CWDS Peace complaint - appeal against order made pursuant to s.99 Justices Act, 1921 binding appellant over to keep the peace - procedure to be adopted at original hearing and on review of order - allegation of apparent bias on part of magistrate - The Queen v. Watson ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 and Vakauta v. Kelly [1989] HCA 44; 87 ALR 633 referred to - various findings of fact disputed - appeal dismissed.

HRNG ADELAIDE, 9-10 April 1991 #DATE 10:5:1991 Counsel for the Appellant: Mr J. Pearce Solicitors for the Appellant: W.A.G. Morris Pearce and

Associates Counsel for the Respondent: Mr A. Wainwright Solicitors for the Respondent: Mr B.M. Selway Crown Solicitor

JUDGE1 DUGGAN J Two orders were made by a magistrate pursuant to s.99 of the Justices Act, 1921 imposing certain restraints upon the appellant in relation to his conduct towards and contact with his wife who is referred to throughout the proceedings as Miss Claridge. The orders were made ex parte and in due course the appellant was summoned before the court to show cause why those orders should not be confirmed. He appeared at the subsequent hearing and was represented by counsel. Miss Claridge and the appellant gave evidence at this hearing and the appellant called another witness. At the conclusion of the hearing the learned magistrate confirmed the restraint orders. The appellant now appeals against the orders on a number of grounds. 2. Most of the grounds challenge the learned magistrate's findings of fact and it is necessary, therefore, to refer to some of the history of the matter. The appellant and Miss Claridge have known each other since 1986 when they commenced living together. They married in January 1989 but separated in June of that year. On 28th June, 1990 Miss Claridge made a statement to the police complaining of the appellant's conduct towards her, particularly over the four months preceding the making of the statement. The complaints which she made were repeated in detail at the confirmation hearing and the learned magistrate found that between 1st March, 1990 and 29th June, 1990 the appellant continually harassed his wife and behaved offensively towards her. These findings were based upon the magistrate's acceptance of Miss Claridge's evidence that during the relevant period the appellant approached her as often as four or five times a week outside her place of employment attempting to speak to her. The magistrate also found that the appellant telephoned Miss Claridge at her place of employment about twenty times per week. Furthermore, he found that on 7th June, 1990 the appellant telephoned Miss Claridge and threatened her with physical violence. In making this finding the magistrate said: "I am unclear as to his precise words, but it was to the effect of he would kill her or break her neck or something of the sort." 3. It was not disputed by counsel for the appellant that if these allegations were correct, the restraint orders should have been made. However, the appellant denied the allegations strongly and the debate focused upon the credibility of the appellant and Miss Claridge. The learned magistrate had this to say about the appellant and his evidence: "The defendant himself gave evidence in this case. There are a number of matters in which there was considerable agreement between the parties and I accept the defendant's evidence about those matters. The defendant is employed as a private investigator. As to the critical matters, I have already mentioned that he denied them in the witness box. He said that he had no contact with Miss Claridge between March and June. He said the only telephone call that he made occurred on 5th June, 1990 from his place of employment and during that telephone conversation it was in fact Miss Claridge that abused him and not the other way round. He gave evidence that that telephone call was overheard by a director of the firm, Chris

Harders. Chris Harders gave evidence that he can recall a telephone call several months ago. He was unable to say exactly when, but agrees it could have been early June. The defendant held the receiver out from his ear and gestured in despair and indicated that it was his wife. The witness could hear a female voice coming over the telephone and it appeared to be a loud voice. As to Mr Harders, I accept that he did see and hear such a telephone call. However, I find that Mr Harders could not accurately recall the date and I could have no confidence in his ability to recall it was on the 5th June, 1990. In addition to that I do not believe the defendant when he said that was the only telephone call he made. It was clearly not the telephone call in which he threatened his wife and I