Daniel James Pilmore v Rodney Gavin Anderson [1995] ACTSC 90 (8 August 1995)

SUPREME COURT OF THE ACT

DANIEL JAMES PILMORE v. RODNEY GAVIN ANDERSON
No. SCA26 of 1995
Number of pages - 14
Appeal - Criminal Law - Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Appeal - appeal against conviction in Magistrates Court on charge of common assault - appeal by way of rehearing - claim that Magistrate should, on the evidence, have entertained reasonable doubt of guilt - Brown v Dunn - appeal upheld - conviction and sentence set aside - verdict of acquittal entered accordingly.

Criminal Law - common assault - no new point of principle

Evidence - conflicting eye-witness - examination of Magistrate's evaluation of evidence - one version of evidence preferred to another - requirement for Magistrate to give reasons for the acceptance or rejection of particular evidence - effect of the rule in Browne v Dunn - reasonable doubt of guilt arising from the evidence.

Evidence Act 1971 (ACT), s.57

Domican v R [1992] HCA 13; (1992) 173 CLR 555
Grbic v Pitkethly [1992] FCA 451; (1992) 38 FCR 95
Sharrett v Gill [1993] ACTSC 18; (1993) 113 FLR 316
Browne v Dunn (1894) 6 R 67
Allied Pastoral Holdings P/L v Commissioner of Taxation (1983) NSW LR
O'Connell v Adams (1973) Crim LR 113
ICAC v Cornwall (1993) 116 ALR 97
Laxy v IBM Australia Pty Ltd [1992] FCA 139; (1992) 35 FCR 79
Campbell v Fortey (1986) 24 A Crim R 386
Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472
M v R [1994] HCA 63; (1994) 126 ALR 325
Palmer v Clarke (1989) 19 NSW LR 158
Crowley v Willis (1992) 110 FLR 194

HEARING

CANBERRA, 19 June 1995
8:8:1995

Counsel for the Appellant: Mr J. Purnell

Instructing solicitors: Wood Fussell

Counsel for the Respondent: Mr A. Doig

Instructing solicitors: ACT Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:

1. The appeal be upheld
2. The conviction and sentence be set aside and, in place of them,
there be entered a verdict of acquittal

DECISION

HIGGINS J On 22 December 1994, the appellant, an Officer Cadet at ADFA, was convicted on a charge of common assault by Magistrate Nicholl. The appellant does not complain of the penalty imposed. He does seek to have the conviction set aside and a verdict of acquittal substituted.

2. The information before the learned Magistrate alleged that the appellant

"... on the 2nd December 1993, did assault Gary John Ware".

An information which had, in the alternative, alleged a more serious offence of assault occasioning actual bodily harm was dismissed.

3. Mr Ware's evidence was that he had, on 2nd December 1993, been at Pandora's nightclub in Canberra City. He recalled that he was involved in a scuffle in the upstairs portion of the nightclub. Those involved, including Mr Ware, were ejected. Outside Pandora's, he remembered persons coming at him, he presumed aggressively. His next recollection was of being in an ambulance. He had sustained some injuries.

4. His evidence was, obviously, of no use for the purpose of identifying any person or persons who had assaulted him.

5. Mr Cairo Marchant gave evidence of having been outside Pandora's shortly after 10p.m. on 2 December 1993.

6. He said,

"...I heard a scuffle and that immediately attracted my attention,
some shouting and ...
Q What shouting?
...I heard someone say "Get the fuck out of my face"

7. Having heard that, Mr Marchant said he was caused "to sprint straight over". He was then outside the cinema across the road from the area outside Pandora's . As he crossed the road an ACTION bus pulled into a parking bay in front of him temporarily obscuring his view. He was asked what he then observed. He said (omitting irrelevant parts)

"...I saw a guy with a white shirt pushing - they were up against
the leaning wall that comes out of the entrance to Pandora's, sort
of pushing this guy in the chest...
... at every push - I think it was about four times - I heard it
said - every push it was - he said. "Get the fuck out of my face",
as he pushed this guy backwards and the guy was going backwards...
...About the fourth time there was another guy came around the side
and hit the fellow ...
... a blow to the left side.
And then the gentleman with the white shirt then pushed the bloke
that was just hit again, calling again, and that combination meant
that the bloke being pushed went off balance and fell.
...He fell like a tin soldier, hands down, he just went straight
down...
...then next thing I see the guy with the white shirt who was
pushing side step around and do a full on, like football kick,
straight into the face of the gentleman lying down".

