[2026] SASC 3

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE SMOLICZ) MCCRM-24-002165 Appellant: COMMISSIONER OF POLICE In Person Prosecution: MS T COSTI WITH MS J HOULAHAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: BOM In Person Counsel: MR S JOYCE - Solicitor: PERROTTA LEGAL Hearing Date/s: 18/06/2025 File No/s: SCCRM-25-010453 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. POLICE v BOM [2026] SASC 3 Judgment of the Honourable Justice Gray 21 January 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM CRIMINAL LAW - PROCEDURE - VERDICT - ALTERNATIVE VERDICTS MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT This is an appeal by the Commissioner of Police concerning an acquittal of the respondent, BOM, in the Magistrates Court of three counts of aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The respondent was at all relevant times a police officer and the assault was allegedly committed in the course of effecting an arrest of the complainant. In the course of the arrest, it was alleged that the respondent cause harm by: 1. Punching the complainant to the side of his face six times in rapid and forceful strikes (count 1); 2. Whilst the complainant was laid on the ground on his side, placing his boot on top of the complainant’s head (count 2); and, 3. Kneeing the complainant to the face whilst he was on the ground face-down and handcuffed (count 3). There was no dispute at trial that the respondent intentionally used force against the complainant in the course of his duty as a police officer in effecting the arrest. The lawfulness of that use of force, whether the use of force was reasonably necessary, and whether harm was caused by the use of force, were at issue in the trial. -- 1 of 19 -- The appellant complains in the first instance that the learned Magistrate erred in the approach to proof of the element that the respondent caused harm to the complainant. The appellant contends on appeal that, the learned Magistrate conflated the concept of harm with the concept of a specific injury and that there was error in the learned Magistrate's consideration of whether the respondent’s assault was the sole, as opposed to substantial, cause of the harm to the complainant. In the alternative to the above, the appellant contends that the learned Magistrate, being satisfied of the elements of an offence of aggravated assault, ought to have amended the information to charge the respondent with three counts of aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) and returned a verdict convicting the respondent of three counts of aggravated assault. The respondent contends that the learned Magistrate’s assessment of harm was not erroneous and that the test was both correctly stated and applied. As to the complainant about the amendment of the information, the respondent submitted that the learned Magistrate was not required to make such an amendment, particularly in circumstances where that course was not put before the learned Magistrate at trial and there was no invitation by the prosecution for the Magistrate to consider the offence of aggravated assault. Held, dismissing the appeal: 1. The reference to a “causative nexus” is to be read as a reference to the requirement for the prosecution to prove beyond reasonable doubt that the charged acts as particularised caused the complainant harm: at [48]; 2. It was a relevant consideration in applying the correct legal test for the learned Magistrate to consider the extent to which harm to the complainant was caused by the actions of others involved in the circumstances of the offending. The learned Magistrate's reasons do not demonstrate that the learned Magistrate considered the respondent’s conduct needed to be the sole cause of the harm to the complainant. Ground 1 of the appeal is dismissed: at [53]-[55]; 3. Whilst the learned Magistrate had power to amend the information under s 181 of the Criminal Procedure Act 1921 (SA), there was no duty in the circumstances of this case on the learned Magistrate to amend the information and return a verdict in respect of an offence with which the respondent was not charged. Ground 2 of the appeal is dismissed: at [65]-[66]; and, 4. In any event, the principles of double jeopardy would justify this Court declining to intervene in respect of ground 2: at [69]. Criminal Law Consolidation Act 1935 (SA) ss 5AA and 20; Criminal Procedure Act 1921 (SA) s 181; Joint Criminal Rules 2022 (SA) r 191.1; Magistrates Court Act 1991 (SA) s 42; Police Act 1998 (SA) s 65, referred to. -- 2 of 19 -- POLICE v BOM [2026] SASC 3 Criminal: Magistrates Appeal 1 GRAY J: By information dated 7 January 2024, the respondent was charged with three counts of aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). This is an appeal by the Commissioner of Police concerning a verdict of acquittal entered against the respondent, BOM, on 21 February 2025 in the Magistrates Court in respect of those three charges. 2 The appellant contends on appeal that the learned Magistrate conflated the concept of harm with the concept of a specific injury and that there was error in his Honour’s consideration of whether the respondent’s assault was the sole, as opposed to substantial, cause of the harm to the complainant. If that ground is not made out, the appellant contends in the alternative that in circumstances where the elements of the lesser offence of aggravated assault were made out in respect of each count, contrary to s 20(3) of the CLCA, the information ought to have been amended1 by the learned Magistrate and the respondent convicted of the lesser offences on each count. 