DISTRICT COURT OF QUEENSLAND

CITATION:	Millar v Queensland Police Service [2021] QDC 304	
PARTIES:	ANDREW JOHN MILLAR
(Appellant)
v
QUEENSLAND POLICE SERVICE
(Respondent)	
FILE NO:	4469/19	
DIVISION:	Appellate	
PROCEEDING:	Appeal	
ORIGINATING COURT:
	Magistrates Court, Brisbane	
DELIVERED ON:	2 December 2021 	
DELIVERED AT:	Brisbane	
HEARING DATE:	26 October 2020	
JUDGE:	Dann DCJ	
ORDER:	1.	I dismiss the application for leave to adduce new evidence. 
2.	The appeal is dismissed.
3.	I make no order as to costs. 	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – s 222 JUSTICES ACT 1880 – where the appellant was convicted after trial of one count of common assault – where the appellant’s grounds of appeal are that the decision was against the weight of evidence, the Magistrate made findings of fact contrary to the established evidence and the Magistrate took into account immaterial considerations – where the appellant did not proceed with an application for leave to adduce new evidence – whether the learned Magistrate was right to convict the appellant 	
LEGISLATION:	Police Powers and Responsibilities Act 2000, ss 382, 433-437	
CASES:	Allesch v Maunz (2003) 214 CLR 180-181 cited
Forrest v Commissioner of Police [2017] QCA 132 cited
George v Rockett (1990) 170 CLR 104 applied
Teelow v Commissioner of Police [2009] 2 Qd R 489 cited
White v Commissioner of Police [2014] QCA 121 cited	
SOLICITORS:	The appellant appeared in person 
N. Kljiac (Legal Officer) for the respondent 	
	
	Introduction
[1]	This is an appeal against a decision of a Magistrate made on 6 December 2019. The appellant, Mr Millar, was convicted after a trial of one count of common assault pursuant to s 335 of the Criminal Code (“Code”). The oral evidence in the trial was heard on 3, 4, 23 and 24 July 2019 and 24 and 25 September 2019.  The learned Magistrate dealt with a significant number of applications by the appellant during the trial including a no case submission at the close of the prosecution case.  After this application was dismissed, the appellant gave evidence.
[2]	The grounds of the appeal are:
1.	The decision was against the weight of evidence.
2.	The Magistrate made findings of fact contrary to the established evidence.
3.	The Magistrate took into account immaterial considerations.
[3]	The appellant drafted his own Notice of Appeal and appeared for himself on the appeal.  He appeared for himself at the trial.
[4]	The appeal was filed on 7 December 2019, prior to the date Mr Millar was sentenced, which was 16 January 2020. The appellant was fined $1,000 and ordered to pay $500 compensation to the complainant. A conviction was recorded. There has been no challenge to the sentence on this appeal. 
Relevant legal principles
[5]	An appeal under s 222 of the Justices Act 1886 (‘Justices Act’) is by way of re-hearing.  
[6]	For such an appeal: 
“the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … At least that is so unless in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance … [A]n appellate court can substitute its own decision based on the facts and the law as they then stand.” 
[7]	On an appeal under s 222, the District Court is required to conduct a real review of the trial (which includes the task of weighing conflicting evidence and drawing its own inferences and conclusions) and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s views.  It is sometimes said that in cases where credit is an issue, it may be appropriate to give the reasoning of the Court being appealed great weight.
[8]	The court has power pursuant to s 225 of the Justices Act to confirm, set aside or vary an order made or make any other order that the court considers just. 
The conduct of the appeal hearing 
[9]	Mr Millar filed five written outlines in relation to his appeal: (15 January 2020, 24 January 2020, 11 February 2020, 17 February 2020 and 18 February 2020). The respondent filed a single written outline on 17 March 2020 and an affidavit of Matthew Ingram affirmed 16 March 2020 which exhibited a chronology of trial document and the transcripts of the trial as it proceeded before the learned Magistrate. 
[10]	The appellant indicated at the outset of oral submissions that the respondent’s written submissions provided a good summary of inconsistences in the evidence and the oral argument proceeded on the basis that the appellant highlighted aspects of matters in those submissions as well as making other submissions. 
[11]	Despite the appellant having filed an application for leave to adduce new evidence on 26 May 2020, during oral argument the appellant stated he was not persisting with that application.   I formally dismiss that application. 
Overview
[12]	The complainant and her mother were out walking on Sunday morning, 20 May 2018.  They were in the vicinity of the intersection of Small Street and Commercial Road in New Farm when a motor vehicle did a U-turn on Commercial Road and, to the minds of the complainant and her mother, almost came up onto the gutter and hit them, causing them to jump back.  That car was driven by the appellant.  The car parked in front of the Commercial Road Antiques Centre. 
[13]	As the complainant and her mother continued walking along Commercial Road, the appellant got out of his car. The subsequent interaction between the complainant and the appellant was what gave rise to the charge of common assault of which he was convicted.  
The record
[14]	The record comprises oral evidence and argument given over a number of days. For ease of reference, I have annexed to these reasons as Annexure A the chronology of trial prepared by the respondent. 
[15]	The witnesses who gave evidence during the trial were:
(a)	Tahlia Margaret Wiley, the complainant;
(b)	Anna Wiley, the mother of the complainant and an eye witness;
(c)	Terrence Darby, sales assistant at Commercial Road Antiques and an eye witness;
(d)	Ian James Thompson, owner of Commercial Road Antiques Centre and an eye witness to some parts of the incident;
(e)	Eli Joshua Richard Michelsons, Assistant Manager at Bridgestone Woody Point, boyfriend of the complainant, who attended on the complainant shortly after the incident; 
(f)	Dr Peter Henry Stanley, general practitioner who the complainant consulted the day after the incident;
(g)	Senior Constable Kelly Michelle Hatherly, officer who served the notice to appear on the appellant;
(h)	Constable Brenton Palmer, Investigating officer; and 
(i)	Andrew John Millar, the appellant.
[16]	According to the trial transcripts there were 20 exhibits tendered during the trial.  A list of those exhibits is contained in Annexure B.  
[17]	The decision was handed down on Friday 6 December 2019. 
The learned Magistrate’s decision and findings
[18]	In his sixteen page decision the learned Magistrate summarised the identity and role of each of the witnesses called in the proceeding and their evidence.  He correctly identified the burden of proof being on the prosecution and that that burden of proof was to prove each of the elements of the offence beyond a reasonable doubt upon the whole of the evidence.
[19]	He identified the various scenarios potentially open to him in the approach to the evidence where the appellant had given evidence and what he had to be satisfied of to make the finding that the prosecution had proved each of the elements of the offence beyond a reasonable doubt. In doing that he recorded that he was mindful it was for the prosecution to satisfy him, beyond a reasonable doubt, that the complainant was telling the truth. He directed himself on the complainant’s motive to lie, again stating that he had to be satisfied by the prosecution that the complainant was telling the truth. 
[20]	He then made the following factual findings:
(a)	On 20 May 2018 at approximately 9.30am the appellant did a u-turn on Commercial Road, Newstead, near the intersection of Small Street and Commercial Road;
(b)	The complainant, Tahlia Wiley and her mother, Anna Wiley were about to cross Small Street when the appellant drove so close to them that they had to step back from Small Street to avoid being hit by the appellant’s car;
(c)	The complainant spoke to the driver, the appellant, who then insulted her and her mother by calling them idiots and advancing on the complainant;
(d)	The complainant then kicked the appellant’s car using a soccer style kick that did no damage; 
(e)	The appellant grabbed her briefly by the arm and she got away;
(f)	The appellant quickly got hold of her again and then forced her up against the wall near the entrance of the antique store by grabbing her about the neck and then her shoulders and pinning her against the wall. All the while the complainant was screaming or shouting for help;
(g)	After she got away from him, the appellant grabbed her a third time before desisting;
(h)	The complainant then took a photograph of the car and the license plate and a second photograph of the appellant;
(i)	The appellant then went to Anna Wiley, the complainant’s mother, and stood over her yelling at her; 
(j)	The complainant and her mother left the area, called the complainant’s boyfriend and later returned to the store to speak to the witnesses Darby and Thompson; 
(k)	The boyfriend, Mickelsons, spoke to the appellant on the phone as did Thompson and Darby.  Their evidence is accepted as to what was said on the phone;
(l)	At some point on that morning the complainant got a scratch to her shoulder.  How that scratch occurred is unclear.  The witnesses said the scratch was not there before the incident; it was there after the incident. The appellant argued it could not have happened the way the complainant described, and that the scratch was done afterwards to improve their case. There was no allegation of bodily harm to be proved by the police;
(m)	The police were called and an investigation commenced.  