He described the second assailant as having no shirt on. There were three other male persons in the near vicinity, one having a green shirt. The other two were not described.

8. Then two police officers arrived. They "got the guy in the white shirt and the green shirt". Mr Marchant offered his name as a witness to the police.

9. In cross-examination he agreed that he could not exclude the proposition that more than one of the two remaining persons near Mr Ware also had white shirts. All five persons were similar in appearance apart from their shirts.

10. He described the shirt worn by the first assailant as

"... longsleeved white shirt, collared ..."

It was his evidence that the man in the white shirt was one of the two men who were later arrested by police.

11. Mr Marchant did not claim to have had the man in the white shirt who was arrested under observation at all times following the kick to Mr Ware's face.

12. There was other evidence.

13. Ms Belinda Lefevre was another bystander. She described a similar incident involving a man in a white shirt and Mr Ware. However, she saw only one push. The main in the white shirt had, before that push, merely been shouting and pointing at Mr Ware without contact with him. It was that one push, however, which she said, appeared to cause the victim to fall to the ground. The man in the white shirt then kicked the victim in the head. She did not see any other person involved in felling the victim to the ground or in otherwise striking or attacking him.

14. Police then arrived. Her description of what followed was

"...that was when most of the guys ran off and they managed to get
the guy in the white shirt and another guy in a green shirt".
Q: Which guy in the white shirt did they manage to get?
"... that was the one who had done the kicking and the pushing".

She did describe a person with no shirt as having been in the vicinity of Mr Ware but said that he arrived "a little bit later than the other guys" and was merely "waving his arms around". She did not see that person strike the victim at all.

15. None of the other "guys" were more particularly described. In cross-examination she agreed that before the shirtless person arrived there had been five male persons standing around the victim, including the person in the white shirt who had pushed the victim to the ground. She made her observations from about 15 metres away. Her only description of the assailant, apart from his shirt was,

"As tall as this guy here (indicating the appellant).

She was asked in cross-examination,

Q: And you say you have identified somebody in court today. I
suggest that that person did not touch the victim at any stage - at
any stage? ... That's incorrect".

She had described the assailant to police as a man wearing a white T-shirt and said she had pointed to the appellant where he had been standing with a man in a green shirt. These were the persons later arrested by police. That evidence supported the proposition that the appellant had been the assailant she described.

16. Another bystander was called. Her name was Gina Fennell and she was a friend of Ms Lefevre.

17. She said that she had first observed a man wearing a white T-shirt pushing and screaming at the victim.

18. She then turned away. When she looked back the victim was on the ground. The man with the white shirt was kicking him in the head. Then, she said, a group of five or six men"came around". Somebody went over to attend to the fallen man. Ms Fennell then briefly left the scene. She went to see if a group of people she had been expecting had arrived. They had not. On her return she noticed that police were present.

19. Of the male persons at the scene in the vicinity of Mr Ware, she recalled that one had been wearing a white shirt, another a green shirt and another had no shirt. Whilst the man with no shirt "was doing karate sort of hand movements in the air", only the man in the white shirt had struck the fallen man.

20. She said that the man in the white shirt who struck and kicked the victim was one of the men who was later arrested by police.

21. In cross-examination, she denied that the white shirt she observed had been a business shirt but conceded it could have had a collar. She said that she saw at least two kicks delivered by the assailant to the head of the victim.

22. The police officers who attended the scene were also called to give evidence. They were Constables Anderson and Corrigan. They had approached the scene from the toilet block area on the Alinga Street side of the Bus Interchange.