3 The respondent filed a notice of alternative contention supporting the learned Magistrate’s decision and stating that the decision should also have been made on the following grounds:2 1. In respect of each count, on the whole of the evidence, the proper conclusion was that the use of force by the Respondent was reasonable and proportionate in the circumstances such that the charged acts were lawful; 2. In the alternative, on the whole of the evidence, the defence of self-defence was made out such that the charged acts were lawful; 3. In the alternative, in respect of each count, on the whole of the evidence the Appellant did not prove that the Respondent was acting dishonestly in respect of the charged acts such that the immunity in s 65 of the Police Act 1998 (SA) applied in respect of the Respondent’s conduct. 4 The respondent contends on appeal that the learned Magistrate did not err in his Honour’s verdict. Specifically, it was submitted that the treatment of the legal test for causation did not disclose error and that in circumstances where the Crown did not invite the learned Magistrate at trial to amend the information, this Court should not allow such a course on appeal even if error is identified. 1 Pursuant to s 181 Criminal Procedure Act 1921 (SA). 2 Notice of Alternative Contention dated 8 April 2025 (FDN 4). -- 3 of 19 -- [2026] SASC 3 Gray J 2 5 The matters raised in the notice of alternative contention are said to arise and fall to be determined in the event that this Court finds error in the approach of the learned Magistrate.3 This approach is accepted by the appellant.4 Background 6 By information dated 17 January 2024, the respondent was charged with three counts of aggravated assault causing harm, contrary to s 20(4) of the CLCA, said to have been committed on 6 December 2020 at Novar Gardens. The respondent at all relevant times was a police officer. The respondent was alleged to have, in the course of effecting a lawful arrest upon Mr Newchurch (the complainant), committed three separate assaults which caused harm. Those offences were aggravated by the respondent abusing his position of authority as a police officer in the commission of the offences. The prosecution case 7 The prosecution case at trial, which was largely undisputed,5 was summarised by the learned Magistrate by reference to the evidence at trial, and the following summary is drawn from his Honour’s recitation of the facts.6 8 On 6 December 2020, two police officers, Sergeant Allanson and Constable Toth, were on uniformed patrol and attended a tasking at Novar Gardens concerning an alleged breach of bail. They arrived at the relevant address at 8:20pm. The neighbour advised that the person they were looking for was not residing at the address. Sergeant Allanson and Constable Toth proceeded to enter into the backyard and located a motorcycle with the ignition on and a warm engine. The registration number was checked, and a suspicion was formed by Constable Toth that the motorcycle was stolen. The complainant arrived holding keys to the motorcycle and a suspicion was formed by Constable Toth that the complainant had stolen the motorcycle. Sergeant Allanson and Constable Toth attempted to arrest the complainant, but he resisted by waving his arms and raising his voice, eventually pushing against them and absconding.7 9 A pursuit on foot ensued. Constable Toth advised of the pursuit via the police communications system. Constable Toth could not keep up with Sergeant Allanson and the complainant. Sergeant Allanson was yelling at the complainant to stop and lay on the ground. The complainant resisted and walked towards Sergeant Allanson. Sergeant Allanson discharged OC spray towards the complainant, but the complainant remained uncooperative. Constable Toth eventually caught up to the pair and the complainant was laid on his back outside 3 Respondent’s Written Submissions dated 12 June 2025 (FDN 9) at 2, [9]-[12] (‘RWS’). 4 AWS at 2, [5]. 5 Appeal Book (FDN 8) at 89 (Police v BOM [2025] SAMC 17 at 2, [7] (‘Verdict’)) (‘AB’). 6 AB at 89-94 (Verdict at 2-7, [7]-[39]). 7 AB at 89 (Verdict at 2, [8]). -- 4 of 19 -- [2026] SASC 3 Gray J 3 premises at Montreal Avenue, Novar Gardens. A further attempt to arrest the complainant was made but resistance continued.8 10 In short, the complainant remained laid on the ground but continued to resist. In the course of effecting arrest, both Sergeant Allanson and Constable Toth sustained injuries. Sergeant Allanson sustained injuries including cuts and bruising to both hands, scratches on both arms and soreness, and required surgery to his knees. Constable Toth was bitten on her arm.9 11 Police communications remained informed of the developing situation and eventually a “code 801” was broadcast, which directed all police officers in the area to render immediate assistance to the pair. At this point, resistance by the complainant continued and Constable Toth had only managed to apply cuffs to one hand. 12 The respondent attended at Montreal Avenue with Constable Butler in response to the code 801. Constable Butler observed a confrontation and that Sergeant Allanson and Constable Toth were attempting to apply handcuffs to the complainant. Constable Butler immobilised the complainant by placing his knee on the complainant’s head. At this point, the respondent approached and directed Constable Butler to “get out the way”. Constable Butler grabbed the complainant by the legs, and the respondent came to the head of the complainant.10 13 The respondent is shown on the closed-circuit television (‘CCTV’) footage to come to the side of the complainant and punch the complainant to his face with his fist in “rapid and forceful” strikes, a total of six times. The respondent also kneed the complainant twice in the head. This is the conduct comprising count 1. 