[21]	Specifically, the learned Magistrate said of the appellant’s actions and evidence:
(a)	The appellant’s conduct after the incident was bizarre;
(b)	The appellant made no mention at all of the damage to his car to Darby or Thompson and was more concerned about the police getting involved;
(c)	His claims of curiosity as to what the complainant and her mother wanted were ludicrous;
(d)	That he rang up from a phone booth at one time defies explanation;
(e)	The calling out of “drugged up Columbian bitches”, which the appellant said was also bizarre;
(f)	The Magistrate did not accept that the appellant took the bike into the store first and returned to get his phone.  He returned to the store later that day to find out more. 
[22]	The Magistrate then went on to make the following findings:
(a)	The complainant did not consent to the assault by the appellant;
(b)	The appellant did not put his whole case to any of the prosecution witnesses.  However, as he was unrepresented and put parts of his case to some of the witnesses, the Magistrate did not view his case unfavourably because of his failure to put it.  The Magistrate rejected the defendant’s evidence where it conflicted with the prosecution witnesses; 
(c)	The weight of the evidence was that the appellant had the complainant pinned to a wall with his hands on her shoulder and briefly put his hands on her neck;
(d)	He accepted the complainant’s evidence.  The medical evidence was consistent with the complainant’s version of events.  The complainant’s version of events was corroborated by the other witnesses;
(e)	He rejected the appellant’s evidence that he never touched the complainant;  
(f)	He found beyond a reasonable doubt that the appellant assaulted the complainant.  
[23]	The learned Magistrate then addressed the defence of provocation, on the basis it was raised on the prosecution’s case, noting the defence case was that the appellant did not touch the complainant.   He identified the definition and principles in respect of provocation and that the onus was on the prosecution to satisfy him, beyond reasonable doubt that provocation did not apply.  He recorded the wrongful act or insult by the complaint was the kick to the motor vehicle, which she admitted doing when the appellant was approaching her in a threatening way.  The Magistrate observed that the complainant had no lawful authority to kick his car.  The learned Magistrate then rehearsed the issues associated in making a determination on the issue of provocation.  He found the complainant’s act of kicking the appellant’s car after words were exchanged between the parties was sufficient to provoke the appellant but that his reaction to grab her neck, then push her by the shoulders up against the wall and pin her there was disproportionate to the insult suffered. 
[24]	He concluded the prosecution had excluded all possible defences beyond reasonable doubt.
[25]	Ultimately, the learned Magistrate found the appellant guilty of the offence of common assault beyond reasonable doubt.  The sentence hearing was adjourned at the request of the appellant. 
The conduct of the appeal
[26]	Using the appellant’s language as nearly as I can, the appellant’s arguments before the Court which supported his overall contention that the Magistrate erred and he should have been acquitted can be summarised as follows: 
(a)	That he did not make any contact with the complainant at all and the complainant’s story was a fabrication. The complainant had made up her evidence about the incident occurring, to distract from the fact she had committed the offence of wilful damage in kicking his car. The complainant had made up the evidence about the ‘third grab’ and about the scratch on her right shoulder blade being caused during the incident. Further, the complainant’s failure to take a photograph of the scratch on her right shoulder blade, to tell her mother or her boyfriend about the scratch in the immediate aftermath of the incident, to tell Mr Darby or Mr Thompson about it during the time she and her boyfriend were in the shop after the incident or to tell the doctor about the scratch the next day were all because the scratch was not caused during the incident. The fact the complainant said that the scratch was caused during the incident demonstrated all her evidence was a complete fabrication directed to giving herself cover for the offence of wilful damage in kicking the appellant’s car.  The scratch, in any case, could not have been caused by the complainant being up against the brick wall. The appellant’s argument at the hearing of the appeal was that the scratch was a pre-existing injury. In so far as the arresting officer and the boyfriend said that the scratch was red and fresh looking, the appellant contended it was apparent from looking at the photograph that this was not so; 
(b)	The complainant’s mother was not an independent witness because she was the complainant’s mother. In particular where an aspect of her evidence of whether or not the complainant was grabbed a third time differed from the complainant, (because the mother said there was no ‘third grab” whilst the complainant said there was), this proved the complainant had perjured herself. The complainant’s mother had ‘forgotten the script’. The appellant did not submit the Magistrate had relied on this ‘third grab’. The appellant’s submission was that the fact of the inconsistency in the evidence between the mother and the complainant, of itself, was enough to mean he should have been acquitted but it could also be taken with other inconsistencies to demonstrate that he should have been acquitted. The appellant’s further submission was that the mother’s evidence was confused and her evidence was so unsafe in other respects that it was not possible to accept the underlying findings; 
(c)	The investigating officer was not a witness of credit. This was because a particular in relation to a scratch was left in the charge sheet after the matter came before Magistrate Quinn in May 2019 and was still in play until 21 June 2019 but he gave evidence that it was removed on 8 or 9 May 2019;
(d)	The witness Mr Darby had animus towards the appellant and could not be accepted. That Mr Darby was lying was apparent from the evidence he gave that he saw Mrs Wiley, the complainant’s mother run over and grab the appellant and pull her off the complainant when Mrs Wiley’s evidence was that she never went near the appellant. Given this untruth, it was not possible to accept Mr Darby as a witness of truth. He further adopted the various inconsistencies set out in [43] of the respondent’s written submissions to demonstrate why Mr Darby was not a witness of truth;
(e)	The QPS refused to get the witness Mr Thompson involved until the Court ordered them to do so and a statement was taken in December 2018;
(f)	The witness Mr Thompson was in an invidious position, trying to manage lots of different interests, and did not want to do anything to suggest that Mr Darby, who was his friend, had perjured himself. Even so, Mr Thompson’s repeated evidence was that the appellant never touched the complainant and that evidence should be accepted. The Magistrate ignored this discrepancy. Further, Mr Thompson’s evidence that there was no third grab supported the complainant’s mother’s version of the evidence;
(g)	Dr Stanley’s evidence did not support the prosecution case because although he said that the alleged soft tissue injuries could have been caused by the events the complainant told him about, he also agreed with the appellant that such injuries could have been caused by other means and you can’t see a soft tissue injury. Dr Stanley had not inspected the scratch during the examination;
(h)	The police acted to the detriment of the appellant because they acted to ensure the CCTV of the inside of the antique shop, which would have shown the locations of various witnesses inside at various times, was destroyed by not acting quickly enough to take possession of it. Mr Thompson had told the investigating officer that there was CCTV footage outside and the investigating officer (Constable Palmer) did not ask, so he did not find out, that this was wrong and there was no CCTV footage of outside;
(i)	The QPS denied the appellant his right to an electronic record of interview, which meant that the first chance he got to put his version of the events of the day was at the trial; 
(j)	The Magistrate’s decision was against the weight of the evidence because Mr Darby lied, the mother told the court the daughter lied about the third grab and the complainant was lying about all three grabs and the scratch being caused in the incident to cover up being in trouble with the police for kicking the car and for all the other reasons he had already raised. Contrary to the Magistrate’s finding there was nothing ludicrous about the appellant’s evidence;
(k)	‘pinned’ can have a meaning which does not involve touching and he thought that Mr Thompson and possibly Mr Darby accepted that ‘pinned’ doesn’t mean touching and the Magistrate had misrepresented the evidence when he stated that the evidence of all four was that the appellant had the complainant pinned against a brick wall; 
(l)	The Magistrate had a personal mindset against the appellant, which was apparent from the part of the decision on page 17 where the Magistrate found the appellant’ evidence was marked by reconstruction and invention where it was inconsistent with the complainant’s evidence; 
(m)	The preceding twelve points were the points which supported the grounds of appeal that the Magistrate had made findings of fact contrary to the established evidence and that the decision was against the weight of the evidence;
(n)	As to the ground of the Magistrate taking into consideration immaterial considerations, this was also demonstrated by the reference to his telephoning the store after the incident. 
