that punch was the first one. He maintained that there were further punches being thrown as Mr Allie was going to the ground. He agreed that both Mr Allie and the defendant were on the ground briefly and were grappling with each other.

35 Mr Wilton agreed in cross-examination that after the defendant produced the bat he was waving it and telling Mrs Allie and her daughter to back off. Mr Allie approached the defendant while the defendant had the bat and there was more of a scuffle at that stage. He agreed he did not see the bat connect with Mr Allie.

36 Mr Vidiar Sagar Palella, the service station attendant, also gave evidence for the prosecution. His evidence was relevant to the charge of driving while disqualified and he gave evidence that the defendant drove the Magna Mitsubishi into the service station. The defendant obtained some fuel and he recounted that two women came into the shop and one of them asked him to call the police. He next observed the defendant return to the petrol station in his car with a woman. Mr Palella saw the defendant get out of the car with something black in his hand. Mr Palella heard people shouting outside and two women came inside his shop two or three times and asked him whether the police were coming. The police attended and the defendant left with police.

37 The defendant gave evidence that he and Ms Melanie Brown lived at Lutana, and on the morning of the 26 April were going somewhere such as the beach or on a picnic. They travelled in Ms Brown's Mitsubishi Magna and Ms Brown drove. They called into the petrol station and he pumped some petrol into the car. There were a number of cars queuing from the highway waiting to use the petrol pumps. A four-wheel-drive vehicle jumped the queue and Melanie was unable to reverse her car out to move around a taxi in front. The defendant gave evidence that somebody yelled out from the four-wheel-drive about moving the car and the defendant said "oh well if you can park where you want to park we'll park where we want to park".

38 The defendant gave evidence that he was on his way to the shop when he heard a couple of big bangs and he saw a "black headed sheila standing there booting the passenger's side of the car screaming out". The defendant confronted her and she started screaming at him about the car and where it was parked Her mother joined her and tried to stop her but ended up joining in with the abuse. Then Mr Allie came flying towards him and "chested straight into me chest and started screaming down me throat". The defendant described Mr Allie ranting and raving at him and then either pushing him first or punching him in the shoulder, grabbing hold of his shirt, twisting it and hammering into his face with the back of his other hand. The defendant gave evidence that Mr Allie struck him at least a couple of times.

39 At that stage the defendant described having Mr Allie hanging off the front of him, Mrs Allie hanging off the left side of him, and then two other men coming in, one each side of Mr Allie. The defendant gave evidence that he did not know whether they were helping him or trying to stop it, and in the end the defendant gave Mr Allie one or two punches that "dropped him". He struck Mr Allie because he would not stop hitting him. Mr Allie fell backwards onto the ground and the defendant fell on top of him because Mr Allie still had hold of his shirt. Mr Allie continued trying to throw punches while on the ground. They were separated by the two men.

40 As soon as Mr Allie got on his feet he came at him again, and as that happened, everybody jumped on the defendant; the two females, the two men and Mr Allie. The defendant gave evidence that he thought he was about to "cop a hiding and a half". He gave evidence that he used "every ounce of strength that I had to get them off me and bolted to the car door". He said he was panicking and got into the back passenger side of the car and retrieved a small baseball bat. He was standing close by the car and swinging the bat around "like a mad man" to keep everybody away from him. He did not strike Mr Allie with the bat. The others stopped and stayed there with Mr Allie's daughter who was telling her father "to kick his guts in". The defendant said that he then threw the bat in the car, jumped in the back of the car and told Melanie to "get the hell out of there". Ms Brown drove off and the defendant went home to get changed because his jumper and T-shirt were ripped. He noticed he had various injuries: a cut on the top of his lip, a blood nose and scratches down the back of his neck and up his arms.

41 The defendant gave evidence that he wanted to return to the service station because the police had been telephoned and he was aware there was surveillance footage. He said that he wanted to wait for the police to save them having to come around later and try to arrest him for something he had not done. The defendant and Melanie Brown returned to the service station. When he arrived Mr Allie's daughter was still saying things and would not stop. He went to go into the service station to ask them to hold the video tape, ready for when the police got there. He was met by Mr Allie at the door to the service station and Melanie came up to them. Mr Allie's daughter continued to verbally abuse the defendant and Melanie. The defendant and Melanie Brown returned to the Mitsubishi Magna and a group, including Mr Allie, his wife, daughter and the two men, were at Mr Allie's four-wheel-drive. Mr Allie came to attack the defendant, so he retrieved the bat and told him to "fuck off". He also told Mr Allie that they were waiting for the police. One of the two men also present was wrestling with Mr Allie. Soon after that the police arrived. The defendant gave evidence that he told the police about the video footage and he was arrested and taken to the Hobart police station.