14 Two further officers, Constables Nicolaou and Cassar, arrived at the scene and saw the complainant was resisting arrest. Two further officers, Officers Sandford and Williams, arrived and were involved in the re-handcuffing of the complainant. A total of six officers were restraining the complainant at this point in time and the complainant was handcuffed. The respondent stood at the side of the complainant’s head with the sole of his boot pressing the complainant’s face into the concrete driveway. The respondent then changed his position and pressed the sole of his left boot to the right side of the complainant’s head with the left side of the complainant’s face pressed into the concrete driveway. The CCTV footage indicated that this conduct continued for 10-15 seconds. This is the conduct comprising count 2.11 8 AB at 89-90 (Verdict at 2-3, [9]-[13]). 9 AB at 90 (Verdict at 3, [14] and [17]). 10 AB at 91 (Verdict at 4, [22]-[25]). 11 AB at 92 (Verdict at 5, [28]-[31]). -- 5 of 19 -- [2026] SASC 3 Gray J 4 15 The respondent then kneed the complainant in the face whilst the complainant was face down toward the ground and the complainant was handcuffed. This conduct comprises count 3 and is shown on the CCTV footage.12 16 Police awaited arrival of a cage car, and the complainant was treated for the OC spray on his face in the interim. The complainant was eventually arrested, placed in the cage car and transferred to the Port Adelaide Police Station cells, where he was attended upon by nurses. The Officer-in-Charge deemed that a medical assessment of the complainant was necessary as to his fitness for custody. The complainant was conveyed to the Queen Elizabeth Hospital.13 Issues in dispute at trial 17 As the learned Magistrate stated:14 It is not in dispute that the defendant intentionally used force against the Complainant and that the force used was in the course of his duty as a police officer when assisting other police officers during the lawful arrest of the Complainant. The issues for determination are: 1. Whether the acts of force were justified or excused by law; 2. Whether the acts of force were reasonably necessary for the protection of the defendant, or the protection of other police officers; 3. Whether the defendant’s actions caused harm to the Complainant. If the defendant is found to have acted unlawfully, can he invoke the statutory immunity conferred upon him by s 65(1) of the Police Act 1988. (citations omitted) 18 That the respondent voluntarily applied force to the complainant was not in dispute and the learned Magistrate made findings accordingly.15 The circumstance of aggravation, also being undisputed, was found proven beyond reasonable doubt.16 19 The learned Magistrate found that whilst the respondent was effecting an arrest at the time of the alleged offences,17 his acts were unlawful, in that they were not done in self-defence or defence of another.18 The issues of lawfulness and self-defence may arise on the appeal by virtue of the notice of alternative contention, should the appellant succeed in establishing any ground of appeal. 12 AB at 92 (Verdict at 5, [32]). 13 AB at 93 (Verdict at [34]-[38]). 14 AB at 88 (Verdict at 1, [2]-[4]). 15 AB at 103-4 (Verdict at 16-7, [95]-[99]). 16 AB at 122-3 (Verdict at 35-6, [186]-[188]). 17 AB at 104 (Verdict at 17, [102]). 18 AB at 113 (Verdict at 26, [139]-[140]), 119 (Verdict at 32, [170]-[172]) and 122 (Verdict at 35, [183]- [185]). -- 6 of 19 -- [2026] SASC 3 Gray J 5 20 The learned Magistrate did not find that the application of force by the respondent caused harm to the complainant. The learned Magistrate found that the prosecution had failed to exclude as a reasonable possibility that the injuries in relation to each count were caused by the actions of other police officers.19 These findings concerning harm are contested by the appellant on this appeal. 21 Given the elements of the offence were not made out beyond reasonable doubt, the learned Magistrate did not turn to consider the statutory immunity conferred by s 65 of the Police Act 1998 (SA) (‘Police Act’).20 The availability of the statutory immunity is raised in the notice of alternative contention. Principles regarding Crown appeals against acquittals 22 The appellant appeals pursuant to s 42(1) of the Magistrates Court Act 1991 (SA). This is an appeal by way of rehearing.21 23 The Court is required to conduct a review of the evidence before the learned Magistrate whilst, at the same time, making due allowance for the advantage of the learned Magistrate in seeing and hearing the evidence being given at trial.22 Through that prism this Court is to form its own view as to the appropriate outcome, however, this Court is not to substitute its own view unless satisfied that error has been occasioned in the Court below.23 24 This is an appeal by the Crown against an acquittal. In such appeals, the principles concerning double jeopardy and the undesirability of exposing a defendant to double jeopardy are relevant in determining the manner of disposition of the appeal. An appellate court may exercise its discretion not to intervene in a verdict of acquittal notwithstanding the merits of the appeal.24 25 It is well-established that restraint must be exercised by an appellate court in relation to appeals by the Crown against acquittals.25 Such appeals will be allowed only “in the clearest and most compelling circumstances to correct manifest error.”26 19 AB at 129 (Verdict at 42, [216]). 