[27]	The appellant otherwise relied on the matters in his five outlines. Having reviewed the five outlines carefully, I observe there are no substantial arguments raised in them which were unaddressed by the appellant in his oral submissions. I deal with the appeal by addressing each of the appellant’s oral arguments. During his oral submissions the appellant used emotive terms such as lying and perjury to describe where there were inconsistencies in the witnesses’ testimony.  Where it is appropriate to do so, I make observations about the appellant’s use of this language.    
[28]	I deal with each of the appellant’s arguments in turn. 
Appellant’s arguments 1 and 2: The complainant’s allegations were a fabrication and the mother was not independent
[29]	There was overlap in these arguments from the appellant. The key themes were: 
(a)	The complainant fabricated the account of an assault to avoid the fact that she committed an offence herself of wilful damage to the appellant’s car; 
(b)	The complainant made up the allegation in her evidence that there was a ‘third grab’ of her by the appellant. Her mother was not independent but in saying there was “no third grab”: this demonstrated she had “forgotten the script”. The mother had, in her evidence “dobbed in the daughter” for “perjury”; 
(c)	The complainant said she suffered a scratch on her right shoulder blade during the incident, which was a fabrication to further support her account.  
[30]	There is no logic to the appellant’s argument that the complainant confected the story of the assault to avoid the fact she had kicked the car and possible criminal liability for that. Inherent in her reporting the alleged assault to the police was her reporting to them that she kicked the car. She reported doing so to Constable Palmer when she made the complaint on the morning of the alleged incident and it is recorded in his notebook. She gave sworn evidence in the trial that she kicked the appellant’s car. This was not the course of a person who was seeking to avoid any potential consequences of kicking the car. Further, in going to the mother’s independence, her mother gave evidence that the complainant kicked the side of the appellant’s car. The Magistrate found the kick occurred prior to the appellant’s assault of the complainant.
[31]	I reject this argument of the appellant.  
[32]	The appellant contended before me that the ‘third grab’ was significant because whilst the complainant gave evidence that it occurred, her mother gave evidence that it did not occur. Thus, the appellant contended, the mother’s evidence should be accepted and should support his contention that the complainant was lying about this, which would support the attack on her credit generally that she had lied about being assaulted. 
[33]	The mother’s evidence was to the effect that after the complainant managed to get away from the appellant (him having her up against a brick wall with his hands around her neck and throat) the complainant ran towards Commercial Road and the appellant chased her. She (the mother) called out to the effect “just leave her alone” but she was too scared to go near the appellant because she thought he might hurt her too. The appellant did not catch the complainant: a man in the antique shop yelled out to the effect “I’m going to call the cops. I’m going to ring the cops mate” and the appellant backed off. At that point, he came over to her (the mother), stood over her and made her feel a bit scared and intimidated and started yelling out “She’s on drugs. She’s a Colombian bitch”.  
[34]	Mr Thompson’s evidence did not support a ‘third grab’ although he accepted his memory about the incident was not all that strong. 
[35]	It is accepted that the witness accounts are inconsistent as to whether there was a “third grab”. The magistrate made an express finding that he accepted the complainant’s evidence (and it was the complainant who had given evidence of the third grab). However, there is no relevant inconsistency in the evidence of the complainant, her mother and Mr Darby that the appellant did physically grab the complainant.  All of them gave evidence before the Magistrate that the appellant pushed the complainant up against the brick wall and had her held captive there.  The complainant’s mother and Mr Darby were located in different positions as they witnessed the incident.  It is not surprising they gave differing accounts of some details of the incident.  
[36]	It is apparent from the evidence that the incident occurred quickly:
(a)	The mother’s evidence was that it was “probably seconds”; 
(b)	Mr Darby’s evidence was that it was “very quick” maybe be 1.5 to 2 minutes;
(c)	The appellant’s evidence was that the whole episode took about 45 seconds.
[37]	Further, Mr Thompson’s evidence of the timing of the wall incident (although his evidence was that the appellant did not touch the complainant) was that it was 20 to 30 seconds and the appellant was exercising physical control over the complainant.  
[38]	As such, the discrepancies about whether there was a “third grab” do not undermine the witnesses’ evidence of the assault which occurred when the appellant had the complainant held up against the brick wall. 
[39]	As to the other inconsistencies the appellant contends makes the complainant’s mother’s evidence unreliable and unable to be accepted (where she was standing and how the police prosecutor sought to clarify aspects of her evidence after she had given an account of what occurred), none of these matters go to challenge the core issue of the complainant’ mother’s evidence which was of the assault the appellant has been found to have perpetrated on the complainant.  
[40]	The appellant sought to make much of evidence concerning the scratch on the complainant’s shoulder blade and, more particularly, her failure to complain about it to her mother, her boyfriend or the men in the antique store.  It was accepted that she reported the scratch to the police when she reported the incident the morning that the incident occurred.  The complainant accepted in her evidence she did not take photos of the scratch. Her evidence was that she took the photos of the car and the appellant to ensure identify could be proved. That is inherently reasonable when a person has been assaulted by a stranger. I observe from looking at the photographs which were tendered that the scratch is on the back of the complainant’s shoulder, on the shoulder blade. It would be most unlikely that the complainant could have seen the scratch on herself and she could not readily have taken a photograph of it herself. 
[41]	Constable Palmer, who took the photograph of the scratch on the complainant’s shoulder blade on the morning of the alleged assault gave evidence that the scratch was red and looked like a fresh scratch. 
[42]	The complainant’s mother’s evidence was that when they were waiting outside the gym the complainant didn’t raise with her mother that she had suffered the scratch.  
[43]	Mr Michelsons’s evidence was that he saw the scratch on the complainant’s shoulder after the antique store. He could tell it was fresh – it was just red around it and visible. He noted it to the police and they took a couple of photos of it. He did not recall seeing the scratch prior to that day and his evidence was that he sees the complainant every day. He accepted that the complainant did not say she had suffered the scratch when he first saw her outside the gym when he responded to her phone call for help, or in the antique store. When they got back to the apartment is when he and the police saw the scratch on her back. His evidence was it would have been hard for her to notice where the scratch was, and he and the police noted the scratch on her back, not her.  Mr Michelsons said that the complainant was distraught back at the apartment when the police came: she was still crying on and off and she was sad and distraught and shaking. His evidence was that the complainant did not have a scratch on her before 20 May 2018. 
[44]	Dr Stanley’s evidence was that from his recollection the complainant did not say anything to him about suffering a scratch, he did an examination and he found the faint scratch and told her it was there.
[45]	The appellant submitted that there was no forensic evidence to support the scratching (caused by the assault). In his evidence Constable Palmer explained the absence of forensic evidence as follows. He had a visual look when he was trying to identify where the assault occurred and he didn’t see anything, he made a request for a scenes of crime attendance on the day of the incident but, that same day, scenes of crime made its own inquiries and determined his photograph of the complainant’s injury was sufficient and there was no value in their attendance. 