42 During cross-examination the defendant was asked whether he had grabbed hold of Rebecca Allie to the upper arm when she was trying to intervene. His response was, " ... to be totally honest with you, I couldn't tell you, but in the midst of five people hanging off me I can't exactly tell you the whole details of who was grabbing me or who was getting grabbed". He could not recall grabbing hold of Mrs Tanya Allie but he thought at one stage he spat on the ground in front of her. He disputed spitting directly at any females. He denied producing an iron bar at any stage.

43 Melanie Brown, gave evidence about the events at the petrol station. Her evidence was that she went with her partner, the defendant, in her vehicle, a Mitsubishi Magna. While Ms Brown was seated in the car at the petrol bowser, a young woman had a row with the defendant. In trying to reverse away from the bowser, the four-wheel-drive vehicle had bumped her vehicle. The situation escalated and people gathered around. She referred to an older female, a male and two men. She saw pulling of clothes and things like that but no punches thrown or anything of that nature. The defendant returned to the car and just outside the car door he shook an object that appeared to be a metal pole at everyone and yelled at them. His shirt was ripped. They left the petrol station and went home.

44 Ms Brown gave evidence that the defendant wanted to change his shirt and go back to the service station and get the video footage. They returned to the service station and this time she got out of the car too. The defendant went into the service station and she confronted the people who were yelling at him. At one stage the older man apologised for his daughter's behaviour. The defendant and the older man exchanged threats during this second incident at the petrol station. The police pulled in while the defendant was requesting the video footage.

45 During cross-examination Ms Brown stated that at one stage the defendant retrieved a wooden bat from the car and shook it.

46 Brief submissions were presented on behalf of the defence and it was submitted that anything that the defendant did of a physical nature was done in self-defence. It was submitted that unless the magistrate could rule out the defendant's evidence and the evidence of Ms Brown, then a reasonable doubt would remain. The decision was reserved and oral reasons were provided a little over a week later on 12 February 2010.

47 After referring to the charges, the learned magistrate provided the following reasons for dismissing the three charges of assault (transcript at 249):

"All right, so they were the allegations. The - look, I could go into great length about the evidence against Mr Chatters, and there was a lot of evidence against him. He gave evidence himself, he didn't have to do that of course. I'll say this, look, I don't believe everything the defendant - the defendant said in his evidence but there is some support for the hypothesis that this was a fight and that he defended himself, what I am tasked with is to - deciding whether the prosecution has established beyond reasonable doubt that what he is alleged to have done was unlawful, that is that he wasn't acting in self-defence. First, the prosecution would have to establish beyond reasonable doubt that he wasn't holding the subjective belief that he was under some sort of attack, and secondly, that whether given his belief it was reasonable to use the actual force that he used. I don't think it's possible to draw inferences and make findings that would allow the prosecution to - or me to find that the prosecution's disproved that he was acting in self-defence. There's some support for the defendant's version from some of the police witnesses in relation to the critical facts on each assault count. There is no basis upon which I could completely reject his version in relation to each of the counts relating to the assault."

48 The reasons given for finding the charge of driving whilst disqualified and the charge of unlawful possession of dangerous articles proved are more detailed and shed some light on the learned magistrate's assessment of the witnesses:

"I've felt unable to rely on Ms Brown's evidence about her driving to the service station on the first occasion and it follows - relying too heavily on her evidence about what happened there, I rely more on all the evidence except hers in relation to the assault counts. I reject her evidence about her driving to the service station on the first occasion because the evidence is just too overly - sorry, overwhelmingly against that proposition. Mr Allie, Mrs Allie, Rebecca Allie, Mr French, Mr Wilton, Mr Sagar Palella all gave evidence about him driving either off alone or in and then off alone. Because of that I was unable to rely on her evidence in relation to the assaults because I find that she wasn't there. My impression of Ms Brown was someone who remembered things favourable to the defendant's case but was vague about other matters that I would have expected her to have evidence - to be able to give evidence - detailed evidence about if she was there. I put that down in some way to her relationship with the defendant and even corroborated I wasn't comfortable to rely on her evidence about the assaults.

I find each of the - well I'm unable to find any of the assault counts proved beyond reasonable doubt, I dismiss each of them. In relation to the driving whilst disqualified I've approached the case on the basis that he drove into and out of the United Service Station, Brooker Highway, a public street, Lutana - and I amend the complaint in that respect - while he was disqualified. I accept the evidences of those witnesses who said that he came and/or went alone. It follows that he drove, on his evidence, from his house very nearby to the service station and away. I find that charged proved beyond reasonable doubt, I have not accepted Mr Chatters' evidence about him driving to the service - about him not having driven to the service station and I've said - well I don't need to say any more about Ms Brown's evidence in that respect.