20 AB at 129 (Verdict at 42, [217]). 21 Joint Criminal Rules 2022 (SA) r 191.1(1). 22 Martin v Department for Transport, Energy and Infrastructure (SA) [2010] SASC 141; (2010) 269 LSJS 403 at 410, [38] (White J). 23 Police v Kriticos [2016] SASC 28 at [27] (S Doyle J). 24 Police v Smith [2025] SASCA 37 at [91] (S Doyle JA and Stein AJA, David JA dissenting). 25 R v Brougham [2015] SASCFC 75; (2015) 122 SASR 546 at 561-2, [49] (Peek J, Gray and Nicholson JJ agreeing); R v Fitzgerald [2023] SASCA 34; (2023) 307 A Crim R 101 at 110-5, [34]-[55] (S Doyle, Bleby and David JJA). 26 Police v TJ [2025] SASC 73 at [76] (Stein J), referring to Nicholson J in Police v Baker [2015] SASC 110; (2015) 123 SASR 468 at 470-1, [6]. -- 7 of 19 -- [2026] SASC 3 Gray J 6 Submissions of the parties Ground 1 26 In respect of ground 1, the appellant submitted that the learned Magistrate conflated the concept of harm with the concept of a specific injury and that there was error in his Honour’s consideration of whether the respondent’s assault was the sole, as opposed to substantial, cause of the harm to the complainant. 27 The appellant submitted that the learned Magistrate applied the wrong test to the question of whether the prosecution had proved that the respondent caused harm to the complainant, in that the learned Magistrate “applied the wrong test in both identifying it, or failing to identify it and in its application.”27 The appellant accepted that the learned Magistrate identified the correct statement of law in the first two sentences of paragraph [203], however, the appellant contends that the learned Magistrate then stated the wrong test in the last sentence of paragraph [203], and applied the wrong test in paragraphs [204] to [216]. The error is said to be identifiable in the use of the phrase “causative nexus”.28 28 The respondent submitted that the prosecution at trial sought to rely upon the multiplicity of injuries that it said constituted “harm”. The prosecution submitted at trial that, consequent upon those injuries, the issue of causation was obvious.29 The respondent submitted that the respondent’s case at trial was that the conduct of Sergeant Allanson and Constable Toth prior to the respondent’s arrival included delivering strikes to the complainant’s face. It was also submitted that the complainant was bleeding prior to the respondent arriving. The respondent had submitted at trial that given the time the complainant was on the ground, with his face making contact with it, the actions of any one of the restraining police officers could have caused or contributed to the injuries to the face.30 29 The respondent submitted that the learned Magistrate correctly stated the law concerning causation at paragraph [203].31 The respondent submitted the learned Magistrate correctly stated the relevant test and correctly applied that test, particularly at paragraphs [210] to [217]. The respondent submits that there is no basis to find that the learned Magistrate proceeded on the basis the prosecution was required to prove that that the respondent caused a specific injury, because the reasons do not admit of that conclusion.32 Further, the respondent submits that nowhere in the learned Magistrate’s reasons did his Honour purport to find that the conduct of the respondent was required to be the sole cause of the harm.33 27 Appeal Transcript dated 18 June 2025 at T75.11-3 (‘AT’). See also AT at T74.25-6. 28 AT at T76.25-7. 29 RWS at 5, [30]. 30 RWS at 6, [33]. 31 RWS at 7, [47]. 32 RWS at 8, [56]. 33 RWS at 9, [60]. -- 8 of 19 -- [2026] SASC 3 Gray J 7 Ground 2 30 In respect of ground 2, the appellant contends that the learned Magistrate ought to have amended the information to reflect the charge that the learned Magistrate found proved on the evidence presented at trial.34 This contention is advanced notwithstanding that the appellant did not invite the learned Magistrate to amend the information at trial.35 31 The appellant points to the learned Magistrate having found proven beyond reasonable doubt the elements of aggravated assault, contrary to s 20(3) of the CLCA, with respect to each of the acts the subject of the charges. The appellant accepts that this would then require a consideration of the immunity in s 65 of the Police Act. The appellant identifies that the learned Magistrate found the following in respect of each count: a. That the respondent applied force to the complainant as alleged;36 b. That the application of force by the respondent was voluntary;37 c. That the application of force by the respondent was unlawful (considering both whether the respondent was acting in defence of another or self defence, or whether the application of force was necessary to affect the complainant's arrest);38 and d. That the respondent abused his position of authority (the aggravating feature).39 32 The appellant seeks on this appeal that this Court, exercise the power to amend the information and return a finding of guilt on an amended information. 33 The respondent contends that the learned Magistrate was not asked to amend the information at trial.40 The respondent states that the appellant did not apply to amend the information, even though the appellant was on notice throughout the trial that the element of causation of harm was in issue, and that the learned Magistrate had raised a number of issues with the appellant concerning causation.41 34 AWS at 8, [35]. 