[46]	The appellant’s further submission that the injury was inconsistent with contact of coming into a brick wall. He advanced this submission based on photographs tendered into evidence at the trial on the basis that such a scratch would not be caused by rubbing against the bricks and further, that the injury was healed over. The first argument fails on the basis of the witnesses’ evidence, rehearsed elsewhere in this judgment, was that the appellant had the complainant hard up against a brick wall, thereby providing the opportunity for the injury to have occurred. There was no expert evidence called which could support a submission that the size of the bricks meant it was impossible for such a scratch to have been caused by the bricks. The second argument is met by the evidence of Constable Palmer and Mr Michelsons noted elsewhere in this judgment that each of them thought the scratch looked fresh. When they saw it on the morning shortly after the incident. 
[47]	The learned Magistrate noted that, in any case, the prosecution was not required to prove the scratch on a charge of common assault.  The issue at trial was agitated on the basis that it affected the complainant’s credit (or potentially could do so).  Given the support of the eye witnesses as to how the incident occurred, and Mr Michelsons’s evidence that the scratch was not there before the incident but it was there after it, in my view, there is no basis for the submission that the complainant made up her evidence that the scratch was sustained during the incident. 
[48]	As is apparent from the photographs tendered at the trial, the scratch was on the back of her shoulder blade, not in a position where she could see it easily, if at all.  Both the complainant and her mother gave evidence of being shocked and frightened by what had occurred to them. Mr Michelsons described the complainant as sad, distraught and crying back at their apartment.  In my opinion there is nothing about the evidence of the scratch which undermines the complainant’s evidence that the assault occurred. 
[49]	These arguments by the appellant fail. 
Appellant’s argument 3: challenges to the credit of the investigating officer arising from the decision not to try to prove the scratch 
[50]	On the first morning of the trial the Magistrate refused an application by the appellant for information from the prosecution as to how the prosecution determined not to prove the scar (or scratch) beyond a reasonable doubt, so as to found a charge of assault occasioning bodily harm. He further ruled that the issues could be raised in cross examination of the arresting officer, the complainant and, for the nature of the injury, the doctor. Each of these parties was cross examined by the appellant. 
[51]	Relevantly to this argument by the appellant, Constable Palmer was the arresting officer. He was recalled to give further evidence. His evidence was that he and the prosecutor discussed pursuing common assault versus assault occasioning bodily harm and that if the appellant was found guilty of common assault that would still be an appropriate punishment in the circumstances of the case, so it was appropriate to downgrade the charge to a common assault. That evidence was not shaken in cross examination. Further, his evidence was that he believed the scar was fresh when he looked at it on the morning of the incident and the version of events he was provided with seemed plausible. 
[52]	There is no basis to impugn Constable Palmer’s credit arising from this passage of his evidence.  The Magistrate had the opportunity of watching and listening to the witnesses give their evidence and his assessment should be given weight. Further, I agree with the learned Magistrate’s observations the other general attacks the appellant made on Constable Palmer’s integrity were without foundation.  
[53]	Nothing raised in it has any relevance to the determination by the learned Magistrate that the assault occurred.   The appellant’s argument fails. 
Appellant’s argument 4: the animus of Mr Darby towards the appellant 
[54]	The appellant opened his cross-examination of Mr Darby at trial with the proposition that Mr Darby disliked him.  Mr Darby gave evidence that he did not dislike the appellant, rather he thought that the appellant bullied his employer, Mr Thompson, into buying things from him, which Mr Darby thought was wrong. He accepted that, on occasion, he did block the appellant’s path into the shop a few times, because Mr Thompson did not want to speak with the appellant then, because he had other things on. He did not accept that he didn’t want the appellant to have dealings with Mr Thompson. 
[55]	The learned Magistrate expressly addressed in his decision that the inconsistencies in Mr Darby’s evidence as against other witnesses did not make the whole of his evidence unreliable, nor did the undercurrent of dislike which the witness felt for the appellant because of how the appellant treated his employer.  
[56]	It is plain from what the Magistrate wrote that he was aware of Mr Darby’s dislike of the appellant and he took that into account in forming his assessment of Mr Darby’s evidence. Similarly, the Magistrate was aware that Mr Darby’s evidence was inconsistent in some respects with the evidence of other witnesses and he took this into account in making his assessment of Mr Darby’s evidence. This is a quintessential situation where I give deference to the learned Magistrate’s views as he saw all the witnesses give their evidence and he was in a position to make that assessment.  
[57]	There is no foundation in this argument put by the appellant.
Appellant’s arguments 5 and 6: Mr Thompson 
[58]	As to the first issue, which was that Mr Thompson did not provide a statement until 2018, it was unclear how, ultimately, the appellant submitted that this had any issue on the Magistrate’s findings in the case. Mr Thompson gave a statement to the police, he was called, he gave evidence and he was cross examined by the appellant at some length. 
[59]	I apprehend that the true issue the appellant sought to agitate was that Mr Thompson’s evidence was that the appellant did not touch the complainant and that evidence should be accepted but the Magistrate left it out of the decision. It was the appellant’s case that he had not made any contact with the complainant and ‘this is a savage cry wolf’ scenario. 
[60]	Mr Thompson’s evidence included that what he saw was close to the appellant choking the complainant, the appellant was threatening, the appellant was really angry, the appellant had his hands raised towards the girl and he saw the appellant threatening her but not touching her. Mr Thompson’s evidence was that the complainant was pinned against the wall for a matter of 20-30 seconds and that the appellant was exercising physical control over her.
[61]	The learned Magistrate summarised Mr Thompson’s evidence, including that in chief he had said “he could not remember at any point seeing the defendant touch the young lady” and that in cross examination “he agreed on multiple occasions that he did not see the defendant touching the young girl”. Thus the appellant is wrong to submit that the learned Magistrate left this out of his decision, or ignored the discrepancy. The learned Magistrate specifically included in the passage of his decision where he analysed the witnesses’ evidence of the assault against the wall, that the evidence of Mr Thompson was that he could not say the appellant was touching her but the appellant had physical control over the complainant.  
[62]	The learned Magistrate’s reasons for his decision demonstrate he fully understood the discrepancies in the witnesses’ evidence and he made findings, having seen the witnesses and listed to their evidence. 
[63]	There is no basis to the appellant’s arguments in respect of Mr Thompson.  
Appellant’s argument 7: Dr Stanley’s evidence 
[64]	Dr Stanley, a general practitioner, gave evidence that he’d never seen the complainant as a patient before she came to see him on 21 May 2018 and she was quite upset and distressed. The complainant said her neck was sore, he examined her and she had some muscle spasm present in her neck and on getting her to do head movements she was a bit sore around the base of the neck on both sides, where the neck joins the shoulders. It seemed to be some sort of muscle or soft tissue injury; there was no obvious bruising but the muscles were sore to touch.
[65]	The injuries were consistent with how the complainant said they were caused, which was that there was some disagreement with a man who grabbed her by the throat and pushed her up against a wall. The soft tissue injury was consistent with being grabbed around the throat and could be a likely cause of those injuries. The complainant told him she had been assaulted the day before the consultation. 
[66]	In cross examination Dr Stanley’s evidence was that the complainant had a tremor in her voice and was visibly upset. He confirmed the injury he found was consistent with someone causing soft tissue injury to the neck. It was not strange she would have a tremor in her voice the next day; this could be delayed reactions. He agreed there were other mechanisms that could cause tension in the neck. (In that regard I note the scenarios which the appellant put to Dr Stanley were many other types of physical activities, like playing rugby, getting dumped in the surf, falling over or taking bumps. There was no evidence that any of those things had occurred to the complainant prior to her consultation with Dr Stanley). He agreed there was no visible bruising. His evidence was that there can be deep seated bruises where there’s no marking on the skin but the deeper tissues are sore. His further evidence was that bruising appearing on the neck would depend on the degree of pressure and that some people can take several days for bruising to appear. You would not necessarily expect to see bruising if there was such a level of choking that the person choked could not get their words out and there were three episodes of choking. You wouldn’t expect to see any red marks. He confirmed he did not see any red marks or bruises. Dr Stanley’s evidence was that he saw the scratch on examination, but the complainant did not tell him about the scratch. The pain was the neck movement forwards and backwards on the neck and what she said was getting sore fitted the movements. 