As for the dangerous articles, plainly he had a - he was in possession of the club, the waddy. The only other relevant item that I was satisfied that was a dangerous and be in his possession without reasonable excuse on the day was the steel bar that the evidence related to that he produced towards the end of the assaults, so I find that count proved beyond reasonable doubt only in that respect. So I find beyond reasonable doubt that on the 26th April 2009 without lawful excuse he had possession of dangerous articles, namely one wooden bat and one steel bar, in the United Service Station, Brooker Highway, a public place at Lutana in Tasmania." (Transcript at 249 -250)

Was it reasonably open to the magistrate to conclude that he was not satisfied beyond reasonable doubt that the defendant was not acting in self-defence?

49 The first ground of appeal asserts that the learned magistrate erred in finding that the defendant had acted in self-defence as no reasonable view of the evidence supported such a finding. This ground of appeal effectively states that the magistrate made a positive finding that the defendant had acted in self-defence. It is plain from the reasons that this finding was not made and that the reasoning of the learned magistrate was that the prosecution had failed to disprove self-defence. During submissions, counsel for the applicant elaborated upon this ground of appeal and refined his argument asserting that it was not open to the magistrate to have had a reasonable doubt as to whether the defendant acted in self-defence. This refined position more appropriately reflects the reasoning of the magistrate, that the prosecution failed to disprove self-defence.

50 An examination of the reasons is necessary to ascertain whether counsel for the applicant was correct in submitting that the conclusion of the magistrate leading to the three charges being dismissed was that the prosecution had failed to disprove self-defence. The learned magistrate expressed a view of the evidence that it could not substantiate a finding of satisfaction beyond reasonable doubt. The reasons suggest a fundamental flaw in the evidence or difficulty with the nature or quality of the evidence such that a reasonable magistrate could not reach an outcome other than an acquittal. The magistrate's reasons included the following remarks: " I don't think it's possible to draw inferences and make findings that would allow ...". "There is no basis upon which I could completely reject his version..." (my emphasis).

51 It should be noted that the learned magistrate's reasons display a limited consideration of the evidence. This may suggest that the learned magistrate considered that there was a fundamental deficiency in the evidence of a kind which provided an insurmountable hurdle for the prosecution, and which meant that an evaluation of the evidence was not required. If the learned magistrate's reasons are read literally, then the reasons went beyond concluding that he was not satisfied beyond reasonable doubt that the prosecution had not disproved self-defence. Furthermore, an error would be shown as there clearly was a basis or bases upon which a reasonable magistrate could reach a conclusion of guilt beyond reasonable doubt. An obvious pathway to a finding of guilt would be if the evidence of the complainants was accepted by the magistrate as providing a cogent account, and the defendant's version was rejected as not credible.

52 It is to be noted that the submissions on behalf of the applicant do not invite a literal approach to the reasons. I consider that it may be assumed that the learned magistrate was speaking from the perspective of his own assessment and evaluation of the evidence, and not speaking about whether the prosecution evidence was capable of satisfying a magistrate or whether the defendant's version could be rejected. Perhaps the language was employed by the magistrate to underscore his view of the strength of the defence case and weaknesses in the prosecution case.

53 It must be borne in mind that there were three charges of assault under consideration and the learned magistrate did not give separate consideration to each charge in his reasons. It appears from a consideration of the entirety of the reasons provided, as set out above, that the learned magistrate dismissed all three charges on the same basis. I accept counsel for the applicant's description of the basis for the magistrate's conclusion, and I proceed on the basis that the learned magistrate was not satisfied that the prosecution had disproved that the defendant was acting in self-defence.

54 I must say it is not completely clear that all the charges were found not proved on that basis. If there was some other basis then it is not identified in the reasons.

55 This ground of appeal may only succeed if the conclusion of the magistrate that the prosecution failed to disprove self-defence was not reasonably open. A summary of the principles regarding notices to review is set out in Phillips v Arnold [2009] TASSC 43, by Crawford CJ, at par[46]:

"Those principles include the following. The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117."

56 The question that arises on a motion to review was considered by Porter J in Kent v Gunns [2009] TASSC 30. At par[7] it was noted that the question that the court is concerned with is "whether the magistrate's decision was reasonably open on the evidence; that is, whether on the evidence the only conclusion reasonably open, judged by the criminal standard of proof, was that the respondent was guilty as alleged."

57 This ground of review concerns the factual conclusion reached by the learned magistrate that the prosecution had not disproved self-defence. Submissions on behalf of the applicant made no criticism of the consideration or statement of the law of self-defence, and noted that the learned magistrate had correctly stated the law regarding self-defence.