35 AWS at 8, [35]. It is acknowledged that the prosecution did not invite the learned Magistrate to amend the Information at trial. The exercise of the power is not however conditional on application: Ayles v The Queen [2008] HCA 6; (2008) 232 CLR 410 at 435, [80]-[81] (Kiefel J, Gleeson CJ and Heydon J agreeing). 36 AB at 103-4 (Verdict at 16-7, [96]-[98]). 37 AB at 104 (Verdict at 17, [99]). 38 AB at 113 (Verdict at 26, [139]), 119 (Verdict at 32, [170]- [172]) and 122 (Verdict at 35, [181]-[185]). 39 AB at 122-3 (Verdict at 35-6, [186]-[188]). 40 RWS at 10, [70]. 41 RWS at 10, [72]. -- 9 of 19 -- [2026] SASC 3 Gray J 8 34 The respondent, relying upon Police v Smith,42 submits that the learned Magistrate did not err in failing to amend the information of his Honour’s own volition in light of the fact of the appellant’s forensic choice to proceed as it did. 35 The respondent further contends that this Court should not now amend the information on the basis that having not raised the matter in the trial court, it would be unfair, in the legal sense, for the prosecution to now seek to fix its case by belatedly seeking an amendment from this Court. The respondent submits that the appellant is bound by its conduct in the trial court and relies upon the principles of double jeopardy.43 Consideration Ground 1 36 Harm for an offence contrary to s 20(4) of the CLCA is governed by the common law. Harm at common law is defined as any hurt or injury which interferes with the health or comfort of a victim, which is not so trivial as to be wholly insignificant.44 37 It was not in dispute between the parties on this appeal or at trial that the legal test for causation is that the alleged acts were a “substantial cause” of harm. The prosecution did not need to prove that the actions of the respondent were the sole cause of the harm to the complainant; rather, the prosecution must prove that actions of the respondent were a substantial or significant cause of the harm alleged.45 In the context of a conviction for murder, Deane and Dawson JJ in Royall v The Queen held:46 Of course, there may be no single cause of the death of the deceased, but if the accused's conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder. 38 In this case, the prosecution needed to prove firstly, that harm, as defined at common law, was caused to the complainant. The prosecution also had to prove that the actions of the respondent, as alleged the subject of each count, were a substantial or significant cause of that harm. 39 The appellant’s case at trial was that the acts the subject of the charges caused injury to the complainant.47 The prosecution proceeded on the basis that the inferences were capable of being drawn from the acts depicted on the CCTV 42 Police v Smith [2025] SASCA 37 at [88] (S Doyle JA and Stein AJA, David JA dissenting). 43 See Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 303-4 (Brennan, Deane, Dawson and Gaudron JJ) and 307-8 (McHugh J); Police v Smith [2025] SASCA 37 (S Doyle JA and Stein AJA, David JA dissenting). 44 R v Chan-Fook [1994] 1 WLR 689 at 694 (Hobhouse LJ, Judge and Bell JJ). 45 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 411 (Deane and Dawson JJ); Swan v The Queen [2020] HCA 11; (2020) 269 CLR 663 at 674, [24] (Bell, Keane, Nettle, Gordon and Edelman JJ). 46 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 411 (Deane and Dawson JJ). 47 AWS at 5, [21]. -- 10 of 19 -- [2026] SASC 3 Gray J 9 footage and the evidence of witnesses that each charged act substantially contributed to the totality of harm caused to the complainant.48 40 The asserted error in the learned Magistrate’s reasons is said to be, firstly, that the learned Magistrate erred in his Honour’s analysis of the “causative nexus”, in that the learned Magistrate conflated the question of whether the respondent caused the complainant specific injury, with whether the prosecution had proven the respondent caused the complainant harm, as required pursuant to s 20(4) of the CLCA (ground 1(a)). The learned Magistrate is said to have further erred in considering, in effect, whether the prosecution had proven the respondent’s assault was the sole cause of the harm, rather than considering whether the prosecution had proven the respondent’s assault was a substantial cause of the harm (ground 1(b)). 41 I consider these grounds by reference to the learned Magistrate’s reasons. The learned Magistrate identified the issues for determination at the commencement of his Honour’s reasons.49 His Honour set out in detail the prosecution’s case, the complainant’s evidence, the respondent’s evidence, the applicable law and the elements of the offences.50 The learned Magistrate assesses the evidence given at trial and considers the elements concerning the voluntary application of force, the unlawfulness of the application of force, and the defence of self-defence. The learned Magistrate then makes findings in respect of these matters concerning each count.51 The learned Magistrate makes findings in respect of aggravation.52 The learned Magistrate then sets out in detail the evidence that the prosecution relied on to prove harm.53 The learned Magistrate then analyses that evidence.54 The learned Magistrate finds that the prosecution proved beyond reasonable doubt that the complainant suffered harm to his head and face area in the course of his arrest on the evening of 6 December 2020 and that the injuries were more than transient or trifling. 