make the observation he was unlikely to make such a telephone call in front of his employer. In making the findings that I do it is not so much that the defendant in the witness box went back on his evidence in cross-examination. His demeanour played a small part in my decision, but it was certainly by no means conclusive. Sergeant Rees in his address made comments which accorded with my own observations that the defendant certainly at times looked, for want of a better term, 'uncomfortable' in the witness box. I certainly found it difficult to believe that in late November, early December, he was jealous and wanting the relationship to resume and that he simply accepted that it was at an end in early January, after a brief conversation on the way to Woolworths. However, my findings ultimately rest on the fact that having heard Miss Claridge I believe she was telling me the truth." 4. Elsewhere in his reasons for judgment the learned magistrate stated that he found Miss Claridge to be a truthful witness and that he preferred her evidence to that of the appellant on matters which were in dispute. 5. Before dealing with the grounds of appeal it is appropriate to make some observations about the procedure to be followed in the event of an application for an order of this nature. Insofar as it is relevant to this appeal s.99 of the Act provides as follows: "(1) Where, upon a complaint made in accordance with subsection (2), a court of summary jurisdiction is satisfied on the balance of probabilities- (a) that- (i) the defendant has caused personal injury, or damage to property; and (ii) that the defendant is, unless restrained, likely again to cause personal injury or damage to property; (b) that- (i) the defendant has threatened to cause personal injury or damage to property; and (ii) the defendant is, unless restrained, likely to carry out that threat; or (c) that- (i) the defendant has behaved in a provocative or offensive manner; (ii) the behaviour is such as is likely to lead to a breach of the peace; and (iii) the defendant is, unless restrained, likely again to behave in the same or a similar manner, the court may make an order imposing such restraints upon the defendant as are necessary or desirable to prevent him from acting in the apprehended manner. (2) A complaint under this section may be made- (a) by a member of the police force; or (b) by a person against whom, or against whose property, the behaviour that forms the subject matter of the complaint was directed. (3) An order under this section may be made in the absence of the defendant if the defendant was summoned to appear at the hearing of the complaint and failed to appear in obedience to the summons. (4) An order under this section may be made in the absence of the defendant and notwithstanding that he was not summoned to appear at the hearing of the complaint, but in that case the court shall

summon the defendant to appear before the court to show cause why the order should not be confirmed and the order shall not be effective after the conclusion of the hearing to which the defendant is summoned unless the defendant does not appear at that hearing in obedience to the summons or the court having considered the evidence of the defendant and any other evidence adduced by him confirms the

order." 6. The power to bind a person over to keep the peace is of ancient origin and was derived originally from both Common Law and statute (Justices of the Peace Act, 1361 (U.K.)). The procedure is not a punishment but is aimed at preventing the apprehended danger of a breach of the peace. However, an order under the section may operate as a restriction on the right of an individual to pursue otherwise lawful activities as well as requiring compliance with the law and a breach of the order is an offence in itself which is punishable with imprisonment for a term not exceeding six months. For these reasons an order of this type is not to be made lightly. 7. I should also say something about the procedure at first instance for the hearing of a complaint made under the section. A restraint order is not to be made in the first place unless the matters referred to in subsection (1) are established by the complainant on the balance of probabilities. If the defendant is not summoned to appear at the hearing of the complaint and a restraint order is made in his absence he must be summoned to show cause why the order should not be confirmed. Although subsection (4) requires the defendant to show cause, I agree with the learned magistrate's view that at the confirmation proceedings, if the making of the order is challenged, the court should consider whether there is evidence available to establish the necessary preconditions referred to in subsection (1) on the balance of probabilities. If there was no such evidence available at any time then the order should not have been made in the first place and should not be confirmed. Ground 1. 