58 The law as to self-defence in Tasmania is set out in the Criminal Code, s46, which provides:

"46 Self-defence and defence of another person

A person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use."

59 As the learned magistrate correctly stated, where self-defence is raised by the defendant, the prosecution bears the onus of proving beyond reasonable doubt that the acts in question were not done in lawful self-defence. As also correctly noted, the Code, s46, requires consideration of whether the defendant was acting to defend himself, consideration of the subjective belief of the defendant about the circumstances at the time, and further, whether the force used was reasonable. The reasons of the learned magistrate noted that the prosecution had the task in this case of disproving two matters: the defendant's subjective belief that he was under attack and also, given his belief about the circumstances, that the force he used was reasonable. It was no doubt appreciated by the learned magistrate that the onus that the prosecution bears of proving that the act in question was not done by way of lawful self-defence is discharged in any particular case if one of those matters is disproved beyond reasonable doubt.

60 It was submitted on behalf of the applicant that no reasonable view of the evidence would support a conclusion that the defendant had acted in self-defence in relation to the three charges. This contention focuses on the evidence and whether it was open for the magistrate to make findings giving rise to the conclusion reached.

61 In relation to charge one and the first-mentioned particular alleging a punch to Mr Allie, there was evidence from Mr Allie that the defendant punched him and sent him to the ground. Mr Allie gave evidence that this was the first punch between them which occurred before the fight broke out. There was supporting evidence from other witnesses that the defendant punched Mr Allie sending him to the ground and then afterwards there was a scuffle. The defendant's evidence was that he was threatened and "chested" by Mr Allie, and he was punched by Mr Allie a number of times before he gave Mr Allie one or two punches because Mr Allie would not stop hitting him.

62 It was reasonably open for the learned magistrate to reject the prosecution account and prefer the defence account that the defendant punched Mr Allie as he was being repeatedly punched. It was also reasonably open for the magistrate to have a reasonable doubt regarding this particular on the basis that he was not satisfied beyond reasonable doubt that the prosecution had disproved self-defence. In other words, the magistrate could have had a reasonable doubt about whether the defendant punched Mr Allie by way of lawfully defending himself.

63 In relation to the second mentioned particular in charge one alleging that the defendant struck Mr Allie to the nose and forehead with a wooden bat, there was evidence from Mr Allie and also evidence substantiating his account from Ms Allie, Mr Long and Mrs Allie. On the other hand, there was evidence from the defendant that he did not strike Mr Allie and that he merely waved the bat about, using it to ward off people including Mr Allie. If the defence version was accepted then self-defence does not arise as the defendant only waved the bat about and did not strike Mr Allie as alleged. Another reasonable view of the evidence that was open was that the striking occurred, but that the defence had raised a doubt about whether the defendant was acting in self-defence at the time. It was reasonably open to the learned magistrate to either accept the defence account and find that the defendant did not strike Mr Allie, or to conclude that if the striking of Mr Allie with the bat occurred, the defence had raised a reasonable doubt about self-defence which had not been disproved by the prosecution.

64 The second charge alleges two particulars of assault relating to Ms Rebecca Allie. The charge contains one particular of assault by grabbing Ms Allie by the upper arm, and a second particular of spitting on her upper body. In relation to the allegation of grabbing Ms Allie's arm, Ms Allie gave evidence that she was grabbed by the defendant and that her arm was injured. Mrs Allie's evidence supported her daughter's account. The effect of the defendant's account was that he did not intentionally grab any females. During cross-examination the defendant conceded that at one stage of the incident he could not say who was grabbing him and was "getting grabbed", meaning presumably grabbed by him. The effect of the defendant's evidence was to concede that it was possible he could have grabbed the women in the process of defending himself. While the defence case is a denial of this allegation, it has obliquely raised self-defence. It was open to the magistrate to take the view that the defendant's account was credible and if an intentional grabbing occurred, there was a reasonable doubt as to whether that was done as part of his actions in defending himself.

65 In relation to the allegation of spitting, there was evidence from Ms Rebecca Allie that the defendant spat on her upper body. Her account was that this occurred at about the time that the defendant was wielding the bat and at about the time that he grabbed her arm. The defendant denied spitting at Ms Allie and stated that he thought he spat on the ground in front of Mrs Allie, (not Rebecca Allie). There was no concession made by the defendant during his evidence that he could have spat at Ms Allie in self-defence. It was reasonably open to the learned magistrate, having accepted Ms Allie's account and having found that the spitting at her upper body occurred, to find that the defendant's evidence regarding the incident generally raised a reasonable doubt as to whether he was acting in self-defence at the time. It was reasonably open to the magistrate to consider that the defendant's evidence about the incident was reasonably credible, resulting in reservations about Ms Allie's evidence regarding the circumstances in which the spitting occurred. The magistrate could have found that the spitting occurred in the circumstances of the defendant being set upon by a number of strangers as described by the defendant. In short, it was open to the magistrate to conclude that the defendant spat on Ms Allie's upper body but that it occurred in the circumstances as described by the defendant of him being set upon by a number of strangers and that self-defence had not been disproved. It was possible that the magistrate having reservations about the detail of Ms Rebecca Allie's evidence could be left with the reasonable doubt about self-defence with regard to the allegation of spitting.

