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

Wood v Smith [1991] TASSC 12; Nilsson v McDonald [2009] TASSC 66, 19 Tas R 173; Fenton v Lane [2015] TASSC 61, cited.

Magistrates - Appeal and review - Tasmania - Motion to review - Other matters - Sentence - Sentence was within the reasonable exercise of the sentencing discretion of the magistrate.

Barrett v Wilson [2015] TASSC 3, 69 MVR 333, cited.

Judgment Number: [2018] TASSC 12

1. This motion concerns a complaint which charged the applicant with one count of common assault and one count of breaching a police family violence order. The charge of common assault alleged that on 12 January 2017, the applicant assaulted his then partner "by holding her down and punching her multiple times". The charge of breach of a police family violence order alleged that that act of assault constituted a breach of an extant police family violence order, which had been made approximately six months earlier and included a condition that the applicant was not to directly or indirectly threaten, harass, abuse or assault the complainant. The existence and application of the said order was not in dispute.
2. The applicant pleaded not guilty to the charges. On 10 October 2017, Magistrate S Brown, after hearing the complaint, found the charges proved. His Honour convicted the applicant of both offences and imposed a global sentence of 28 days' imprisonment. The applicant now moves this Court to review both conviction and sentence.
3. There are eight grounds contained in the notice of motion that relate to conviction. The first ground alleges that the decision of the learned magistrate is unsafe and unsatisfactory. The remaining grounds complain about specific aspects of his Honour's reasoning. On the hearing of the motion, the applicant's counsel, Mr Doyle, conceded that the test applicable to the first ground is whether "upon the evidence the magistrate might, as a reasonable person, have come to the conclusion which he did": Phillips v Arnold [2009] TASSC 43, 19 Tas R 21. Mr Doyle further conceded that the remaining seven grounds relating to conviction can only succeed if the first ground is successful. Accordingly, counsel accepted that the remaining seven grounds are, in effect, arguments that support the first ground, and are subsumed within it. The remaining ground, which relates to the sentence, simply alleges that the sentence imposed by the magistrate was, in all the circumstances, manifestly excessive.
4. The case was aptly described by counsel as "oath on oath". The complainant and the applicant each gave evidence. The complainant gave evidence that she had been assaulted by the applicant. This was denied by the applicant in an interview with police and in his testimony. The consideration of the motion, insofar as it relates to conviction, will therefore focus on the fact finding role of a magistrate in a case which depends entirely on credit.

1. The complainant's version was that the applicant had returned to their home at about 6.30pm on the relevant day. He was "really drunk, stumbling over, knocking things down, breaking things and erratic". An argument broke out between them over the applicant smoking inside the house. The complainant said that during the course of the argument, which occurred in their bedroom, the applicant "pushed me down onto the bed and hit me in the face, slapped me, pulled my arms back, like a police officer". When asked to provide further detail concerning the blows to the face, she said that he might have hit her seven times, and that the blows were with both an open hand and a closed fist. She was eventually able to leave the house. She sat in an alleyway next to the unit for a period time, and then returned to the house. She was able to remove the applicant from the house, but said that he then obtained a saw from the shed and started "attacking the front and back door to try and get back in".
2. Police subsequently attended. The complainant's evidence was that the police told her that they had found the applicant "round the road or something like that". She said the applicant did not return to the house that night, but returned at about 6.30am the next morning. He was banging on windows and screaming at her, trying to get in. She filmed his behaviour on her mobile telephone. A DVD recording of that film was admitted into evidence.
3. The complainant also claimed to have some injuries. She presented photographs which she said she took on her mobile telephone to show the injuries. I have inspected these photographs. They appear to show blood around her lip and some bruises on her arms. There are also photographs of the damage to the interior furnishings of the home, which the complainant attributed to the drunken behaviour of the applicant.
4. The applicant's version of the relevant events was explained in his evidence. He denied returning to the house in a drunken state. He said that he had worked that day between 9am and 5pm. During the course of the day, he received news of the death of a close friend. He purchased a 10 pack of Jack Daniels pre-mixed cans on his way home. He and the complainant had consumed those cans, and had both smoked marihuana. He agreed that an argument had commenced in the bedroom, and that it was to do with the marihuana that was being consumed by both the complainant and him. He said that the only physical contact between them occurred when he tried to take some marihuana from her hand, but otherwise denied that he had assaulted her in any way. He left the house shortly after the argument, visited a friend, then returned to collect his work tools. When he did, he noticed that the complainant had "started talking about self-harm". He claimed that the complainant had a history of mental health problems and he was concerned for her safety. He sent a message to her mother seeking assistance, but when he had no reply, he "rang 000 asking for medical assistance". The police arrived shortly after.
5. The applicant told the police that things had calmed down and they were not required. He said he did this because he was concerned that the police would arrest the complainant. He agreed that the police had asked him to leave the house. He had complied with this request.
6. The two police officers who attended the premises each gave oral testimony. The evidence of each corroborated that of the other. The salient points from the evidence of the police officers are as follows:
   • Police attended as a result of a call from the applicant. The call was made at 12.10 and alleged that there was "a mentally disturbed person" at the premises.
   • When the police arrived the applicant answered the door. He told them that they were no longer required.
   • During their interaction with the applicant, he was becoming increasingly agitated and aggressive. The complainant was also there but she was "more submissive".
   • Police asked the applicant to leave the premises. After the applicant had gone, the complainant pointed out damage to the premises, including a smashed pot plant. She also alleged that there had been an argument between them, which had become a physical struggle in the bedroom, in relation to the possession of marihuana. During the argument, the applicant had pushed the complainant onto the bed, held her down and punched her twice. The police were not completely consistent with respect to the complainant's statement to them as to where the blows had landed. Constable Cooper said "to the face area" in evidence-in-chief, but agreed in his statutory declaration that he had said it was to the "back of the head/neck area". Constable Marshall said that the complainant had told them that the applicant had "punched her twice to the back of the head".
   • The police confirmed their observation of some damage to the premises. One of the officers had taken a photo of damage to the door frame, but the photo was not available at the time of the hearing.
   • During cross-examination, the applicant's counsel asked both police officers whether they had seen any injuries on the complainant. Both answered by stating that they did not see or observe any injuries.
   • Both officers said that the complainant told them she had been drinking during the night, but did not appear to be intoxicated when she spoke to them.