8. The first ground of appeal complains that the learned magistrate acted in such a way as to give rise to concern that he was biased against the appellant. Mr Pearce for the appellant made it clear that he was not alleging actual bias, but rather apparent bias. It is necessary, therefore, to consider whether in all the circumstances, "the parties or the public might reasonably suspect that he (the learned magistrate) was not unprejudiced and impartial" (The Queen v. Watson ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at p 262). 9. Mr Pearce argued that the appearance of bias resulted from a combination of circumstances which began with an enquiry of Mr Pearce by the learned magistrate shortly after the matter was called on as to whether the appellant was aware that if he were unsuccessful in his application he may have to pay costs. After being told that the appellant was aware of that consideration, it would appear that the magistrate then said to Mr Pearce that he had dealt with a large number of restraint applications and that in many of them he had been of the view that there should be a restraint order. Mr Pearce was quick to remind the magistrate of the comments of Johnston J in Brunsgard v. Daire (1984) 36 SASR 391 concerning the serious nature of such applications and he then gave an account of his own experience of acting for clients he had successfully defended against applications of this type and of other cases where litigants in the Family Court had been placed at a disadvantage by having restraint orders made against them by consent in earlier proceedings in Magistrate's Courts. The learned magistrate referred to this exchange in his reasons for judgment. The relevant passage is lengthy but I am of the view that it should be quoted in full because it contains his explanation for what is now alleged to be part of material disclosing apparent bias. He said: "Before turning to what is essentially issues of credit and fact there are certain preliminary matters which arose in this case which I should make some comments about. Counsel, Mr Pearce, on several occasions during this case expressed to me some concerns about the impact of this legislation. He was critical of the way in which cases could easily be brought against an individual ex parte and yet the subsequent orders could ultimately have quite a serious impact upon certain defendants. They could, for instance, be used to unfair advantage in the Family Court. People made the subject of the orders could be arrested by police officers. In making these comments Mr Pearce also expressed some general concern that Magistrates may not be taking the disputes about them seriously enough. Whilst I did not write down the exact words Mr Pearce used, my understanding was that he was concerned that Magistrates tended to take the view that whatever may be the rights and wrongs of the evidence, and the concerns raised by defendants, it was nevertheless a good thing that orders continue just for the sake of keeping

parties apart. It was apparently with those concerns in mind that he queried one or two remarks I made before any evidence was taken, and also whether there was any hidden significance in some questions I asked the defendant during cross-examination. Mr Pearce was quite bold in some respects in his criticism of the legislation and his concerns expressed to me about the approach of the Magistracy and also the queries directed to me, but it may be that his views arise from his own experiences as counsel involved in successful appeals from Magistrates' decisions to the Supreme Court. I trust that the reassurances I gave Mr Pearce about my own views on restraint orders were sufficient to reassure him, but as the whole issue and the way

it was put was somewhat unusual I propose to record some of my views in this judgment. It is not my experience (nor do I believe having seen many restraint order files), that of my colleagues, that any particular view is taken of restraint orders. Magistrates' views vary so widely that, as you would expect, much must depend upon the circumstances. The only overall view, certainly held by myself and I believe by my colleagues, is that the legislation is very important and that the people who come before the court should be carefully listened to. Often members of the public seeking restraint orders are the potential victims of serious violence, and their request for court ordered protection always deserves the most serious consideration.