23. Constable Anderson gave evidence that he saw a number of persons apparently being ejected from Pandora's. He heard yelling. He said,

"...that's when I looked over and saw a male person, I now know as
Daniel James Pilmore, the defendant (appellant) now before the
court."

He saw the appellant pushing Mr Ware in the chest area and yelling at him. His view was then obstructed by an ACTION bus for 4-5 seconds.

24. When the bus had passed, Constable Anderson saw Mr Ware lying on the ground with the appellant standing over him, shouting at him. By then, whatever injury had been done to Mr Ware had already happened. It is quite clear that the appellant did not strike Mr Ware after this point in time. Constable Anderson took hold of the appellant. Constable Corrigan took hold of another Officer Cadet Scott McGregor a person nearby who, he said, seemed to be in an aggressive state. Officer Cadet McGregor was, he noted, wearing a green shirt.

25. Constable Corrigan's observations were similar. He added that the appellant when arrested had been wearing a long sleeved white shirt not a screen printed or plain white T-shirt.

26. Surprisingly, neither officer referred in their reports of the incident to the shirtless man although Mr Marchant apparently told them that the man without a shirt had felled or helped to fell Mr Ware by striking him a blow to the head.

27. There was a video-recorded interview with the appellant shortly after his arrest. The camera angle made it difficult, apparently, to tell what sort of shirt the appellant was wearing, whether a business style shirt or a T-shirt. It was, however, white.

28. In that record of interview, the appellant agreed that he had verbally abused and pointed at Mr Ware. He said that he then turned away to see who else was being thrown out of Pandora's. He then saw the victim on the ground. He did not see how he had got there or notice any person strike or kick him. He was still angry with Mr Ware for causing the fracas leading to the ejection from Pandora's of himself and his colleagues. He said that because of that anger he again verbally abused Mr Ware again, telling him to get up and "fuck off".

29. The appellant was then confronted by Constable Anderson and told to stand aside. He did so and was, with Officer Cadet McGregor, placed in custody.

30. In that interview, the appellant denied he had struck Mr Ware. He denied approaching closer than two feet away from him. He conceded that he had walked towards Mr Ware whilst verbally abusing him. He said that Mr Ware had backed away from him as he approached him. He did not see anyone hit Mr Ware, though he accepted that Mr Ware must have been hit during the time he had turned away from him

31. Constable Anderson represented to the appellant during the course of the interview that "I have four independent witnesses" who would implicate him in the assault on Mr Ware..

32. Captain Cooch, a staff member at ADFA, who attended during the interview at the appellant's request, then asked Constable Anderson,

"Who, why, they've all identified Daniel as the...?
He replied ..Yes."

That statement was, as Constable Anderson conceded, untrue. Nothing turns on that point in this case. It should be emphasised, however, that it does not represent an acceptable investigative practice. It did not persuade the appellant to make any relevant admission. If it had, it might have led to a question being raised as to its exclusion.

33. In that state the evidence justified but did not require a finding of guilt. The witnesses differed as to whether the bare-chested man had struck the victim. They differed as to whether the appellant in advancing on and abusing the victim had physically pushed him more than once. They disagreed as to whether the victim had been kicked once or twice. They agreed only that the "man in the white shirt" and no other person had kicked the victim whilst the latter was lying on the ground. They disagreed on the description of the white shirt. However, they were each convinced that the person in the white shirt who kicked the victim was the same person as the person in the white shirt taken into custody by police. That person was undoubtedly the appellant.

34. There was no issue as to the identification of the appellant in the sense in which that issue was discussed in Domican v R [1992] HCA 13; (1992) 173 CLR 555; Grbic v Pitkethly [1992] FCA 451; (1992) 38 FCR 95 and Sharrett v Gill [1993] ACTSC 18; (1993) 113 FLR 316. However, a similar need for care arose because of the possibility that more than one man in a white shirt was involved in actions incorrectly attributed to the appellant.