42 Relevantly to this appeal, the learned Magistrate then considers what is referred to as the “causative nexus.” The learned Magistrate states:55 The prosecution must prove beyond reasonable doubt that the charged acts subject of each count caused the Complainant the harm particularised. If there is any doubt about what caused the harm in relation to each charged act this element of the charge will not be made out and the defendant must be acquitted. 43 The learned Magistrate then footnotes that:56 48 AWS at 5, [21]. 49 AB at 88 (Verdict at 1, [3]-[4]). 50 AB at 89-102 (Verdict at 2-15, [7]-[90]). 51 AB at 102-22 (Verdict at 15-35, [91]-[185]). 52 AB at 122-3 (Verdict at 35-6, [186]-[188]). 53 AB at 123-5 (Verdict at 36-8, [189]-[199]). 54 AB at 125 (Verdict at 38, [200]-[202]). 55 AB at 125-6 (Verdict at 38-9, [203]). 56 AB at 125-6 (Verdict at 38-9, [203]: fn 64). -- 11 of 19 -- [2026] SASC 3 Gray J 10 The prosecution did not argue at trial or in closing submissions that if it has failed to establish the cause of harm arising out of the assault, it is entitled to rely on the alternative verdict of guilt pursuant to s 20(3) of the CLCA. See Glouftsis v Police (2014) 120 SASR 420. 44 Following that, in the same paragraph, the learned Magistrate concludes:57 In order for an assault to “cause harm” there must be a causative nexus between the alleged charged acts and the harm. 45 The error that the appellant alleges in paragraph [203] is said to be that paragraph [203] contains a misstatement of the test. That is, whereas the appellant accepts the first two sentences correctly state the test, the third sentence is said, when read together with other aspects of the learned Magistrate’s reasons, to reveal the error identified in ground 1(a). 46 The learned Magistrate then at paragraphs [204] to [209] sets out in detail the prosecution’s submissions in relation to harm, including that the harm alleged to have been caused by the respondent was confined to the complainant’s head and face.58 The learned Magistrate specifically makes reference to the prosecution’s submission that, having regard to the volume and force of the strikes (both punching and kneeing) by the defendant to the complainant’s face and head, it would be wholly unrealistic to suppose that this conduct did not substantially or significantly contribute to the complainant’s injuries as explained by Dr Edwards, who was called at trial to attest to the nature of the injuries sustained by the complainant.59 47 The learned Magistrate then considers and makes findings about the evidence concerning harm.60 In particular, the learned Magistrate found that the complainant gave credible and reliable evidence about feeling the force of a police boot on top of his head.61 The learned Magistrate found that the complainant’s evidence about the respondent standing on his head, and the grazes on the complainant’s face, provided some evidence of a causal connection between the respondent’s actions and the injuries (harm) sustained in relation to count 2. The learned Magistrate made findings about the actions of other officers, and particularly in relation to the conduct of Constable Toth.62 The learned Magistrate then considered the evidence from both the CCTV and body-worn footage. The learned Magistrate then made the following findings:63 I find the defendant’s actions in striking the Complainant to the face and head area subject of Counts 1 and 3, are therefore not dissimilar to the actions of the other police officers. In the circumstances I find it a reasonable possibility that the forceful strikes carried out by 57 AB at 125-6 (Verdict at 38-9, [203]). 58 See AB at 126-7 (Verdict at 39-40, [209]). 59 AB at 126-7 (Verdict at 39-40, [209]). 60 AB at 127-9 (Verdict at 40-2, [210]-[216]). 61 AB at 128 (Verdict at 41, [212]-[213]). 62 AB at 128 (Verdict at 41, [214]). 63 AB at 128-9 (Verdict at 41-2, [215]-[216]). -- 12 of 19 -- [2026] SASC 3 Gray J 11 Officers Allanson and Toth could have caused injury to the Complainant’s face consistent with the observations of Dr Edwards and the injuries visible in the photographs. I also find that the melee between the Complainant and other police officers could have caused injuries to the Complainant’s face in circumstances where he was violently tackled to the ground and remained on the ground grappling with the officers. This finding is further supported by the evidence of Dr Edwards who refers to the injuries to the Complainant’s face and head area as being consistent with being struck into the ground multiple times by multiple police officers as he was resisting arrest. I find that the ferocity of the melee is further evidenced by the serious injuries which were sustained by Officer Allanson. Further I find that the Complainant was affected by OC spray which made contact with his face and eyes at close range on two occasions. In the circumstances the OC could have also caused redness to the skin on his face area resulting in blood shot eyes. Having considered all of the evidence, I am not persuaded that the prosecution have excluded as a reasonable possibility that the injuries to the Complainant’s face and head, in relation to each count were caused by the actions of Officers Toth and Allanson or the OC spray or other Police officers who were involved in the violent melee grappling with the Complainant on the ground. 