It is, of course, often a request by women for protection against violent men, but not always. This does not mean that always ex parte orders are readily made. I personally have the practice of asking a number of questions searching out information beyond the typed transcript that is tendered to me. I have often made amendments to the complaint that has been placed before me. It is certainly by no means the case that all applications for restraint orders are granted ex parte. When it comes to a dispute I, and I am sure my colleagues, are mindful of the fact that the person coming before the court on summons has not had any say up until that stage in the proceedings. There is again in my view no common approach or practice by Magistrates. Many of the restraint orders are, of course, confirmed. It is only sometimes that there is a factual dispute, such as has occurred in this case. On other occasions the defendant is happy enough for a restraint order to be confirmed, but expresses some concerns about the terms of the actual order made because of practical problems it may cause. Magistrates attempt to deal with those sorts of problems as best they can. Magistrates by no means always confirm restraint orders that have already been made although, as one would expect, a great majority of them are confirmed ultimately either by consent or by a hearing. There is one difficulty, however, that Magistrates often do face at disputed restraint order hearings. Sometimes defendants are angry about the fact that another party, often a wife or girlfriend, has gone behind their back and obtained orders without the defendant having any say in the matter. That is perfectly understandable. Also a tendency to have angry or irrational defendants coming before the courts on restraint order matters is quite high because they are often only sought in cases where there is a history of serious conflict between two persons which has an actual or potential violent component to it. It is against this backdrop that Magistrates sometimes receive a request to embark upon a hearing which, before the dust has settled, occupies days of hearing time. It has been my experience that such hearings have not always been so much concerned to show cause why a restraint order should not be confirmed, but simply to allow the other party to air his own views about what happened. After all the details of acrimony and conflict have been gone into the Magistrate is left simply with an overwhelming view that the restraint order is and always was necessary. Worse still, by the time the two parties have finished fighting it out in the court room, the situation has only got worse. I make these comments on the basis of many years of issuing restraint orders and hearing contested cases, including some three years in Whyalla where I dealt with some 40% of restraint orders issued outside the metropolitan area. It is with those concerns in mind (which often involve an enormous waste of court time and legal resources), that I generally enquire of the defendant if he is unrepresented or of counsel if he is, about whether enough thought has gone into whether the restraint order should actually be disputed. I normally mention that often by the time a Magistrate

has heard of the extent of the conflict between the parties, if there is a serious conflict he will be even more convinced that a restraint order is necessary. I also normally enquire about whether they fully understand the time and cost that could be involved in launching into litigation. I do not and did not as Mr Pearce contended, on this occasion tell him that eight out of ten restraint orders are normally confirmed, because that is not the sort of phraseology I use, nor is it my own settled view of the matter. However, I did make remarks directed to the topics I have just referred to. In this particular case Mr Pearce assured me that there were good reasons why his client wished to dispute the matter and I then turned to Sergeant Rees and invited him to call evidence and prove the ongoing justification for the order." 10. During the hearing of the appeal Mr Pearce explained that he was not suggesting the learned magistrate's comments at the commencement of the matter were of themselves sufficient to support the allegation of apparent bias. But it was said they contributed to that impression. In my view the preliminary remarks by the learned magistrate should not have been made. The appellant was represented and there was no need to make the comments which were made on the topic of costs. Furthermore the reference to the outcome of other cases was irrelevant and unnecessary. It also precipitated an anecdotal exchange which was just as irrelevant. On the other hand, I agree that Mr Pearce's concession was properly made. By themselves the magistrate's comments fell short of creating the impression that he was other than impartial. However, I disagree with Mr Pearce's submission that further incidents to which he directed my attention combined with this initial episode to support a case of apparent bias. First, counsel referred to certain passages in the evidence where the magistrate asked a series of questions of the appellant. It could not be said that these passages supported the conclusion that the magistrate had "descended into the dust of the arena". The passages were not long and the questions were quite pertinent to his Honour's task of assessing the evidence and, in particular, the credibility of the witnesses. When assessed in the light of the considerations referred to by Cox J in Higgins v. Marsh (1981) 96 LSJS 494 the magistrate's interventions cannot be criticized. 