35. However, the matter did not end there.

36. The appellant gave evidence. He confirmed on oath the truth of the statement he had made to police. He remained unshaken under cross-examination. There was nothing inherently improbable or contradictory in his answers as recorded in the transcript.

37. Accordingly, to be satisfied that the appellant should be convicted, it became necessary not only to reject, beyond reasonable doubt, the hypothesis that the three eye witnesses might have been lying or mistaken as to whether the appellant had kicked Mr Ware but also to conclude that the appellant was, relevantly, lying or mistaken. Given the circumstances, the hypothesis that the appellant was mistaken as to whether he had kicked Mr Ware or not was extremely unlikely.

38. The matter was taken further. Officer Cadet Benedict Boyle was called. He asked for and was granted a certificate pursuant to s.57 of the Evidence Act 1971 (ACT). He was thereby enabled to give evidence inculpatory of himself without that evidence being admissible against him in other proceedings, save for perjury.

39. He gave an account of the incident outside Pandora's involving Mr Ware. After he, Mr Ware and others were ejected from Pandora's he said,

"My shirt was ripped off and Ware was swearing, carrying on, saying
stuff about the Defence Academy and he came towards me in an
aggressive manner - in what I perceived as an aggressive manner and
realised that the trouble he caused upstairs. So I hit him".

Then, he said, Mr Ware fell to the ground. Officer Cadet Boyle asserted that he then kicked Mr Ware and immediately decamped from the scene.

40. He did suggest in cross-examination that the appellant was 5-10 metres away when he struck and kicked Mr Ware, that was inconsistent with the appellant's evidence. However, Officer Cadet Boyle conceded that his attention was focussed on Mr Ware and not on the appellant. His estimate of that distance does not seem to have been a confident one. It would not, by itself, afford sufficient reason for regarding his testimony as inherently improbable.

41. The presence of a person answering Officer Cadet Boyle's description was consistent with the evidence of all three prosecution witnesses. His apparently aggressive behaviour was noticed by all three. His assault on Mr Ware by means of a blow to the head was attested to by Mr Marchant.

42. Officer Cadet Amanda Fielding, also gave evidence. Her evidence related to the events upstairs in Pandora's about which there had been no issue. She said that upstairs Officer Cadet Boyle, albeit responding to Mr Ware's provocation, had behaved aggressively whilst the appellant had not. Little turns on that evidence, however.

43. Officer Cadet Richard Niessl, was a further witness. He was present at Pandora's on the evening of 2 December 1993. He was another person ejected by the bouncers. He saw Officer Cadet Boyle outside. The latter had lost his shirt. He addressed Mr Ware quite aggressively. Officer Cadet Boyle was, he said, "swearing and pointing at" Mr Ware.

44. At that point, Officer Cadet Neissl turned away. When he turned back he saw Mr Ware on the ground. He heard the appellant say "Don't kick him, don't kick him, only a coward would kick a man when he is on the ground".

45. However, it does not seem that these words were directed to Officer Cadet Boyle. They were addressed to Officer Cadet McGregor. He did not see Officer Cadet McGregor kick Mr Ware. It may well be that it had seemed that he intended to do so or might have done so but for being dissuaded by the appellant. Officer Cadet Neissl had not observed the appellant yelling at Mr Ware, but agreed it was "possible" that he had done so.

46. Officer Cadet Jeremy Bensemann was also present at the disputed event. He said that, after the ejection of those persons considered to be part of the disturbance upstairs he had observed a man with no shirt do something to Mr Ware.

47. His description of that event was as follows,

"A bloke - a man with no shirt. He ran up to Mr Weir (sic-Ware).
Mr Weir was talking, or abusing a lot of people, and this guy went
after them and he struck Mr Weir in the face ...twice".

48. Mr Ware then fell to the ground. He next observed the appellant "very close by". He yelled at the man on the ground "indicating that he should leave, get out of the area".