1. The magistrate provided his decision with reasons ex tempore. He summarised the evidence in some detail. He found the complainant "to be an unsophisticated but relatively impressive witness". He considered her evidence to be internally consistent and observed that she was really "unmoved" as to "her version of events in any meaningful way". This is clearly a reference to his Honour's impression of the complainant's testimony after cross-examination. The magistrate noted that the complainant told the attending police about the assault as soon as the applicant had left the house, and that the observation by police of the condition of the premises was consistent with the complainant's version. His Honour considered the evidence concerning the alleged injuries to the complainant in some detail, expressly noting the evidence of the police officers that they had not seen injury on her. The magistrate discussed the photographs, accepted that they were taken as stated by the complainant, and concluded that "whilst they don't show terrific injuries ... they are certainly consistent with her version of events ...". On the other hand he said that he found the applicant to be "frankly a most unimpressive witness". He stated that he had "no confidence whatsoever in the reliability of his account of events". The magistrate noted the photographs of the damage to the premises which he considered to be supportive of the complainant's version. His ultimate conclusion is summarised in the following passage:

"I accept her version. I do not accept his version. It's not a case of me preferring one over the other and therefore finding this proved. I reject his version. I believe it to be completely unreliable. Her version of events was internally consistent. I found her to be impressive. Her evidence is corroborated by the complaint she made at the time to police and the existence of photographs. At the end of the day there was a drunken argument between these two people. In my view I'm satisfied that the defendant became physical and assaulted the complainant. It's as long and short as that and I am satisfied to the standard I must be that the matter occurred essentially as [the complainant] said."