66 The allegation in charge 3 is that the defendant grabbed Mrs Tanya Allie to the left upper arm. The evidence of Mrs Allie regarding this matter and the circumstances, if accepted, were capable of establishing this charge beyond reasonable doubt. Mrs Allie's account of the incident was that the grabbing occurred early in the incident before the defendant's altercation with her husband, and before Mr Wilton and Mr French and her daughter became involved. The effect of the defendant's evidence was that he denied grabbing any women, but that grabbing could have happened as he defended himself. If the learned magistrate accepted Mrs Allie's account of the stage when the grabbing occurred, then the weight of the evidence would suggest that there would not have been a need for the defendant to defend himself at that time. However, the magistrate could have rejected Mrs Allie's account about when and in what circumstances the grabbing occurred. The magistrate could have possibly rejected the defendant's evidence denying he grabbed Mrs Allie, and find that he did grab her. The magistrate could, notwithstanding that finding, conclude that there was merit in the defendant's account about the events generally and accept that the grabbing could have occurred in the context of the defendant being set upon as described by the defendant. The magistrate could have found that the grabbing occurred at a time when the defendant was set upon and therefore a reasonable doubt existed as to whether he was lawfully defending himself.

67 In relation to charge 3, it is possible that the learned magistrate could have had reservations about the detail of Mrs Allie's evidence and been left with a reasonable doubt about self-defence. The steps involved in this reasoning involve accepting some of Mrs Allie's account but not all of it. There was a possible path of reasoning available to the magistrate, albeit somewhat obscure, that could have taken him to the conclusion reached in this case.

68 My assessment is that on the evidence it was possible for the learned magistrate to reach a conclusion that in relation to all three charges he was not satisfied beyond reasonable doubt that the defendant was not acting in self-defence. As previously observed, it is not entirely clear from the magistrate's reasons whether all the charges were dismissed on the basis of a reasonable doubt as to self-defence. With this observation in mind I note it was reasonably open to the magistrate to conclude that he was not satisfied beyond reasonable doubt that the acts occurred as alleged and that he did not need to consider self-defence.

69 The first ground of appeal does not succeed. Having determined that the conclusion reached by the learned magistrate was reasonably open to him, I turn now to consider the reasons given for the magistrate's conclusion and whether they are adequate. This is the issue raised by the second ground of appeal.

70 It is well established that a judge or magistrate has an obligation to give adequate reasons in particular cases and that a failure to do so when required is an error of law: Pettit v Dunkley [1971] 1 NSWLR 376. There was no question that in this case the learned magistrate was required to give reasons. It was noted by Porter J in Phillips v Arnold (supra), at par[71], that cases where magistrates would not be required to give reasons when dealing with criminal matters would be a rarity. The question that arises in this review is whether the reasons given by the learned magistrate are adequate. In assessing this question the focus is not on reasons that may be desirable or optimal but those that are necessary as a minimum requirement.

71 The rationale underpinning the requirement to give reasons for decisions has been analysed and is well accepted. Two reasons for the obligation are of fundamental importance. They have been identified by Crawford CJ in Phillips v Arnold (supra), par[64]:

"The reasons why the law requires adequate reasons for decisions have been stated many times. They include that the parties should be given an understanding as to why the case was decided in the way it was. In particular, the losing party should be so informed. The need for open justice is regarded as paramount. Another reason arises out of the fact that Parliament has given a right of appeal or review of a decision. Without adequate reasons, an appeal cannot be laid properly and sufficiently before the appellate court and the decision cannot be examined adequately."

72 Other justifications of the judicial duty to state reasons have been identified. (Kirby P and McHugh JA at 279 in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, at 442, and Judicial Accountability (1995) 2 TJR 117 at 122, the Honourable Murray Gleeson AC The Judicial Review, Vol 2 March 1995, No 2, at 122). The question then is what is the nature and extent of the duty that the law imposes.

73 The content of the obligation to give reasons has been examined in many cases. The principles are well settled. These principles do not provide an exhaustive check-list or definitive statement of what is required. The courts have avoided establishing a test or formula that can be applied in assessing whether reasons qualify as adequate. It is often emphasised that the extent of the duty to give reasons depends on the nature and circumstances of each case.