49. Officer Cadet Bensemann agreed in cross-examination that he had recognised the man with no shirt as Officer Cadet Boyle but had not stated that in the affidavit he had sworn and which had been supplied to the prosecution before the hearing. He was not asked for any explanation of that. However, as other material provided to the prosecution had apparently identified Officer Cadet Boyle as the person who had struck and kicked Mr Ware, it is unlikely that this omission could have been regarded as significant.

50. Officer Cadet Bensemann had not observed Mr Ware being kicked by any person.

51. Officer Cadet James Sheiwe was the next witness. He observed the appellant yelling at Mr Ware outside Pandora's. The appellant and Mr Ware were then facing each other and both men were standing.

52. Then, he said

"I saw a person that had been kicked out of Pandora's rush over to
where Mr Ware was and threw a punch and knocked him to the deck".

His view was, to a large measure, obstructed by other persons in the area. However, he did say that, when Mr Ware was struck, the appellant

"...was too far away from him at the time and in a different
direction".

That was inconsistent with the appellant pushing and kicking the victim as or after that other person struck Mr Ware.

53. Officer Cadet Tony Southwood gave evidence that he saw the incident. He said,

"...I do know that they (Mr Ware and the appellant) were saying some
things to each other. The next minute this guy that wasn't wearing
a T-shirt came in and gave Mr Ware a king hit and knocked him on the
ground and then that was about all I saw because then people moved
around and Mr Pilmore did not move any closer to Mr Ware at any
point."

Officer Cadet Luke Warner also gave evidence. He heard the appellant yelling at Mr Ware, telling him to leave the area. Then he said Officer Cadet Boyle come between them yelling at Mr Ware and striking him in the head. He then saw Officer Cadet Boyle run off. He did not see the appellant strike or kick Mr Ware. Neither did he observe Officer Cadet Boyle kick Mr Ware.

54. It is clear from these last five witnesses that each agrees that Officer Cadet Boyle, or a person answering his description, struck Mr Ware and felled him to the ground. None of them saw him kick Mr Ware. However, it is not clear whether they would have been able to see that action if it had then happened. They do not agree on whether Mr Ware was struck in the head by Officer Cadet Boyle once or twice. It was unclear as to whether, when Officer Cadet Boyle struck Mr Ware, the appellant was still engaged in face to face confrontation with Mr Ware or had turned away. That question was not closely explored.

55. Officer Cadet Boyle expressly conceded that he had kicked Mr Ware. No-one saw more than one person kick Mr Ware. Ms Fennell suggested that there had been two kicks delivered by the same person. Officer Cadet Neissl formed the opinion that Officer Cadet McGregor had manifested an intention to kick Mr Ware but was apparently dissuaded by the appellant from doing so. The appellant denied kicking Mr Ware. Six witnesses gave evidence that would be consistent with that denial.

56. Thus, not only was it necessary, in order to convict the appellant, for his Worship to reject his evidence, he had also to reject the testimony of those witnesses whose evidence was inconsistent with the appellant having kicked Mr Ware whilst he was on the ground.

57. In his decision, his Worship reviewed the evidence quite carefully. However, the only part of the decision which reveals his Worship's evaluation of that evidence is, relevantly, to be found in the following passages.

"As Mr Purnell pointed out more than once it is possible for
honest witnesses to be mistaken. The first comment that one would
make about the evidence in this case is they cannot all be right.
If one were to look at this in a purely superficial way just
treating the evidence at face value, one would have to say that one
could not be satisfied beyond reasonable doubt. However, the court
has a duty to do more than just take things at their face value.
The court has a duty to assess the evidence and to make a decision.
If it were a jury they would be told it is for them to decide which
evidence they accept, what parts of the evidence is accepted. It is
possible to accept part of somebody's evidence and not to accept
other parts of it.

That is the situation that I am in too. I have the same position as
the jury. That it is for me to determine what evidence I accept and
what evidence I reject. It has to be said that the challenge to the
evidence given by Mr Marchant was made partly on the basis of his
description of the shirt. Partly on the basis of his assertion that
the damage to Mr Ware's face was to the right side when it is clear
from the evidence that it was the left side. The evidence of the
girls was criticised in part on the basis that they had
collaborated. The girl, LeFebre was over keen in identifying Mr
Pilmore in court. Let me make it clear that I do not regard her
identification in court as identification of Mr Pilmore as the
person who did it.