1. Mr Doyle attacks the magistrate's reasoning in a number of respects. His primary submission is that the magistrate's assessment of the complainant as reliable and the applicant as unreliable, is inconsistent with the objective evidence. He submits that, in a number of respects, the evidence supports the applicant's version and establishes the applicant as a reliable and credible witness. Some examples are as follows:
   • The police officers did not see any injuries on the complainant. Counsel argues that if the complainant had been punched to the face, one would expect to see facial injuries. Although the police were not asked as to whether they had made a detailed examination, or were looking for injuries, Mr Doyle submits that it can be inferred that the police would have been looking for evidence to corroborate the version being given by the complainant and would have seen, recorded and testified as to the injuries had they existed.
   • The applicant's actions in ringing the complainant's mother and calling the police is consistent with his assertion that the complainant was exhibiting mental health issues. Counsel asserted that the complainant has a demonstrated history of mental health concerns.
   • There were inconsistencies between what the complainant had told the police and what she said in court. These included:
     • She told the police that she had been punched twice to the back of the head. In court she said that she was struck to the face seven times, and the blows may have included slaps as well as punches.
     • According to counsel, the complainant denied in evidence that she had consumed alcohol during the evening. However, the police officers said that she told them that she had been drinking alcohol.
2. Mr Doyle claimed that the magistrate should not have regarded the photographs as corroborative of the complainant's version, as they could have been contrived by her, at any time after the incident. He also criticised a comment by the magistrate to the effect that the applicant had showed aggression and anger during the course of his evidence. The magistrate considered that his observation of these emotions was "consistent with the complainant's assertion about his response when she grabbed the cannabis from him in the bedroom". Counsel argued that the magistrate was, in effect, engaging in impermissible propensity reasoning, by inferring that if the applicant showed anger during his evidence, it was more likely that he had done so during the relevant events and that this tended to support the veracity of the complainant's version.
3. On the other hand, Mr Doyle conceded that the applicant was not able, on his version, to adequately explain the damage to the house that had been seen by the police officers, and, in particular the broken pot plant.

1. It is well settled that a motion of this nature is not to be treated as an appeal by way of rehearing. The question is "whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion which he or she did": Phillips v Arnold (above). Accordingly, it is not for the judge conducting the review "to weigh the evidence and reach his or her own conclusions". Nilsson v McDonald [2009] TASSC 66, 19 Tas R 173, per Blow J (as he then was) at [59].
2. In cases which depend upon the magistrate's assessment of the credit of witnesses, and his or her acceptance of their evidence, the Court must pay due regard to the advantage which the magistrate has of observing the witnesses. In Wood v Smith [1991] TASSC 12, Crawford J (as he then was) said:

"26 But having come to that conclusion, I then turned to the reasons of the learned magistrate and in particular the passage I have cited from those reasons in which he stated that he had 'absolutely no hesitation' in concluding that he believed the respondent and that she 'was a particularly impressive witness who convinced me that she told the truth as she knew it, and I have no reason to think she was mistaken'. The question for this court on an application to review a magistrate's decision on the facts is whether, as a reasonable man, he might have come to the conclusion to which he did: Taylor v Armour and Co Pty Ltd [1962] Vic Rp 48; (1962) VR 346 at 351; Bedelph v Weedon [1963] TASStRp 9; [1963] Tas SR 69 at 81; Benson v Rogers [1966] TASStRp 13; [1966] Tas SR 97 at 99; Richardson v Shipp [1970] TASStRp 6; [1970] Tas SR 105 at 117. To adopt the words of Burbury CJ in Richardson v Shipp at p 119 it was for the magistrate 'and not for this appellate court to determine what evidence should be accepted and what weight should be given to it'. The learned magistrate had all the advantages of observing the witnesses and of coming to a decision whether or not he found them convincing. I am at a considerable disadvantage in that regard. In these circumstances I do not feel able to conclude that the decision of the learned magistrate was not one to which, as a reasonable man, he should have come. Accordingly, the application will be dismissed.