74 It is worthwhile considering the principles that apply in some detail. I set out now the principles governing this case and of general application regarding the extent and nature of the duty to provide reasons. The principle of over-arching importance is that in assessing whether reasons are sufficient, reference is to be had to the purpose of the obligation to give reasons. The scope of the reasons to be given is related "to the function to be served by the giving of reasons": Soulemezis (supra), per Mahoney JA at 270. In Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, Mahoney JA stated, at 386: "reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it." Therefore, it is necessary that the reasons contain enough detail to enable an appeal court to effectively discharge its functions and for the parties to understand why they have won or lost (Mahoney JA in Soulemezis, at 270; Beale, at 442, per Meagher JA).

75 This consideration has been characterised as of primary importance in determining the content of the reasons: Beale (supra), at 444. It has been neatly described as "the touchstone of ability to understand why the decision was made" (Athens v Randwick City Council [2002] NSWCA 83. See too Pettit v Dunkley (supra), per Asprey JA, at 382: the reasons should state the findings and reasons for the decision adequately for the "purpose of enabling a proper understanding of the basis upon which the verdict has been reached").

76 Other well settled statements of principle examining the nature and extent of the duty to provide adequate reasons are as follows:

• There is an obligation to reveal the reasoning for resolving points critical to the issues between the parties (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at par[58]). The reasons must do justice to the issues posed by the parties' cases: Pollard (supra), at par[59]. It is necessary to at least state the grounds which have led the judge or magistrate to the "conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues": Kirby P in Soulemezis at 259. There is an emphasis in these observations that the reasons should address the "issues between the parties".

• The extent and content of reasons will also depend upon the way the trial was conducted and the arguments that were presented: R v Keyte [2000] SASC 382; (2000) 78 SASR 68, Beale (supra), at 442.

• In Beale, Meagher JA noted three fundamental elements useful to consider at 443 - 444, and I summarise:

1 There should be reference to relevant evidence (evidence critical to an issue in a case must be dealt with in reasons: Mifsud v Campbell (1991) 21 NSWLR 725, at 728). Where conflicting evidence is given both sets should be referred to.

2 The setting out of any material findings of fact and any conclusions or ultimate findings of fact reached. Where one set of evidence is accepted over a conflicting set of significant evidence, the findings as to how a magistrate or a judge came to accept the one over the other should be set out.

3 Reasons should be provided for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found.

•

A tedious examination of detailed evidence or a minute explanation of every step in the reasoning process is not required: Kirby P in Soulemezis, at 259. The reasons need not be lengthy or elaborate. An elaborate argument may not require an elaborate answer (Mahoney JA in Tatmar (supra), at 386; see also Mahoney JA in Soulemezis, at 271).

•

There is evident in the cases a legitimate anxiety about enlarging the scope of the duty beyond the essentials set out above. There are good reasons why the duty should not be unduly burdensome. This is particularly the case with busy trial courts and even more so with magistrates courts : Beale at 444, Kirby P in Soulemezis, at 259 - 260, Pollard at par[56], Nevermann v R (1989) 43 A Crim R 347, at 350, Porter J in Phillips at 71, Garrett v Nicholson [1999] WASCA 32, at 248.

77 The judicial duty of a magistrate to provide reasons was considered by Underwood J (as he then was) in Australian Securities Commission v Schreuder [1994] TASSC 127, at par[21]. A useful summary of some of the general principles was stated as follows:

"1 Make findings with respect to the essential facts relied upon by the complainant and the defendant relevant to the elements of the charge.

2 Where the evidence with respect to those facts was in dispute or unclear, state the basis for making such findings.

3 Where appropriate, state what inferences he drew from the facts found and where necessary, the basis for drawing such inferences.

4 To expose the reasoning process which resulted in the orders made to the scrutiny of the parties and any appellate court."

78 In this case the credibility of witnesses was an important issue having a bearing on the findings and conclusions to be drawn. The nature and extent of the duty to provide reasons in relation to the credibility of witnesses has been considered in a number of cases. Recently in Phillips v Arnold (supra) the Full Court considered whether it was sufficient for a magistrate to state merely that the particular evidence accepted by the magistrate was "preferred". The Full Court was concerned with reasons given by a magistrate with respect to a charge contrary to the Road Safety (Alcohol and Drugs) Act 1970. It was concluded by the Full Court that a mere statement of a preference for one witness over another witness was not a sufficient expression of reasons for a finding that a charge has been proved beyond reasonable doubt (pars[67] and [75]). The analysis of Crawford CJ and Porter J and the cases cited reveal the rationale for requiring more than a mere statement of preference. It is only if some explanation is given can an appeal court come to terms with the issues and determine the appeal, and only if some explanation as to why a witness's evidence is preferred that a party will be able to understand why he or she has lost the case.