[67]	The learned Magistrate summarised the evidence Dr Stanley gave, including in cross examination, in the decision. That summary was accurate and focused on the evidence relevant to the issues in the trial. 
[68]	In the analysis section of the decision the learned Magistrate observed that “the medical evidence is consistent with the complainant’s version of events”.  
[69]	This conclusion is manifestly open on the evidence. The appellant’s contention that the doctor’s evidence did not support the prosecution’s case because he gave evidence that other means could have caused the injury misconceives the position. There was no evidence of any alternative causes of the injury which the doctor observed. There was evidence from the doctor that what he observed on examination was consistent with what he was told (ie being grabbed around the throat). The learned Magistrate has accepted that evidence which was he was entitled to do.  
[70]	There is no substance to this argument by the appellant. 

Appellant’s argument 8: failure to get the CCTV footage 
[71]	The appellant’s arguments about the CCTV footage were:
(a)	that CCTV footage from inside the antiques store was not obtained;
(b)	if he had been contacted by the police within a week or two of the incident then he could have told them about the fact of there being CCTV footage; 
(c)	Mr Thompson told Constable Palmer there was CCTV from outside, even though, in fact, Mr Thompson was wrong and there was no such CCTV;  
(d)	the CCTV footage would have been critical for his defence because it would have shown:
(i)	that the complainant’s evidence was false because it should have shown he had taken a bike into the store and come out again;
(ii)	that Mr Thompson was outside on the footpath with him, observing the whole incident in amazement;  
(iii)	that the complainant came into the shop with her boyfriend and it would have shown the boyfriend in proximity to his partner;
(iv)	it would have shown when Mr Darby went to the window. 
[72]	Mr Darby’s evidence was that there was no CCTV footage outside the shop which is what he told the police officer when he asked him that. There was CCTV footage of inside the shop, but he was never asked for it. 
[73]	Mr Thompson’s evidence was that there was no CCTV footage of the outside of the shop, there was CCTV footage of the inside of the shop but from his knowledge that would not have captured the incident. The police officer asked him about CCTV footage and he probably said yes, thinking of the inside footage but the police didn’t ask him to provide it to them so he didn’t. He accepted that the CCTV footage would have shown whether or not the appellant had taken a bike into the store before the incident occurred. Whilst the CCTV covered the area including the window where Mr Darby had been standing, the picture from it would have been directed into the shop, not any part of the footpath. As to his own location, Mr Thompson gave evidence that he was not aware of the complainant and her mother approaching the shop until he heard the screaming, he didn’t remember watching the complainant yelling obscenities at the appellant and the screaming was loud enough because he was inside again, to drag him outside.  He was not standing to the right of the roller door until after he heard the screaming; he came down in response to the screaming. Mr Darby had seen the initial thing but he didn’t; Mr Darby was yelling “Andrew get off her” and he went down the ramp. He was at the top of the ramp area inside the store when he heard the screaming and that drew him downstairs. 
[74]	Constable Palmer’s evidence was that he made notes on 20 May 2018 that there was no CCTV available. He believed that information came from Mr Thompson even though it was under a note ‘Took up with Terrence Darby” in his notebook. Extracts from the notebook were tendered as Exhibit 3. He became aware of the existence of CCTV footage after it was no longer available, but it was CCTV footage from inside the antique store, he was not aware of any CCTV that captured the area outside the antique store, which would only have been relevant to put the suspect at the place at the time. 
[75]	I find there is nothing in the appellant’s arguments concerning the CCTV footage for the following reasons: 
(a)	The position at trial was that the CCTV footage had not been obtained. The only CCTV footage which could ever have been obtained would have been of inside the antique shop. As such, it would not have captured the assault, which occurred outside the antique shop; 
(b)	Whether or not it would have shown the appellant had taken a bike inside the shop before the incident is a peripheral issue to the critical issues to be determined at the trial. I accept the learned Magistrate’s observation that to reason that if no bike could be seen in the back of the appellant’s car in the photograph that was Exhibit 1 meant that his version must be true and the complainant’s must be false is inconsistent and illogical. The learned Magistrate decided the trial on the weight of the evidence, which was that of the complainant, her mother, and both Mr Darby and Mr Thompson, that the appellant had the complainant up against the wall and all of them bar Mr Thompson had the appellant touching her. Whether or not the appellant had already taken the bike into the shop did not bear upon this central issue. Even if the complainant was mistaken about it, it did not jeopardise her credit generally. It was something which would have occurred prior to the incident, at a time when the complainant was unlikely to be paying particular attention to what the appellant was doing;
(c)	Mr Thompson gave evidence as to his location and what he saw and he was cross examined. In so far as the CCTV did not capture what was occurring outside, it would not have assisted in capturing Mr Thompson’s amazement when, on the appellant’s version, he was outside;
(d)	The complainant and her boyfriend coming into the shop is after the incident and does not bear upon the incident itself; and 
(e)	Mr Thompson’s evidence was that he was aware Mr Darby was in the window. Mr Darby’s evidence was that he was on the left hand side doors, a balcony door, he saw the appellant’s car drive down the street and he heard the complainant saying ‘you almost ran me over’ and he was still on the balcony door looking down when he put his arm up and pushed her against the wall.  Given these descriptions of Mr Darby’s location and where the actions the subject of the trial were occurring, the CCTV footage would not have added to the veracity of what Mr Darby saw. 
[76]	The appellant’s arguments in respect of this issue fail.
Appellant’s argument 9: Failure to afford the appellant an electronic record of interview 
[77]	Constable Palmer gave evidence that he attempted to call the appellant to arrange an electronic record of interview with him as he was the suspect. He left a voicemail message asking the appellant to contact him at the police station and he flagged the appellant as wanted for questioning. His evidence was that the appellant remained flagged wanted for questioning for two months whilst he was compiling evidence in the investigation. The flag remains in the system until either a proceeding is commenced or the interview has taken place. He disagreed that leaving one phone message was unacceptable and his evidence was that he did not know that the phone he left the phone message on was in police custody, because of ongoing matters, at the time he left the message. He also didn’t know about the appellant’s bail reporting requirements at the time of the investigation or loading the notice to appear into the system but if he had known the appellant was reporting on bail every day at Holland Park he would have made attempts to contact Holland Park.   
[78]	The officer who served the notice to appear confirmed she did so having printed it off QPRIME. She did not investigate the matter. The appellant ran out of the station and the boys brought him back and she served the notice to appear on him. She did not offer the appellant a record of interview because that wasn’t the flag on QPRIME.
[79]	Constable Palmer’s evidence was that he had no idea when the notice to appear was being served, he got told after the fact that it had been served. 
[80]	The appellant maintained that his right to an electronic record of interview arose from sections 433 – 437 of the Police Powers and Responsibilities Act 2000 (PPRA). However this is not so. Section 433 confers a right to an interpreter before police commence questioning. Section 434 confers a right on a visiting foreign national to contact an embassy or consular official before questioning starts. Section 435 provides that a police officer who is required to give relevant information to a person, including a caution, must, if practicable, electronically record the giving of that information and the persons’ response. Section 436 provides that questioning of a relevant person must, if practicable, be electronically recorded. Section 437 deals with requirements for a written record of a confession or an admission.  All of these provisions are predicated on a person being in the company of a police officer for the purpose of being questioned as a suspect about involvement in the commission of an indictable offence.  At no stage was the appellant in these circumstances. Furthermore, there is no statutory obligation on a police officer to take a statement from a person prior to determining to charge that person. 
[81]	The factual circumstances in this matter come within the requirements of section 382(2)(b) of the PPRA which empowers a police officer to issue a notice to appear where asked by another police officer who reasonably suspects the person has committed an offence to issue and serve the notice. The High Court has observed that suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove."