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

1. In Phillips v Arnold, Crawford CJ, pointed out that the comment at [27] of Wood v Smith "was based on experience and reflection but, of course, was not a statement of principle".
2. Phillips v Arnold was a case concerning the review of a magistrate's decision which had turned on the magistrate's acceptance of the testimony of prosecution witnesses in preference to the evidence of the defendant. It was essentially a case about the adequacy of reasons. The magistrate had simply explained his acceptance of the testimony of prosecution witnesses on the basis that he preferred their evidence to that of the defendant. The Full Court determined that the motion to review should be upheld on the basis that simply to state that evidence of the prosecution witnesses was preferred to that of the defendant, without explaining why that conclusion has been reached, did not fulfil the obligation to explain why the magistrate had been satisfied of guilt beyond reasonable doubt. Porter J, who agreed generally with the reasons of Crawford CJ, considered that in a criminal case which depends entirely on credit, in respect of a finding of guilt, it is not sufficient for a magistrate to explain why the prosecution evidence has been accepted, but it is also necessary to explain why the exculpatory evidence of the defendant has been rejected, beyond reasonable doubt. This view would seem to be consistent with the type of direction given to a jury in a typical "oath on oath" case as explained in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507. However, although the appeal was upheld on the basis of the adequacy of reasons, the ground which asserted that the decision of the magistrate was not reasonably open was unanimously rejected, on the basis that the test did not involve the court of review rehearing the matter, but simply determining whether the conclusion was open to the magistrate, "as a reasonable person".
3. In this case, on an assessment of all of the evidence, the applicant cannot demonstrate that the decision reached by the magistrate was not reasonably open to him, in the sense that he could not, as a reasonable person, have come to the conclusion of guilt. The finding of guilt depended entirely upon the magistrate accepting the version of the complainant, at least as to the relevant events in the bedroom, as reliable and accurate. By necessary implication, this involved a rejection of the version provided by the applicant. The magistrate was clearly entitled to believe the evidence of the complainant and reject the evidence of the applicant. It is trite to point out that his Honour had the benefit of observing the witnesses, and making judgments about credibility and reliability. It is true that there were some aspects of the applicant's evidence which were consistent with the evidence of the police. In particular, it can be accepted that the applicant had called police and did so purportedly because of his allegation that the complainant was exhibiting mental health concerns. Further, when police arrived, he answered the door, whereas the complainant had said that police found him in the street. It is also true to say that the police answered the question in cross-examination by stating that they had not observed any injuries on the complainant.
4. However, there were also several aspects of the evidence upon which the magistrate was entitled to rely as supportive of the complainant's version. The existence of the damage within the house was important corroborative evidence. The immediate complaint made by the complainant to the police was also a matter which the magistrate was entitled to regard as supporting the consistency of the complainant's version. The complainant had taken photographs of injuries. While these may have provided only limited support, they were consistent with the complainant's version. I do not regard the evidence of the police officers, that they did not observe any injuries, as carrying significant probative weight. There was no examination of the police about the extent to which they were looking for injuries or had examined the complainant. There was no evidence of the state of the injuries, in particular the cut lip, at the time the police were present. I would not regard it as particularly exceptional that police may not have been concerned at the time of this visit with matters of forensic importance, such as making and recording observations for later use in court.
5. The other asserted inconsistencies relied on by Mr Doyle were either of little consequence or equivocal. The applicant's assertions concerning the complainant's mental health on the night in question were self-serving allegations, and capable of being regarded as a matter of partisan perception. A fair reading of the whole of the complainant's evidence suggests that she did not deny drinking alcohol on the night in question, but did deny being "drunk" when the police were there. This is not inconsistent with the evidence of the police officers. Although the complainant asserted that the applicant was not present when the police first arrived, contrary to the evidence of the police officers, it is true that the police did actually find the applicant away from the house on their second visit.
6. Ultimately, his Honour, as a fact finder, was entitled to believe the complainant and reject the veracity and reliability of the applicant. He was entitled to do so, notwithstanding that some of the detail in the complainant's evidence may not have been consistent with the evidence of other witnesses or prior statements made by her. The weight to be attributed to such aspects of the complainant's evidence was a matter for the magistrate. It is well within the experience of the courts that witnesses can be mistaken or inaccurate on matters of detail and recall, but credible and reliable with respect to the crucial aspects of their evidence. In this case, having regard to all of the evidence, it cannot be concluded that his Honour's satisfaction of guilt beyond reasonable doubt was not reasonably open to him. There is no merit in ground 1.
7. Further, although the grounds of review do not specifically raise the question of the adequacy of his Honour's reasons for his conclusion, it is clear from the reasons which were given, that the magistrate was well aware that he was required to be satisfied beyond reasonable doubt of the guilt of the applicant before he could find the charges proved, and this required him to accept the version of the complainant and reject the version of the applicant, and be able to do so beyond reasonable doubt. His Honour specifically referred to this requirement, which included an express acknowledgement that it was inadequate for him to simply prefer the evidence of the complainant over the applicant.
8. The magistrate, in my view, also provided adequate reasons for his acceptance of the complainant's version and rejection of that of the applicant. There is no doubt that his Honour took into account the demeanour of the complainant and the applicant during the course of their testimony. He found the complainant to be "impressive", and the applicant to have given evidence that "was frankly glib and rehearsed". He considered the applicant to be "a most unimpressive witness". There have been judicial comments which have emphasised the need for a fact-finding court to exercise care in assessing demeanour, and in the use made of findings about demeanour in determining facts in issue. See, for example, Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187. However, a magistrate, who in effect fulfils the role of a jury in determining questions of fact, is clearly entitled to take into account the demeanour of a witness in discharging that function. This must be consistent with the determination of criminal charges by a hearing process which involves oral testimony and cross-examination. Further, a finding that a witness's evidence has been "impressive" or "unimpressive" will generally convey an impression gained from an assessment of "not just their demeanour but the content of their evidence, and would include matters such as internal consistency and the accuracy of their evidence": Fenton v Lane [2015] TASSC 61 at [52]. This observation is consistent with the context in which his Honour used those words in this case, which was in the course of a wider discussion of the evidence.
9. As already noted, Mr Doyle submitted that the magistrate erred in the use he made of the anger and aggression he perceived on the part of the applicant during his evidence. Mr Doyle characterised this reasoning as "impermissible tendency reasoning". He did not assert that the reasoning had involved inadmissible evidence, but rather that his Honour had placed too much weight on demeanour, and linked the demeanour in the witness box illogically to his assessment of the truth and accuracy of the applicant's version.
10. It would, of course, be illogical to reason that simply because someone demonstrates anger during the course of giving evidence, that that person must have reacted with anger in completely different circumstances, for example, during a domestic argument. However, a fair reading of his Honour's comments would reveal that he did not reason in this way. It is apparent that his Honour was simply making the point that the anger demonstrated by the applicant was "consistent" with the complainant's assertion about the applicant's response during the argument. In other words, his Honour seems to be saying that the anger manifested in front of him by the applicant, enabled him to better understand the evidence which had been given by the complainant about the relevant reaction. This is a subtle but important difference in reasoning and does not demonstrate error. In any event, the comment was a component of a larger complex of reasoning which led his Honour to accept the evidence of the complainant.
11. The magistrate's finding of guilt in respect of both charges was reasonably open on the evidence. It follows that the motion, insofar as it concerns the finding of guilt, must fail.