79 It was submitted for the defendant that the obligation to provide reasons was affected by the conclusion reached and whether it was a finding of guilty or not guilty. It was argued that a finding of guilt requires different kinds of reasons, as I understand the argument, less detailed and less extensive reasons, than a finding of not guilty. Of course, there is no argument that the obligation to consider carefully all the evidence is the same.

80 In order to provide the basis for a conclusion that the charge is not proved beyond reasonable doubt, it may not be necessary to traverse the evidence as extensively and in the same amount of detail as would be done if the conclusion was that the charge was proved. In order to expose the reasoning for a conclusion that a charge is not proved, the reasons may focus on the evidence and factual findings that bear on that conclusion. It is acknowledged that there are some differences regarding the content of the reasons that arise as a consequence of the standard of proof. However, the principles that I have referred to, set out above, regarding the nature and extent of the duty to provide adequate reasons apply with equal force to cases where the conclusion is to dismiss the charge.

81 The purpose of the reasons is the same regardless of the conclusion as to whether the charge is proved or not. The reasons must provide the parties and the appeal court with an understanding of why the magistrate or judge was left with a reasonable doubt. The prosecution is entitled to know why it has lost. Therefore, the findings of fact and reasoning that underpin the conclusion reached must be provided. The reasons ought to do justice to the issues posed by the parties' cases so that justice can be seen to be done. It can be seen from a consideration of the general principles that they nicely accommodate all cases regardless of the conclusions reached and the findings involved. The nature and extent of the duty to provide reasons expounded in these principles is not diminished or watered down because the finding is one of not guilty.

82 The question now is whether the reasons of the learned magistrate were adequate.

83 As a preliminary point I note that some aspects of the oral decision delivered by the learned magistrate are really observations about the nature of the case, the issues between the parties and matters not in dispute. They provide a framework for the reasons and are useful for that purpose but do not provide key steps in the reasoning underpinning the conclusion, or assist in understanding the basis for the conclusions reached. For example, the observation that there is some support for the defence case that there was a fight and that the defendant defended himself is an uncontroversial observation about the prosecution case. Mr Allie did not dispute that he had a fight with the defendant and that during the fight the defendant delivered blows in self-defence. The charge of assault upon Mr Allie related to the first punch delivered by the defendant before the fight commenced.

84 The learned magistrate's reasoning for concluding that self-defence had not been disproved was as follows:

•

There was some support for the defendant's version from some of the police witnesses in relation to the critical facts on each assault count.

•

He did not believe everything the defendant said in his evidence.

•

He did not completely reject the defendant's version in relation to each of the counts.

•

He did not rely on Ms Brown's evidence regarding the assaults.

85 It may be noted that the learned magistrate did not accept the defendant's evidence relating to the charge of driving whilst disqualified about driving to the service station, and he also rejected Ms Brown's evidence about driving.

86 It was submitted on behalf of the applicant that the learned magistrate merely found that there were facts that supported the defence case, that there was a fight and that the defendant had defended himself, but failed to identify those facts, and indeed failed to make findings of fact and state the evidence he believed and accepted and the evidence he rejected. Furthermore, it was submitted that the conclusion reached by the learned magistrate that he was not satisfied beyond reasonable doubt that the defendant had not acted in self-defence was not supported by findings of fact. It was submitted that the learned magistrate had failed to make findings relating to that conclusion and in particular, there was no assessment of the circumstances as the defendant believed them to be, and no assessment by the magistrate of whether the force used was reasonable.

87 The grounds of appeal relied upon by the applicant include particulars that the learned magistrate erred in failing to provide reasons for preferring the evidence of the defendant over the evidence of the prosecution witnesses when the question of credit was central to the consideration of the charges. I note that in relation to issues of the credit of witnesses it does not seem to me that the learned magistrate necessarily preferred the evidence of the defendant to the prosecution witnesses. Certainly he did not state that he did. His reasons indicate that he did not wholly reject the defendant's evidence and that he found support for the defence contention of self-defence in the prosecution case.

88 It was submitted on behalf of the defendant that the learned magistrate's reasons enable inferences to be drawn consistent with his conclusion. Further, it can be implied that some prosecution witnesses have been rejected or, if accepted, the defence case raised a reasonable doubt about the issue of self-defence. I turn to consider the reasons provided by the learned magistrate and whether they are adequate.

89 The statement made by the learned magistrate in his reasons that he did not completely reject the defendant's version in relation to each of the assault charges begs the question as to which aspects of his evidence were not rejected. That question is unanswered in the reasons.