11. Counsel then drew my attention to passages in the reasons for decision which, according to him, gave the appearance of bias. It is a matter of some relevance in this case that counsel for the appellant did not make any application to the learned magistrate to disqualify himself from the hearing at any stage but I agree with Mr Pearce that comments made in a reserved judgment may be relevant to the question of bias. As the majority of the High Court held in Vakauta v. Kelly [1989] HCA 44; 87 ALR 633 at p 636 the failure to object to comments made in the course of a trial cannot properly be seen as a waiver of any right to complain if comments in the judgment itself "would, in the context of those earlier comments, have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer". In some of the passages complained of the learned magistrate referred to his experience of the behaviour of parties in other cases. At one point he said, "it is not unusual in these types of cases for a man doing what the defendant was doing to adopt a high moral tone in correspondence and to fail to refer to his own behaviour". In another part of his reasons he said: "I do not know why the brother was not called. I have noticed part of the difficulty with witnesses in this type of case lies in the way proceedings for a restraint order commence. Restraint orders relate to personal problems and often only the victim provides police with initial evidence for an ex parte order. Sometimes there is a reluctance to involve other family members. In this case I have heard evidence that Miss Claridge's brother was starting to lose patience over the whole thing and the way it was affecting his business. Often a police prosecutor only calls the witness who gave evidence at the ex parte hearing. In short, on a restraint order dispute there are often reasons why not all potential witnesses are called to give evidence." 12. In discussing the existence or otherwise of any motive for Miss Claridge to make up the allegations the magistrate said: "A man may be the subject of false accusations from his wife and not know the reasons. Sometimes I have found that defendants can supply a reason which is entirely plausible." The other matters which Mr Pearce raised are included in the long passage from the magistrate's reasons which I have set out earlier in this judgment. 13. In my view the comments concerning what might have been the position in other cases should not have been made. They were irrelevant to the task facing the magistrate in the case before him. It is trite to say that an application such as the one before the magistrate fell to be decided on its own merits. However, after reading the whole of the reasons for decision, I am satisfied that, despite the magistrate's observations about other cases, the conclusions which he reached were based solely on the evidence before him. Furthermore, I am convinced that these statements and the other comments relied upon by the appellant, when taken in their entirety, do not bring the case within the test for apparent bias referred to in the authorities which I have discussed. In assessing the impact of statements and interventions by the magistrate during the hearing and before judgment, it is not without significance that counsel, who was obviously sensitive to this issue from the commencement of the proceedings, made no application to the learned magistrate to disqualify himself. In Vakauta v. Kelly the majority of the court said (p.635): "Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong

if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her." 14. I have read the case of Government Insurance Office of New South Wales v. Glasscock (Court of Appeal (N.S.W.) 19th February, 1991) which Mr Pearce forwarded to me after the hearing of the appeal but the questioning of the trial judge which the majority of the court found to be excessive and giving the appearance of bias went far beyond what is complained of in the present case. 15. For these reasons this ground of appeal must fail. Ground 2 16. This ground complains that the learned magistrate failed to draw an inference adverse to the complainant's case for his failure to call any corroborative evidence of Miss Claridge's version. In particular no adverse inference was drawn by reason of the failure to call her brother. The learned magistrate dealt with this matter comprehensively in the following passage in his reasons: "Mr Pearce criticised the complainant for not calling Miss Claridge's brother to give evidence. He asked me to more readily infer the defendant was telling me the truth. In evidence this principle is often referred to as "the rule in Jones v. Dunkel" ((1959) [1959] HCA 8; 101 CLR 298). The court may (not must) infer the uncalled evidence would not have assisted that party's case (Forrest v. Normandale 5 SASR 524 at 545). I agree it was preferable that Miss Claridge call her brother to give evidence. There was a suggestion in evidence he could have corroborated her evidence at least about the frequency of the phone calls and her general edgy condition. However, the inference is only an aid in assessing evidence and having seen Miss Claridge give evidence I choose not to make that inference. I do not know why the brother was not called. I have noticed part of the difficulty with witnesses in this type of case lies in the way proceedings for a restraint order commence. Restraint orders relate to personal problems and often only the victim provides police with initial evidence from an ex-parte order. Sometimes there is a reluctance to involve other family members. In this case I have heard evidence Miss Claridge's brother was starting to lose patience over the whole thing and the way it was affecting his business. Often a police prosecutor only calls the witness who gave evidence at the ex-parte hearing. In short, on a restraint order dispute there are often reasons why not all potential witnesses are called to give evidence. Also, it was open to the defendant to call the brother. Whilst the brother was more in Miss