I do take it into account in terms of assessing her evidence for the
critical reason that Mr Purnell put. I carefully read Domican's
case which was the one that Mr Purnell expressly referred to on the
question of identification. This is not a case like the normal
identification of somebody who sees something happen who has never
seen somebody before and is called on later on to identify them.
This is a case in which on the prosecution's case, a person who is
identified as having a white shirt, T shirt by two of the
identifying witnesses and as the person who was taken away by the
police.

Now, there is not any doubt about Mr Pilmore being there in a white
T shirt and that he was taken away by the police. There is also no
doubt, I accept the police evidence about this, that he was standing
over Mr Ware immediately the police had the chance to view the scene
after the bus had passed from their sight. Taking the whole of the
evidence and selecting pieces from the evidence I make this finding,
these findings."

58. His Worship then sets out his view of the facts. That was,

"I am satisfied beyond reasonable doubt that Mr Pilmore, in
fact, physically pushed Mr Ware. I am satisfied beyond reasonable
doubt that while he was doing that at a stage shortly before Mr Ware
fell to the ground that Mr Boyle ran over and delivered a punch to
Mr Ware and that following that punch or almost coincidental with
it, there was another push by Mr Pilmore and that Mr Ware went to
the ground. I do not just take one person's evidence in relation to
identifying Mr Pilmore as the person in the white T shirt. Mr
Marchant was clearly wrong about the description of the shirt in
terms of whether it had long sleeves and a collar. However, the
essential feature was whether the person in the white shirt was the
one who kicked Mr Ware.

I am satisfied beyond reasonable doubt that firstly, that a person
in a white shirt did that, kicked Mr Ware in the face. I am
satisfied on the evidence before me notwithstanding Mr Boyle's
assertion that it was him, which I do not believe, that it was Mr
Pilmore who kicked Mr Ware in the face."

59. His Worship was not satisfied that injuries sustained by Mr Ware could be attributed to the kick rather than to the punch which he accepted had been struck by Officer Cadet Boyle. He, therefore, dismissed the aggravated assault charge but found the common assault charge proved.

60. There is no real indication as to the reason for the choices made by his Worship to disbelieve at least part of the evidence of each of the witnesses who observed the event involving both Officer Cadet Boyle the appellant and Mr Ware. The proposition that there was a push by the appellant to Mr Ware after he was punched by Officer Cadet Boyle was attested to only by Mr Marchant. It is not supported by any other witness who observed the blow struck by Officer Cadet Boyle to Mr Ware's head. However, his Worship gave no indication as to his reasons for preferring, if he did, the evidence of Mr Marchant over that of other relevant witnesses.

61. The learned Magistrate did have a view of the area. However, whilst that might have permitted him the more readily to accept the evidence of the police witnesses, it could not have assisted to evaluate the other evidence. The police evidence was entirely consistent with the evidence both of the prosecution civilian witnesses as well as that of the appellant and Officer Cadet Boyle. The incident was very brief. It is likely that it lasted less than 30 seconds. That part of the incident which commenced with Officer Cadet Boyle striking Mr Ware and ending with Mr Ware being kicked could not have taken more than 5 seconds.

62. The grounds of appeal are four fold. The first three are general and, in my view, simply amount to a complaint that the learned Magistrate should, on the evidence, have entertained a reasonable doubt. The fourth ground is more specific. As explained by appellant's counsel, it complains that Officer Cadet Boyle's evidence that it was he who kicked Mr Ware and not the appellant was rejected without prosecuting counsel having suggested in cross-examination that Officer Cadet Boyle's account of having done so was false.

Was it fair to reject Officer Cadet Boyle's evidence without cross-examination by prosecuting counsel suggesting it was false?
63. That it would be unfair to do so is said to be based upon Browne v Dunn (1894) 6 R 67 per Lord Herschell

(70)"...if you intend to impeach a witness you are bound to whilst
he is in the box to give him an opportunity of making any
explanation".