[82]	In this case, Constable Palmer had spoken with the complainant and various other witnesses and obtained details of an alleged assault by the appellant on the complainant. He had left a voicemail for the appellant to contact him, to which the appellant had not responded.  He did not know the appellant did not have his phone. He plainly had a basis for a reasonable suspicion that an offence had been committed.  
[83]	In these circumstances, there is nothing inappropriate in what was done thereafter and there is nothing about the “failure” to have an electronically recorded of the appellant’s evidence that caused the learned Magistrate to act in error in his decision at the trial.  The appellant ran his case fully and he gave evidence before the Magistrate which the Magistrate weighed and assessed. 
[84]	There is no substance in this argument. 
Appellant’s arguments 10 and 12: the Magistrate’s decision was against the weight of the evidence and the Magistrate had a mindset against the appellant 
[85]	As I understood the appellant’s oral submissions, his argument that the Magistrate’s decision was against the weight of the evidence was predicated on each of the preceding arguments, which I have already addressed, as well as the fact that the Magistrate preferred the prosecution witnesses’ evidence to his evidence where there was a conflict between them. 
[86]	The learned Magistrate summarised the appellant’s evidence fairly in the decision. He then set out, accurately, that the defence evidence was added to the prosecution evidence and the prosecution had to prove the offence beyond a reasonable doubt. He properly directed himself on the issue of how to consider the matter where the appellant had given evidence.  
[87]	He made findings that: 
(a)	The appellant’s conduct after the incident was bizarre, in that he made no mention about the damage to his car when speaking to Darby and Thompson but was more concerned about the police getting involved; 
(b)	The appellant’s claims about curiosity as to what the complainant and her mother wanted were ludicrous; 
(c)	The appellant calling up from a phone booth at one time defied explanation; 
(d)	The appellant calling out to the complainant and her mother “Drugged up Columbian bitches” was also bizarre; 
(e)	He did not accept that the appellant took his bike into the shop first and then returned to get his phone; 
(f)	He rejected the appellant’s evidence that he never touched the complainant. 
[88]	Having perused the transcript carefully, those findings were plainly open to the learned Magistrate, who had the benefit of observing the appellant give his evidence. 
[89]	The appellant was, on occasions, inappropriately critical of the Magistrate.  In oral argument he submitted the magistrate’s observation that his account was highly illogical and inconsistent, was “a smart comment, a denigrating comment”. He was also critical of the Magistrate’s observation that his evidence was marked by reconstruction and invention. The appellant’s submission misunderstands that the magistrate, having heard all the evidence over a number of sitting days, was engaged in the exercise of weighing competing testimony, making an assessment and articulating his findings about that assessment. The comments he made about the appellant’s evidence were his assessment of how that evidence should have been viewed. 
[90]	In my opinion, from reviewing the record carefully, the learned Magistrate dealt with the appellant fairly and appropriately throughout the trial despite the appellant frequently interrupting him and failing to follow directions and instructions given by the Magistrate in the course of the case. The Magistrate’s analysis of the evidence was open to him on the record. The learned Magistrate, who had the benefit of seeing and hearing the witnesses give their evidence, rejected the appellant’s evidence as to the events of the day. On my reading of the transcript of all of the appellant’s evidence before the Magistrate, the Magistrate was right to do so: the appellant in his evidence was illogical. He was often argumentative and non responsive in response to questions in cross examination. There is no error in the learned Magistrate not accepting the appellant’s version of events. On my review of the record I agree with his analysis. 
[91]	The appellant has not persuaded me either of these arguments should prevail. 

Appellant’s argument 11: The meaning of being pinned 
[92]	The argument which I understood the appellant pursued here was that the word “pinned” can include the meaning of not touching and the Magistrate had misrepresented the evidence when he held that all four witnesses gave evidence that the appellant had the complainant pinned against a brick wall. 
[93]	In that regard: 
(a)	The complainant’s evidence was that the appellant grabbed her, she got away for a split second, then he got hold of her neck, and shoulders and pushed her backwards towards the wall and was holding her up against the wall and she was screaming for help. She managed to slip away for another second and he grabbed her by the left arm and she screamed. In cross examination she consistently denied she had made up her version and that she was lying to the court. She denied the appellant’s version of events had occurred;
(b)	The complainant’s mother’s evidence was that the appellant grabbed the complainant, she yelled out whilst the complainant tried to break free, she saw the complainant trying to pull away and the appellant then pushed the complainant up against the brick wall with his hands on her throat and neck area. In cross examination she denied she was lying and maintained that the appellant had contact with the complainant;
(c)	Mr Darby’s evidence was that the appellant put his arm up against the complainant’s chest or across her shoulders to chest and pushed her back against the wall. The appellant had the complainant pinned against a wall. In cross examination he denied he was lying and he maintained he saw the appellant push the complainant against the wall and have his arm up against her shoulder and chest;
(d)	Mr Thompson’s evidence is set out at [60] above. In his evidence Mr Thompson accepted that, in boxing terminology, the word pinned is used in a sense when one boxer has the other pinned against the ropes but the ascendant boxer is not touching the losing one. 
[94]	This is, however, not a situation involving a boxing arena.  “Pinned” is defined in the Oxford Dictionary as meaning “to hold somebody fully in a specified position so they are unable to move”.
[95]	That word is perfectly apt to describe the complainant’s evidence, her mother’s evidence and Mr Darby’s evidence of the appellant’s physical assault of the complainant at the page references in the evidence I have set out above.
[96]	The learned Magistrate, in referring to this part of the evidence expressly recorded Mr Thompson’s evidence was that the appellant was not touching the complainant, but that the appellant had physical control over the complainant.  He recorded also that all witnesses were consistent as to where this took place and that the appellant was angry.  No challenge can properly be made to those findings, which are supported by the evidence. No challenge can be made that the magistrate had misrepresented the evidence. 
[97]	This argument of the appellant fails.  
Appeal Ground 1: the decision was against the weight of the evidence 
[98]	As I noted at the outset of these reasons the appellant’s outlines do not address, by reference to the grounds of the appeal, the arguments which are made in support of each ground. Rather, after rehearsing, with criticism, some aspects of the process leading to the trial, the appellant’s documents raise a series of criticisms of various aspects of the Magistrate’s decision.
[99]	The respondent’s outline identifies by reference to certain paragraphs of the outline filed 15 January 2020, that it seems in respect of this ground the appellant takes issue with the finding that the complainant sustained a scratch to her right shoulder blade during the assault. This is, the respondent submits, on the basis that the scratch was either pre-existing or fabricated by the complainant. The respondent then identifies a number of points made by the appellant in support of that submission and responds to each of them with an analysis of the evidence before the learned Magistrate: 
(a)	The complainant did not take photos of the scratch;
(b)	The complainant did not discuss the scratch with her mother, Thompson, Darby or her boyfriend and the evidence was that the boyfriend and police first noticed the scratch when they were at the complainant’s residence;
(c)	The complainant did not tell the doctor about the scratch the following day; 
(d)	No bleeding was observed;
(e)	There was no forensic evidence; and 
(f)	The injury was inconsistent with coming into contact with a brick wall. 
[100]	I have canvassed each of these issues already in the above reasons, in analysing the appellant’s oral arguments. I find the Magistrate did not err as the appellant alleges in this ground.  
[101]	The appellant makes some further points which may be thought to relate to this ground of appeal: 
(a)	The fact the learned Magistrate found there were inconsistencies between the four versions of events by prosecution witnesses means that it was not possible for a court to find beyond reasonable doubt as to the evidence of the prosecution. (Outline filed 15 January 2020 page 3). I have addressed this issue at some length in paragraph [93] above;  
(b)	That there is inconsistency in the account that the complainant was grabbed a third time, because the complainant’s mother could not recall that she was grabbed a third time, and as to where he grabbed the complainant (Outline filed 15 January 2020 page 3). I have addressed this issue at some length in paragraphs [32] - [38] above;
(c)	The witness Darby perjured himself because of his evidence as to the timing of when the complainant kicked the car, but not withstanding this the Magistrate accepted Darby as a witness of truth (Outline filed 15 January 2020 page 4 and outline filed 24 January 2020 page 1).  The Magistrate specifically recorded in the decision that Mr Darby’s evidence differed from the complainant and her mother as to the timing of the kick but found that the inconsistencies did not make the whole of his evidence unreliable. This is, quintessentially a decision for the magistrate in his assessment of the competing testimony of the various witnesses, having had the advantage of observing Mr Darby and the other witnesses give evidence. The magistrate does not need to refer to case law when making an assessment such as this. 