Claridge's camp than the defendant's, that was not entirely so. I heard evidence the defendant had worked in the brother's business. He presumably knew him and his whereabouts. He knew from Miss Claridge's evidence what the allegations were before he was called on to show cause. There is no property in a witness and the defence could equally have summoned the brother to the courtroom. I decline to make a Jones v. Dunkel inference." Miss Claridge was not asked why her brother was not called and so the matter was left to speculation. In these circumstances it was open to the learned magistrate to find that there could have been various reasons why the brother was not called. I can find nothing in the magistrate's remarks on this aspect to indicate that he erred in principle in dealing with the submission which had been made. Grounds 3 and 16 17. When tracing the history of the relationship prior to the events between March and June 1990 which form the basis of the application for a restraint order, the learned magistrate referred to the extent of contact made between the appellant and Miss Claridge in the latter part of 1989 and the early part of 1990. Later his Honour made the following observation: "I certainly found it difficult to believe that in late November, early December, he was jealous and wanting the relationship to resume and that he simply accepted that it was at an end in early January, after a brief conversation on the way to Woolworths." According to Mr Pearce there was another meeting between the two in the relevant period which the Magistrate overlooked and counsel for the respondent agreed that it had been overlooked. Mr Pearce argued that there was also contact over the telephone and that the acceptance by the appellant that the relationship was at an end did not come as abruptly as his Honour said it did. After considering the evidence I am satisfied that the additional contact referred to by Mr Pearce is not of very great significance, but in any event the remarks on this aspect were made by the learned Magistrate in passing. Immediately after making them he said "However, my findings ultimately rest on the fact that having heard Ms. Claridge I believe she was telling the truth". Ground 5 and 13 18. In the course of his reasons the learned magistrate commented: "The defendant was denying anything had constituted a problem between the parties and yet here was his wife going to court seeking a restraint order against him and making all manner of detailed allegations." Mr Pearce criticised the reference to the appellant denying that anything was wrong. Counsel said that at the time referred to by the learned magistrate the parties were disputing the division of property between them and Miss Claridge had demonstrated animosity towards the appellant by slamming the telephone down while he was trying to speak to her and in other ways. In my view this is an over sensitive criticism of his Honour's remarks. It is clear to my mind that the magistrate was simply stressing that on the appellant's version there was nothing in dispute which was of direct relevance to the present application, whereas Miss Claridge deposed to a series of incidents during which she was harassed and on two occasions threatened with physical violence. When considered against this background the remarks were appropriate. Ground 7 19. In rejecting Mr Pearce's argument that the dispute over the division of property prompted Miss Claridge's allegations that the appellant was harassing her the learned magistrate said: "There are one or two problems, however, with this scenario. The first is that I watched Miss Claridge's response to questions about the Schedule A property and I am firmly of the view that, to her, the items on the Schedule were of no real importance and that the property issue is at an end. She did not have the defendant's pillow cases and towels and bowls and other such items, nor did she care. I did not form the view that she worried about it sufficiently to pursue such an elaborate and sophisticated scheme. In any event, she would have known that taking out a restraint order would not necessarily prevent contact over the property items, because the defendant had written to her advising that he was going to the Family Court unless the matter could be resolved. In the end, I am of a view that she took out the restraint order because she was being harassed by the defendant." Mr Pearce said that these remarks were inconsistent with the evidence. He said the property issue was not at an end at this stage and a letter which she wrote to the appellant and her evidence suggested that she felt strongly about this dispute. I do not agree that the evidence goes as far as Mr Pearce argues, but the point being made by the learned magistrate was, in my view, quite valid. He made it clear that, whatever she felt about the property settlement, she was not worried about it sufficiently to embark upon an elaborate and false