However, there is an important qualification to that supposed rule.

64. As Hunt J said in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSW LR 16,

"It has in my experience always been a rule of professional practice
that, unless notice has already clearly been given of the
cross-examiner's intention to rely upon such matters, it is
necessary to put to an opponent's witness in cross-examination the
nature of the case upon which it is proposed to rely in
contradiction of his evidence, particularly where that case relies
upon inferences to be drawn from other evidence in the proceedings".

In this case, the defence had provided notice of, inter alia, Officer Cadet Boyle's proposed evidence. The prosecution knew, when it commenced to call its evidence, that it would be asserted that Officer Cadet Boyle struck Mr Ware and kicked him rather than the appellant. The prosecution witnesses were, consistently with that defence, challenged as to the accuracy of their evidence. Whilst there was no formal proposition put to Officer Cadet Boyle by way of direct challenge to his evidence, it is clear enough that the prosecution intended it to be in issue.

65. Of course, as Hunt J pointed out in Allied Pastoral, it would still be unfair for a party to appear to accept evidence, even though formally in issue, by the manner in which cross-examination is conducted. A failure to challenge a witness so as to suggest fairly and squarely fabrication or inaccuracy could have that effect. I see nothing in the prosecutor's cross-examination in this case which had, or appeared to have had, that effect. Counsel for the appellant does not suggest that he refrained from calling any evidence or making any submission because the prosecutor had failed in express terms to challenge Officer Cadet Boyle's evidence.

66. One must also bear in mind that qualified expectations as to the conduct of cross-examination may well apply in summary proceedings - see O'Connell v Adams (1973) Crim. LR 113.

67. In ICAC v Cornwall (1993) 116 ALR 97, Abadee J at 118 referred to the so-called "Rule in Browne v Dunn" as follows,

"The rule in Browne v Dunn has been recently described as one
designed to assist the judge in a process of reasoning, and is not
one intended to provide "an artificially inflexible rule to be added
to the obstacle course of litigation" : Ghazal v Government
Insurance Office of New South Wales (1992) 29 NSWLR 336 per Kirby
Pt 345.

In Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Samuels JA
(at 587-9) when considering the many authorities dealing with the
rule in Browne v Dunn, expressed the view that it was not the law
that evidence unchallenged in cross-examination must be accepted".

I respectfully agree. It reflects what Ryan J and I said in Laxy v IBM Australia Pty Ltd [1992] FCA 139; (1992) 35 FCR 79, 86-7.

68. It follows that I am not persuaded that it was unfair to the appellant for his Worship to have rejected the relevant part of Officer Cadet Boyle's evidence even if it was not sufficiently challenged in cross-examination.

Is there a reasonable doubt as to the appellant's guilt?
69. The question is formulated thus because this is an appeal by way of rehearing - see Campbell v Fortey (1986) 24 A Crim. R 386. It is not, however, a rehearing de novo. I am denied the advantage, if there was one, of seeing and hearing the witnesses who gave oral testimony.

70. The process of review I am bound to follow is that approved by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472, 479:

"...a finding of fact by a trial judge, based on the credibility of
a witness, is not to be set aside because an appellate court thinks
that the probabilities of the case are against - even strongly
against - that finding of fact. If the trial judge's finding
depends to any substantial degree on the credibility of the witness,
the finding must stand unless it can be shown that the trial judge
has failed to use or has palpably misused his advantage or has acted
on evidence which was "glaringly improbable".

Deane and Dawson JJ agreed with the majority decision, pointing out, however, that even where the appellate court has not seen and heard the witnesses, 480,

"...the court cannot excuse itself from the task of weighing
conflicting evidence and drawing its own inferences and
conclusions".