[102]	I find the appellant’s arguments concerning this ground of appeal fail.
Appeal Ground 2: The Magistrate made findings of fact contrary to the established evidence
[103]	There were a number of inconsistencies in the versions given by the witnesses as to the events on 20 May 2019.  
[104]	They were set out in the appellant’s outlines, the respondent’s outline and arguments were advanced upon those inconsistences that were material, which I have addressed in the reasons set out above. 
[105]	In so far as it is necessary to say anything further about this ground, having reviewed the record extensively, I accept the respondent’s analysis, in the written outline of submissions at [54] – [56] that: 
(a)	Inconsistences pressed by the appellant are not material, but, rather, are unremarkable and represent nothing more than natural variations to be expected from eye witnesses who observe a series of events from different vantage points; 
(b)	There were certain core consistencies in the prosecution witnesses which bolstered their credit and reliability. They included: 
(i)	That the witnesses (the complainant, her mother, Mr Darby and Mr Thompson) were all consistent that the assault occurred against the wall. I have set out above at paragraph [93] the evidence about the complainant being pinned against the wall;
(ii)	As set out in paragraph [93] above, three of them gave evidence the appellant touched the complainant whilst Mr Thompson’s evidence was that although he was not touching her, the appellant had physical control of her; 
(iii)	The appellant was told to stop what he was doing. The complainant and her mother maintained that Darby yelled at the appellant to stop and he also gave evidence he said this, whilst Thompson gave evidence he heard Darby say “Andrew get off”; 
(iv)	Mr Thompson’s evidence was that the appellant was really angry;
(v)	There was evidence from Constable Palmer and Mr Michelsons who came upon the complainant after the incident that she was visibly upset and distraught;
(c)	As set out at paragraphs [64] - [66] above, Dr Stanley’s evidence was that the injuries he observed to the complainant were consistent with her having been grabbed by the throat and pushed against a wall. 
[106]	I have dealt with above, other challenges which the appellant made to the credit of the witnesses: 
(a)	at paragraph [30] that the complainant lied because she wanted to cover herself from a wilful damage charge for kicking his car;
(b)	at paragraphs [32] - [38] that the complainant’s mother colluded with the complainant, effectively because she was the complainant’s mother;
(c)	at paragraphs [54] - [56] that Darby was lying because he disliked the appellant. 
[107]	In so far as the appellant has alleged that Thompson colluded with Darby because he (ie Thompson) had made a complainant against the appellant in an unrelated matter, the learned Magistrate expressly observed that Thompson’s version was the most supportive of the appellant, which was a correct observation and would dispel any suggestion of collusion. 
[108]	The witnesses were extensively cross examined; indeed the investigating officer and the complainant’s mother were recalled so the appellant could cross examine them further on issues he maintained were relevant. They did not change their evidence on any material matters. 
[109]	The Magistrate’s finding that the weight of the evidence was that the appellant had the complainant pinned to a wall with his hand on her shoulder and briefly put his hands on her neck is amply supported by the evidence. 
[110]	This ground of appeal fails. 
Appeal Ground 3: The Magistrate took into account immaterial considerations 
[111]	The appellant has not identified with any precision in his written outlines what the immaterial considerations were that the learned Magistrate is said to have taken into account. 
[112]	In his outline filed 15 January 2020:
(a)	At page 4 he contends that the evidence the Magistrate accepted of Thompson and Darby in respect of phone calls was irrelevant as they had nothing to do with the allegations of assault. In oral argument he identified that this was one of his arguments relevant to this ground. The ground was not otherwise agitated in oral argument;
(b)	Further, at page 4 of the outline, the appellant infers the matters at lines 35 – 40 of the decision are irrelevant as they do not concern the assault. The relevant passage is as follows: 
“Police were called and an investigation commenced. The defendant’s conduct after the incident is bizarre. He makes no mention at all of the damage to his car to Darby or Thompson, and is more concerned about the police getting involved. His claims of curiosity as to what the complainant and her mother wanted are ludicrous. That he rings up from a phone booth at one time defies explanation. Th calling out of “Drugged-up Colombian bitches” which I accept as said by him is also bizarre.”
[113]	The appellant again criticises the Magistrate in respect of findings arising out of this passage at page 1 of his outline filed 11 February 2020. 
[114]	I proceed on the basis that the sole issue which the appellant agitates on this ground is the learned Magistrate’s reliance in coming to his decision on evidence of the appellant’s actions after the assault.
[115]	The respondent submitted in its written outline that the magistrate made only limited reference in his decision to the appellant’s post-offence conduct and that, in so far as he made findings in relation to it, those findings were open. This was because the appellant’s conduct after the offence was connected, in terms of time and place and forms part of the narrative. It goes to show how he reacted after the offending.  It can be inferred that this was one of a number of factors leading to the conviction of the appellant. 
[116]	The appellant, when giving evidence, spoke directly about what he did after the events giving rise to the alleged incident, which can be summarised as: 
(a)	He estimated the whole incident from the complainant pulling up saying something to him to leaving across the road took max, 45 seconds; 
(b)	He went up the ramp to the shop where Mr Thompson was in his office and said to Mr Thompson “Can you just believe what happened ? She’s lucky she’s a bloody girl, I couldn’t touch her” to which his evidence was Mr Thompson replied “Yeah I know”. He then said to Mr Thompson “Did you notice the screaming ?” and Mr Thompson replied “yeah unbelievable”. He stayed 5 – 10 minutes in the shop transacting his business then left and got in his car; 
(c)	He was some distance up Commercial Road, and he saw the complainant and her mother, with two other people, and whilst he kept driving he saw them walking back towards the store in his rear view mirror. He wondered if they were going back toward the shop and so he did a u-turn out of curiosity, went up a side street, which had a public pay phone in it, and he rang the store. Mr Thompson answered and he asked “are they back in the shop” and he said yeah then the phone wend dead. The appellant rang back and whilst he was talking to Mr Thompson this guy came on the phone who was yelling expletives and had control of the phone;
(d)	There were about three or four phone calls. He’d driven back to his girl friend’s house and rung back 20 – 30 minutes later. He asked if they were still there and Mr Thompson said no they’d gone. He asked what happened and Mr Thompson replied to the effect that this bloke was so angry and aggressive, but boy was he sexy;
(e)	In later dealings with Mr Thompson (either that day or over the next several weeks) Mr Thompson did not tell him the police had been around.   
[117]	Mr Thompson’s evidence was that the complainant returned later to the store with her boyfriend, she was in tears and visibly shaking and asking why they didn’t do more to help her, to which he responded there was not much they could do and suggested she could phone the police. Her boyfriend was very aggressive and concerned that Mr Thompson was hiding the appellant. Whilst they were there, the appellant had rung the shop and he’d put the appellant off but the appellant called again. He was asking whether the complainant was there, to which he (Mr Thompson) replied she was as was the boyfriend. He put the appellant off again and he phoned a third time; the boyfriend twigged it might have been the appellant and asked to be put on the phone to the appellant. 
[118]	Mr Thompson agreed it was possible that the appellant had said to him words to the effect “Lucky she’s a girl. I didn’t touch her”, although his memory was not coming back to him on that. He was prepared to say it was possible because it sounded like something which the appellant would say. In re-examination his evidence was that he didn’t have the clearest recollection of those words “but it’s very possible and it sounds like the appellant”. Mr Thompson said he hadn’t been involved in anything where the screaming was live. Mr Thompson denied saying to the appellant the boyfriend was sexy; he said he might have said “angry”, he was not sexy, he was angry. 