48 I consider there is no foundation for finding that the learned Magistrate proceeded on the basis that the prosecution was required to prove that respondent caused a specific injury. The learned Magistrate at [203] correctly identified the need for the prosecution to prove beyond reasonable doubt that the charged acts subject of each count caused the complainant the harm particularised. I find there is no basis for reading the error alleged in ground 1(a) into paragraph [203] of the learned Magistrate’s reasons. Paragraph [203] does not reveal legal error. The reference to the “causative nexus” in the third sentence of that paragraph I find is a reference to the causative nexus referred to in the two preceding sentences in paragraph [203]. That is, the requirement for the prosecution to prove beyond reasonable doubt that the charged acts of the respondent the subject of each count caused the complainant the harm as particularised. 49 The consideration of the evidence at paragraphs [210] to [216], and in particular the findings made by the learned Magistrate, in my view, do not admit of the error that the appellant seeks to identify in ground 1(a). The learned Magistrate’s statement of the findings at [214] to [216] indicate that the learned Magistrate could not exclude that the injuries to the complainant’s face were caused by the actions of Constable Toth and Sergeant Allanson, or the OC spray, or other police officers. The learned Magistrate also considers and assesses the complainant’s evidence as providing some evidence of harm caused by the respondent in respect of count 2.64 In these paragraphs, and elsewhere, the learned Magistrate is assessing the evidence of harm. 50 The learned Magistrate considered the prosecution’s submissions in relation to harm and found that the respondent’s actions in striking the complainant to the face and head areas were not dissimilar to the actions of other police officers at the scene. The learned Magistrate found that the injuries caused to the complainant’s face could have been sustained in the melee between the complainant and other 64 AB at 128 (Verdict at 41, [213]). -- 13 of 19 -- [2026] SASC 3 Gray J 12 officers. The form of error complained of in ground 1(a) is not made out on an analysis of the learned Magistrates’ reasons. 51 A similar difficulty is encountered in relation to ground 1(b), in that the learned Magistrate’s reasons do not demonstrate that the learned Magistrate considered that the prosecution had to prove that the respondent’s assault was the sole cause of the harm, rather than considering whether the prosecution had proven the respondent’s assault was a substantial cause. The learned Magistrate, in setting out the prosecution’s contentions at paragraph [209], specifically makes reference to the requirement for the conduct to “substantially or significantly” contribute to the complainant’s injuries. The question of substantial and significant cause was raised at the trial.65 There is no basis to imply that this is not the test that the learned Magistrate applied when the learned Magistrate considered the evidence of harm in paragraphs [210] to [216]. 52 The learned Magistrate’s finding at paragraphs [215] and [216] indicate that the learned Magistrate was not persuaded to the requisite standard that the prosecution had excluded as a reasonable possibility that the injuries to the complainant’s face and head, in relation to each count, were caused other than by the respondent’s conduct. The learned Magistrate specifically refers to the actions of Constable Toth and Sergeant Allanson or the OC Spray and the actions of other police officers who were involved in the violent melee grappling with the complainant on the ground.66 Ground 1(b) is not made in circumstances where there is no statement in the reasons which supports that the learned Magistrate mistakenly comprehended that the respondent’s conduct must be the sole cause of harm. Such an approach is inconsistent with the learned Magistrate’s reasons. The learned Magistrate at paragraph [209] specifically refers to the prosecution case concerning substantial and significant contribution to the complainant’s injuries. 53 The learned Magistrate in paragraph [216] also analyses a number of potential causes of harm. It was a relevant consideration to the application of the correct legal test for the learned Magistrate to have considered the extent to which the harm to the complainant’s face and head were caused by the actions of Constable Toth and Sergeant Allanson, the OC spray or other police officers who were involved in the melee. I do not consider that it can be implied from a consideration of those matters that the learned Magistrate considered that the prosecution had to prove the respondent’s assault was the sole cause of the harm, rather than considering whether the prosecution had proven the respondent’s actions was a significant and substantial cause. The learned Magistrate’s findings at paragraphs [215] and [216], together with a consideration of the whole of the learned Magistrate’s reasons, do not support that implication. 65 See Trial Transcript at T166.32, T170.14, T170.38, T171.4, T172.4, T172.33, T174.2, T174.24 and T176.14. 66 AB at 129 (Verdict at 42, [216]). -- 14 of 19 -- [2026] SASC 3 Gray J 13 54 There is no complaint advanced that there was a failure to consider all of the evidence, nor that the findings of the learned Magistrate were not open on the evidence.67 Whilst the learned Magistrate’s reasoning would have been clearer if the learned Magistrate had, having made the findings set out in paragraphs [215] and [216], returned and restated the reference made in paragraph [209] to the prosecution case being that the respondent’s conduct must have been proven to be a substantial or significant contribution to the complainant’s harm, I do not consider that the failure to do so is demonstrative of the errors that the appellant identifies in either ground 1(a) or ground 1(b). 