1. For the purpose of determining the factual basis of sentence, his Honour proceeded on the basis that there had been no more than two blows. In doing so, he relied on the complainant's statement to police. His Honour indicated that although he might have suspicions about the number of blows "and whether there were slaps as well", he would be falling into error to find that there were any more than two blows.
2. In relation to the applicant's personal circumstances, the magistrate was told that the applicant was unemployed. Counsel for the applicant also relied upon the applicant's evidence as to his circumstances, which included a problem with the consumption of alcohol. At the time of sentencing, the applicant was 36 years of age. He had a lengthy record of offending. This record included some convictions for matters involving violence. In 2008, the applicant had been sentenced to imprisonment for an aggravated assault. In 2010, he was convicted of assaulting a police officer, and in 2014 of breaching a police family violence order. There were numerous convictions for alcohol-related offending and other examples of breaching court orders, including by driving whilst disqualified.
3. The magistrate discussed this record in some detail. His Honour noted that there had been "a gap in his violent offending for six or seven years". The magistrate commented that "The assault here was not at the top level of seriousness but it is a serious one. It is a family violence matter and family violence is a significant social problem." His Honour noted that he had formed the view that "... the only appropriate sentence is a sentence of imprisonment, albeit in my view a relatively brief one to take into account the matters that Mr Doyle has raised". The applicant was convicted and sentenced to 28 days' imprisonment.
4. Once again, the appropriate consideration for me on this review is whether the sentence was within a reasonable exercise of discretion on the part of the magistrate. It is not a matter of determining what sentence I would have imposed in similar circumstances. The question is whether the sentence was reasonably open to the magistrate. It is only where error in sentencing is plainly apparent because of manifest excess, that the ground asserted in the notice to review can succeed. Barrett v Wilson [2015] TASSC 3, 69 MVR 333.
5. His Honour was correct to take into account that the assault was aggravated by the fact that it occurred in breach of a family violence order. The applicant, of course, was not to be punished twice for the same act. However, by assaulting the complainant in breach of the order, his conduct was appropriately considered in a more serious light. It is clear also that a sentence of personal deterrence was appropriate, given the applicant's record. Finally, he was not able to make any claim in respect of remorse, or rely on a plea of guilty.
6. Mr Doyle did not assert that a sentence of imprisonment was not appropriate in the circumstances. However, he submitted that manifest excess was demonstrated by the failure to suspend the sentence. I am unable to agree with this submission. The assault involved a brutal attack to the head of the complainant. It occurred in her home and was a serious example of family violence. As with any violence perpetrated during the course of a domestic argument, such conduct was personally demeaning and represented a breach of the trust inherent in the personal relationship which existed between the parties. Although the assault did not cause lasting injury, it did cause some physical injury. There was nothing which mitigated the seriousness of the applicant's conduct.
7. In all of the circumstances, I am not satisfied that the sentence imposed was outside the ambit of the reasonable exercise of the sentencing discretion of the magistrate. There is no merit in this ground.
8. As none of the grounds have been made out, the motion will be dismissed.*