[119]	Mr Michelsons’ evidence was that when he was in the store with the complainant the appellant had phoned a couple of times and he spoke to the appellant, who said in a very short and repetitive way “You Colombian prick. You Colombian prick” over and over, “I’ve got it all on camera”. Mr Michelsons said he couldn’t speak over the appellant at all really.  When the appellant said “You bearded Colombian prick” Mr Michelsons hung up the phone straight away and went outside to see if he could see the appellant who he thought may have been watching them, but he was nowhere to be seen. None of this evidence was challenged in cross examination by the appellant. 
[120]	Mr Darby’s evidence was that the first time the appellant called the shop he answered the phone and the appellant said “don’t tell them anything, don’t give them my name, don’t blabber, don’t say anything to them” and then Mr Darby hung up on him. The appellant called back and Mr Thompson answered and a similar thing, he hung up and the appellant rang back, he called them Colombians, druggie Colombians and Mr Thompson gave him the phone and they were abusing each other down the phone. 
[121]	In cross examination, Mr Darby’s evidence was that he did not recall the appellant saying anything like “lucky she’s a girl. I couldn’t touch her”. He maintained his evidence as to the exchanges on the telephone. 
[122]	The learned Magistrate’s analysis of this evidence at page 14 of the decision is plainly open to him, him having had the benefit of watching and hearing the witnesses give their evidence. On the evidence of all of them, the appellant did not complain of the damage done to his car when he spoke on the telephone to those in the antique store is a matter which can properly be taken into account in assessing whether to accept the appellant’s evidence, given his focus on his concern for the damage which was caused to his girlfriend’s car.   
[123]	This conduct occurred very proximately in terms of time, to the incident involving the appellant and the complainant. It is part of the narrative of the events and the appellant gave evidence about it. The other witnesses also gave evidence about it, which differed from the appellant’s evidence. 
[124]	I accept the respondent’s submission that it can be inferred that this was one of a number of matters which the learned Magistrate weighed in coming to a decision to convict the appellant. It is apparent from the decision that the Magistrate did not refer significantly to this evidence; it was but one part of the evidence which the learned Magistrate weighed in coming to his decision. I find it was proper for him to do so. 
[125]	There is no substance to this ground of appeal. 
Disposition of the appeal 
[126]	For the foregoing reasons I am satisfied the learned Magistrate did not err. I dismiss the appeal.  
[127]	The respondent in its written submissions has submitted for no order as to costs. I make no order as to costs. 

ANNEXURE A
CHRONOLOGY OF TRIAL
DATE	COURT EVENT	
21 June 2019	•	Plea entered [P2, L22]
•	Particulars placed on the record [P9, L18 – P10, L7]	
3 July 2019	Tahlia Margaret Wiley (complainant)
•	Evidence in chief [P19 – P43]
•	Cross-examination [P43 – P142]
•	Re-examination [P142 – P143] 

Officer Hatherly (officer who served NTA)  
•	Evidence in chief [P145 – P146]
•	Cross-examination [P146 – P146]
•	No re-examination 	
4 July 2019	Officer Palmer (investigating officer)
•	Evidence in chief [P4 – P7]
•	Cross-examination [P7 – P77]
•	Re-examination [P77 – P78]

Anna Wiley (mother)  
•	Evidence in chief [P82 – P100]
•	Cross-examination [P100 – P145] 
•	Re-examination [P145 – P146]	
23 July 2019	Terrence Darby (store employee)
•	Evidence in chief [P27 – P43]
•	Cross-examination [P43 – P102] (questioning was not finalised)	
24 July 2019	Dr Stanley (General Practitioner) - interposed
•	Evidence in chief [P6 – P8]
•	Cross-examination [P9 – P18] 
•	No re-examination
Terrence Darby (continued) 
•	Cross-examination [P19 – P27]
•	Re-examination [P27- P33] 

Ian Thompson (store employee)  
•	Evidence in chief [P34 – P40] 
•	Cross-examination [P40 – P88]
•	Re-examination [P88 – P91]

Eli Michelsons (boyfriend)
•	Evidence in chief [P92 – P96] 
•	Cross-examination [P96 – P125] 
•	No re-examination	
13 August 2019	•	Mention regarding the subpoena of medical material.	
21 August 2019	•	Magistrate ordered that Officer Palmer and Ms Anna Wiley be recalled.	
2 September 2019	•	Mention only.	
24 September 2019	Officer Palmer (recalled)  
•	Cross-examination [P6- P63]
•	Re-examination [P63 – P66]

Anna Wiley (recalled)
•	Cross-examination [P67 – P92] 
•	No re-examination	
25 September 2019	•	Appellant made no case submission [P2 – P50]
•	Magistrate dismissed the no case submission [P50 – P52]
Appellant 
•	Appellant gave evidence [P54 – P74]
•	Cross-examination [P 74 - P94]	
15 October 2019	•	Appellant made a number of applications, which were ultimately refused.	
16 October 2019	•	Appellant’s closing argument [P2 – P50]
•	Crown’s closing argument [P50 – P52]	
6 December 2019	•	Magistrate’s decision 	
ANNEXURE B
LIST OF EXHIBITS
Exhibit No.	Description	Date
Tendered	Tendered By	
1	Photograph of close up of car taken by complainant	3 July 2019 1-40 line 43	Prosecution 	
2	Photograph of man in grey jacket and green hat taken by complainant	3 July 2019 1-41 line 7	Prosecution 	
3	Extract from police notebook of Constable Palmer	4 July 2019 2-33 line 44	Prosecution	
4	Photoboard 	4 July 2019 2-70 line 25	Prosecution	
5	QPS disc – record of interview of video of the identification by Tahlia Wylie of the photoboard	4 July 2019 2-70 line 19	Prosecution	
6	Photograph of car MFI A - 3 July 2019 1-50 line 30	4 July 2019 2-120 line 37	Appellant	
7	Photograph of google maps with markings MFI B- 3 July 2019 1-50 line 36	4 July 2019 2-120 line 38	
Appellant	
8	Photograph of street MFI C- 3 July 2019 1-50 line 42	4 July 2019 2-120 line 39	
Appellant	
9	Photograph of wall with ruler MFI D- 3 July 2019 1-81 line 28	4 July 2019 2-120 line 40	
Appellant	
10	Photograph of scratch on right shoulder of complainant (pink shirt) (glossy) MFI E – 3 July 2019 1-81 line 37	4 July 2019 2-121 line 5	
Appellant	
11	Photograph of scratch on right shoulder of complainant (pink shirt) (non-gloss) MFI F – 3 July 2019 1-82 line 16	4 July 2019 2-121 line 12	Appellant	
12	Photograph of scratch  on right shoulder of complainant (blue and white striped clothing) MFI G –  3 July 2019 1-92 line 42	4 July 2019 2-121 line 27	Appellant 	
13	Disc – CCTV footage dated 27 January 2018 	24 July 2019 2-88 line 9	Prosecution	
14	Email from Anna Wylie dated 24 May 2018	24 Sept 2019 1-63 line 4	Appellant	
15	Statement of witness – Anna Wylie dated 22 October 2018	24 Sept 2019 1-63 line 13	Appellant	
16	Extract from the QPS DERIE Manual Issue 13 Public Edition 26 July 2019 pages 24 – 29 relating to field audio recordings 	24 Sept 2019 1-63 line 28	Appellant	
17	Phone record	25 Sept 2019 1-72 line 40	
Appellant	
18	Photograph of rear car with bike in the back taken at a later date	25 Sept 2019 1-72 line 46	
Appellant	
19	Photograph of looking down Commercial Road towards intersection with Small Street with a tree 	25 Sept 2019 1-73 line 38	Appellant	
20	Scene photos - USB	15 Oct 2019 1-6 line 39	Prosecution