story of continuous harassment. Ground 8 20. Mr Pearce argued before the learned magistrate that the letter dated 25th June, 1990 which Miss Claridge wrote to the appellant suggested that she was not frightened of the appellant but aggressive and threatening towards him and that the letter supported his submission that she was quite capable of making a false report. The magistrate refused to read this much into the letter. He thought that it revealed her as an angry young lady but added, "I would have thought that was precisely a normal reaction to her husband's behaviour and, if anything, tends to corroborate her testimony. She subsequently sought and obtained restraint orders that I have already alluded to." It would be unwise to infer very much from the letter. The magistrate recognised this and adopted a cautious approach to its use. In particular he was justified, in my view, in refusing to use it for the purpose suggested by the appellant's counsel and it was open to him to find that it had a tendency to support Miss Claridge's version. Ground 9 21. The defendant wrote a letter to Miss Claridge's solicitors on 8th June, 1990. The learned magistrate had this to say about it: "...he wrote a formal letter to her solicitor on 8th June, 1990 asking for the items in the Schedule and threatening to take the matter back to the Family Court and recover costs. He referred to a conversation with her on 5th June, 1990 in which she abused him verbally. Mr Pearce has laid much emphasis upon this letter as showing his client's bona fides. I accept that it is at least consistent with his client's testimony, but I do not accept that the letter is to be elevated in its importance to such an extent that it contradicts Miss Claridge's testimony. It is not unusual in these types of cases for a man doing what the defendant was doing to adopt a high moral tone in correspondence and to fail to refer to his own behaviour." I have no hesitation in agreeing with the refusal of the learned magistrate to attach much weight to this letter. It was a letter written in reasonably formal circumstances and it provided limited details of the appellant's version of a telephone conversation he had with his wife. It is of very little use in determining the matters in dispute. Grounds 11 and 12 22. In one part of his judgment the learned magistrate stated that the handing over of property in August 1989 preceded the retaining of solicitors by the appellant and Miss Claridge when, according to the appellant (although this was disputed by the respondent) the evidence was to the contrary. In another part of the judgment the magistrate found that an undertaking had been entered into in the Family Court on 6th October, 1989 (which was a date given by one of the witnesses) when in fact a document established that it took place on 7th July, 1989. Mr Pearce conceded that nothing of significance turned on these two matters, but he referred to them because he argued that they were relevant to his assertion that the learned magistrate's overall grasp of the facts was inadequate. I reject this submission. The reasons for judgment are comprehensive and display an adequate grasp of the evidence. Ground 14 23. Miss Claridge described herself in a Family Court affidavit as "business proprietress" and in another Family Court document as "manageress" whereas in her statement to the police and subsequent evidence she gave her occupation as "sales assistant". In fact, the witness worked in a small business with her brother which he owned. She said she used the word "manageress" because she was helping her brother in the shop and there were just the two of them. She said, "We were running the shop together, it was my shop. It made me feel better because we were running it together, trying to build it up". Mr Pearce criticised the learned magistrate for failing to regard these discrepancies as being of significance. After reading the transcript I am satisfied that her evidence on this aspect was of quite minor relevance to the assessment of her credibility. But Mr Pearce went further and said that the magistrate should have found that she wrongly described herself as a sales assistant in order to derive some benefit on the hearing of the application. Mr Pearce said that if she worked as a sales assistant then her job was vulnerable, particularly bearing in mind the claimed disruption to her work as a result of the alleged intrusions of the appellant. This suggestion was not put to the witness when she was giving evidence and in my view it would have been quite unfair for the magistrate to have imputed this motive to her. Ground 15 24. At the conclusion of his reasons for judgment the learned magistrate said: "There has been no suggestion made by defence counsel that the orders of restraint that were actually made are inappropriate and I accordingly confirm them." Mr Pearce pointed out that this was not the stage of the hearing at which the actual terms of the restraint order should have been discussed, but as there has been no suggestion that I should alter those conditions by way of an alternative to allowing the appeal and revoking the order altogether, I cannot see any relevance in this ground. Ground 17 25. In rejecting the argument that Miss Claridge embarked upon the application for a restraint order so as to prevent her husband from contacting her about the property dispute the magistrate said: "In any event, she would have known that taking out a restraint order would not necessarily prevent contact over the property items, because the defendant