There are obvious differences when applying that process of review in a criminal matter where the complaint is that the court appealed from failed to perceive a reasonable doubt which it ought to have entertained The same disadvantage in respect of oral evidence remains, of course, but the reference to "the probabilities of the case" needs modification. Where the appeal is in a criminal case, the prosecution case must be capable of acceptance beyond reasonable doubt and defence evidence, if inconsistent with guilt, must be capable of rejection with similar certainty.

71. That I take to be the effect of MvR [1994] HCA 63; (1994) 126 ALR 325 It is sufficient to refer to the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ, 329,

"In most cases a doubt experienced by an appellate court will be a
doubt which a jury ought also to have experienced. It is only where
a jury's advantage in seeing and hearing the evidence is capable of
resolving a doubt experienced by a court of criminal appeal that the
court may conclude that no miscarriage of justice occurred. That is
to say, where the evidence lacks credibility for reasons which are
not explained by the manner in which it was given, a reasonable
doubt experienced by the court is a doubt which a reasonable jury
ought to have experienced. If the evidence, upon the record itself,
contains discrepancies, displays inadequacies, is tainted or
otherwise lacks probative force in such a way as to lead the court
of criminal appeal to conclude that, even making allowance for the
advantages enjoyed by the jury, there is a significant possibility
that an innocent person has been convicted then the court is bound
to act and to set aside a verdict based upon that evidence."

Whilst the reference to the advantage enjoyed by a jury should, in the case of an appeal to this Court from a Magistrate, be regarded as a reference to the Magistrate, there is a qualification. Unlike a jury a magistrate has a duty to give reasons for finding the facts in a particular way rather than another. A party is entitled to be given reasons as to why the evidence he or she has relied upon is wholly or partially accepted or rejected. Whilst relying on the analogy with a jury's power to accept or reject the evidence of challenged witnesses his Worship did not address this important matter.

72. It is particularly important where the matter at issue is the existence or not of the very fact essential to guilt or innocence.

73. In this case, that issue was whether the appellant had kicked Mr Ware whilst the latter was lying on the ground. The prosecution relied on that kick as the assault in question.

74. The duty to give proper reasons was affirmed by the Court of Appeal (NSW) in Palmer v Clarke (1989) 19 NSWLR 158. It follows that it is not acceptable, as has been said in this Court on previous occasions, for a magistrate simply to announce that he or she accepts or rejects the evidence of a witness without explaining why. This is particularly important when only part of a witness' evidence is accepted or rejected. It is also necessary for an appellate court to know whether the rejection or acceptance of the evidence of a witness is on the basis of demeanour or otherwise - see also Crowley v Willis (1992) 110 FLR 194, 200 per Gallop J.

75. In this case the prosecution witness whose evidence most closely reflects the magistrate's findings is Mr Marchant. The other two prosecution witnesses not only conflict with him on material facts but also with each other. A thorough reading of their evidence leaves open the possibility of error, albeit that each of those witnesses were doing their best to be accurate and truthful and may have believed sincerely in the accuracy of their observations.

76. Assuming his Worship was persuaded that Mr Marchant seemed both truthful and essentially accurate, it was necessary for him also to be positively persuaded that at least the appellant and Officer Cadet Boyle, at least, had lied. He needed also to be satisfied that the other witnesses who did not support the prosecution case were at least in error even if trying to be truthful. However, if his Worship had a view about that it is not expressed. There is nothing in the evidence given by the appellant or his witnesses which lends support to a conclusion that they were fabricating their evidence. Their evidence was not inherently improbable, though there were inconsistencies and contradictions in the evidence of some of them. That is not, of itself, indicative of fabrication. It is consistent with the usual range of differences between eye witnesses. If the demeanour of those witnesses or any of them in some way betrayed them his Worship does not refer to it.

77. In my opinion, as the tribunal of fact, his Worship, should have entertained a reasonable doubt in the light of, at least, the evidence of the appellant and Officer Cadet Boyle. I have such a doubt.

78. The appeal will be upheld. I set aside the conviction and sentence. Instead there will be a verdict of acquittal. The information is dismissed accordingly.

79. I will hear the parties as to costs.