90 One of the key reasons given by the learned magistrate supporting his conclusion is that there was some support for the defendant's version from prosecution witnesses in relation to the critical facts on each assault charge. However, the learned magistrate does not identify the supporting evidence or reveal his findings about it. Presumably, other evidence in conflict with that supporting evidence was not accepted, or not regarded as sufficiently compelling to disprove self-defence. Left unsaid is reasoning that reveals the learned magistrate's preference for that supporting evidence.

91 In short, the learned magistrate did not identify the evidence that had a bearing on his conclusion that he was left with a reasonable doubt, and he did not set out his findings or assessment of that evidence and countervailing evidence.

92 This was a case involving a significant number of witnesses, three charges, three complainants and four acts of assault. The magistrate's reasons did not separately consider each charge and did not articulate the findings of fact he made regarding each charge.

93 Furthermore, the prosecution witnesses were not separately considered. In a sense the reasons suggest the prosecution case is an undifferentiated mass of evidence so that support for the defence from some aspect of the prosecution case undermines the rest of the prosecution case. This generalised treatment of the evidence is deficient. It was open to the learned magistrate to accept some prosecution witnesses and not others, and to find the charges proved. It was open to him to accept some parts of the evidence of individual prosecution witnesses and not other parts. Presumably, the magistrate did not accept the evidence of prosecution witnesses that undermined the defence case in critical respects, or he did not find such evidence to be sufficiently compelling. If that was the case, it is not revealed in his reasons.

94 In relation to the allegation of punching Mr Allie in charge one, there was a clear issue of whether or not the defendant punched Mr Allie in self-defence as contended by the defence. There was evidence from prosecution witnesses which was at odds with the defence contention, and, which if accepted, was capable of disproving self-defence. There was evidence from prosecution witnesses that the defendant struck Mr Allie first and that other people were not helping Mr Allie at that stage. There was also evidence that the defendant punched Mr Allie again as he was going to the ground. Presumably, the learned magistrate did not accept that evidence, he remained unpersuaded of the defendant's guilt, and he held a reasonable doubt as to whether the defendant had acted in self-defence. The reasons why the magistrate was not persuaded by the prosecution evidence supporting this charge and was left with a reasonable doubt are not disclosed by him.

95 In relation to the act of hitting Mr Allie with a baseball bat alleged in charge one, there were multiple factual issues to consider. An issue was whether contact was made with the baseball bat by hitting Mr Allie to the face, or whether the defendant just brandished it about. If the learned magistrate was satisfied that the defendant intentionally struck Mr Allie with the baseball bat, there were issues as to the circumstances in which it occurred, the circumstances as the defendant believed them to be, and whether an act of hitting with a baseball bat was excessive force. The reasons do not address these issues and the parties are left to speculate about the magistrate's findings regarding these issues.

96 Furthermore, self-defence was not squarely raised by the defence in relation to charges two and three. As noted above, it was possible that the learned magistrate could have found that self-defence had been raised and not been disproved in relation to all allegations. However, this was a somewhat obscure conclusion to draw in relation to these two charges particularly, with respect to the allegation that Mrs Allie was grabbed and Ms Rebecca Allie spat upon. Divining the magistrate's reasoning for his conclusion of a reasonable doubt in relation to self-defence with regard to these charges is a matter of conjecture.

97 This was a case where resolution of the issue of credit was central to the fact finding process. There are no reasons given by the learned magistrate for the findings of credit that were presumably made.

98 In summary, the reasons for the learned magistrate concluding that he was left with a reasonable doubt as to self-defence with regard to the three charges of assault are inadequate. This is a case where the failure to make adequate findings of fact and deal with the issues in the reasons has made it difficult to determine the appeal_._ The parties could not have an understanding of why the learned magistrate was left with such a doubt. The factual findings and reasoning underpinning the learned magistrate's conclusion are not disclosed. The learned magistrate did not embark upon an assessment of the evidence or make findings about the critical factual issues in the case.

99 Insufficient reasons were provided for finding the three assault charges not proved and this ground of appeal is upheld.

100 The learned magistrate erred in law in failing to give adequate reasons for finding the three charges of assault not proved. The motion will be allowed, the dismissal of the charges set aside. It would seem that that the appropriate order is that the charges should be remitted for rehearing before another magistrate (noting that there are issues of credit involved and so the appeal court is not in as good a position to decide the matter as the learned magistrate: Pollard v RRR Corporation Pty Ltd (supra), at par[67]). I shall give the parties the opportunity to make submissions about that course and about any other orders.

Robinson v Chatters [2010] TASSC 66

At a glance

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Judgment (125 paragraphs)

Robinson v Chatters [2010] TASSC 66 (22 December 2010)

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Cases Cited (5)