had written to her advising that he was going to the Family Court unless the matter could be resolved. In the end, I am of the view that she took out the restraint order because she was being harassed by the defendant." It would appear from her evidence and the letter she wrote to the appellant that she may have understood that the property settlement had been finalised and could not be reopened. Mr Pearce said it followed that the explanation suggested by his Honour was not valid. In my view, the witness's understanding of this aspect of the property settlement is not altogether clear from the material to which Mr Pearce referred, but in any event it is obvious from the reasons for judgment that this was a secondary consideration in his Honour's mind and that there were other grounds to support his rejection of the defence argument. Ground 18 26. The learned magistrate stated that in his view Miss Claridge was not worried about the property dispute to the extent that she would "pursue such an elaborate and sophisticated scheme". He was referring to the report to the police which formed the basis of the application for the restraint order and the extensive evidence given by her in support of the application. Mr Pearce criticised the magistrate's use of the description "elaborate and sophisticated" but in my view it was quite justified in the circumstances in that if Miss Claridge's claims were false it followed that she invented a series of approaches, telephone calls and two threats of violence. Grounds 4, 6 and 10 27. Ground 4 claims that the learned magistrate's findings as to the alleged offensive behaviour committed by the appellant were against the evidence and the weight of evidence. Ground 10 complains that the magistrate placed undue emphasis on the following factors:- "(a) The respective demeanour of the parties. (b) The fact that an undertaking was entered into in the Family Court in October of 1990. (c) The fact that the husband could not state why the witness CLARIDGE was lying. (d) The allegation by the witness CLARIDGE that she moved address shortly after separation "in order to avoid her husband". (e) His opinion that the matters in dispute in the property settlement were "not significant items of property". (f) The "degree of latitude" that the defendant had in his employment and the resultant opportunity to commit the acts alleged by the witness CLARIDGE. (g) The mere fact that the witness CLARIDGE had sought a restraint order." 28. In considering these matters as well as the other grounds of appeal I have borne in mind the manner in which this court should approach the hearing of an appeal from a court of summary jurisdiction. This approach is conveniently set out in the judgment of Perry J in Taylor v. Hayes (1990) 53 SASR 282. After referring to Coghlan v. Cumberland (1898) 1 Ch 704 his Honour said (at p 291): "Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate's findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached

by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction. Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the

magistrate upon which it was open for him to reach the decision the subject of the appeal." 29. Grounds 4 and 10 are concerned mainly with criticism of the learned magistrate's finding that Miss Claridge was a witness of truth and that her version was to be accepted in preference to that of the appellant. Mr Pearce argued that there were no obvious flaws in the appellant's evidence; that there was nothing adverse in his demeanour and, that by way of contrast, Miss Claridge's evidence contained inconsistencies, unsatisfactory explanations and instances of prevarication. But after considering Mr Pearce's comprehensive submissions along with the passages in the evidence to which he directed my attention, I am not persuaded that I should reach a view of the matter which differs from that of the learned magistrate. I also disagree with Mr Pearce's suggestion that the learned magistrate erred in considering what motives Miss Claridge might have had for lying and I reject counsel's assertion that the magistrate reversed the onus of proof by placing undue emphasis on the question as to why Miss Claridge would lie. The existence or nonexistence of a motive for telling untruths is an obvious and proper factor to be taken into account when assessing the credibility of a witness. The fact that no motive has been established may, of course, be of little importance and in the present case the magistrate specifically stated that it was not a conclusive consideration. As for ground 6 the magistrate's observations as to the onus of proof could not be criticised and the manner in which he approached the question of motive was in no sense a departure from those principles. Finally, the assertion of Mr Pearce that the objective evidence emanating from the documentary evidence supported the appellant's case and was largely inconsistent with Miss Claridge's evidence is without substance. Apart from the letter written by Miss Claridge to the appellant the correspondence was largely of a formal nature and her letter was equivocal in its bearing on the issue of credibility. Other criticisms of his Honour's reasons placed undue emphasis upon a textual analysis of the reasons rather than focusing upon the process of reasoning which, in my view, contained no obvious flaws. 30. In my opinion none of the grounds of appeal reveal any reason for arriving at a view of the matter different from that of the learned magistrate and the appeal must be dismissed.