55 It follows that ground 1 is dismissed. Ground 2 56 In respect of Ground 2, the appellant in submissions eschewed any suggestion that the learned Magistrate had a duty to amend the information. Rather, the appellant submitted the learned Magistrate had a power to amend the information, and the learned Magistrate should have exercised that power in the interests of justice.68 57 This is not an appeal de novo. It is an appeal by way of rehearing. It follows that it is not a question of whether or not it would have been preferable for the learned Magistrate to have amended the information given the findings made. The issue for this Court to consider is whether there is, on the grounds of appeal that the appellant raises, identifiable error in the approach that the learned Magistrate took. To interfere with the decision of the learned Magistrate not to amend the information I would need to find that there was an error in the approach of the learned Magistrate.69 58 Ground 2 suggests that there was an error of law in the failure of the learned Magistrate to amend the information because the learned Magistrate had a power to amend the information and therefore his Honour should have, in the interests of justice, have amended the information. The appellant relied on the decision in Ayles v The Queen70 in that regard. 59 For the following reasons I am unable to identify any such error. 67 See AT at T17. 68 AT at T85.27-6.27. 69 Police v Kriticos [2016] SASC 28 at [27] (S Doyle J). 70 Ayles v The Queen [2008] HCA 6; (2008) 232 CLR 410 at 435, [80]-[81] (Kiefel J, Gleeson CJ and Heydon J agreeing). -- 15 of 19 -- [2026] SASC 3 Gray J 14 60 The High Court has on many occasions emphasised the important distinction under Australian law of maintaining the separation between the prosecutorial and the judicial function.71 In Maxwell v the Queen, Gaudron and Gummow JJ held:72 The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what. (citations omitted) 61 In James v The Queen,73 the High Court addressed an appeal against a conviction following a trial on indictment based on the failure of the trial judge to instruct the jury on the availability of verdicts for each of a number of lesser offences. The majority held that on the trial on indictment of the offence charged it was not the duty of the trial judge in every such case to leave to the jury any lesser alternative verdict that was realistically open on the evidence, regardless of the forensic decisions of counsel.74 62 The plurality in James v The Queen held:75 However, it is wrong to equate leaving a defence or partial defence with leaving alternative verdicts. The two are distinct. Where there is evidence to support a defence or partial defence it is incumbent on the prosecution to negative it. Satisfaction that the defence or partial defence has been negatived will be an issue in the trial and almost always will require the trial judge to so direct the jury. Where the prosecution does not seek the jury's verdict for an offence not charged, the circumstance that in law the evidence may support conviction for a lesser offence does not without more make guilt of that lesser offence an issue in the trial. Fairness in such a case may favour that the accused's chances of outright acquittal on the issues joined not be jeopardised by the trial judge's decision to leave an alternative verdict. (citations omitted) 63 The plurality went on to hold:76 71 See James v The Queen [2014] HCA 6; (2014) 253 CLR 475 at 490-1, [37] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, Gageler J dissenting). See also Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 at 513-4 (Dawson and McHugh JJ) and 534-5 (Gaudron and Gummow JJ); Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 at 269, [2] (French CJ) and 279-80, [37] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at 497- 8, [33]-[35] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 at 390, [20] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). 72 Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 at 534 (Gaudron and Gummow JJ). See also 513-4 (Dawson and McHugh JJ). 73 James v The Queen [2014] HCA 6; (2014) 253 CLR 475 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, Gageler J dissenting). 74 James v The Queen [2014] HCA 6; (2014) 253 CLR 475 at 481, [6] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, Gageler J dissenting). See also Police v Hill [2025] SASC 127 at [70]-[76] (Stein J). 75 James v The Queen [2014] HCA 6; (2014) 253 CLR 475 at 489, [33] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, Gageler J dissenting). 76 James v The Queen [2014] HCA 6; (2014) 253 CLR 475 at 491, [38] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, Gageler J dissenting). -- 16 of 19 -- [2026] SASC 3 Gray J 15 The trial judge's duty with respect to instruction on alternative verdicts is to be understood as an aspect of the duty to secure the fair trial of the accused. The question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate court's assessment of what justice to the accused required in the circumstances of the particular case. That assessment takes into account the real issues in the trial and the forensic choices of counsel. As earlier noted, not infrequently defence counsel will decide not to sully the defence case (that the only proper verdict is one of outright acquittal) by an invitation to the jury to consider the accused's guilt of a lesser offence. Such a forensic choice does not prevent counsel from submitting that the alternative verdict should nonetheless be left. Much less does it prevent counsel from making that submission where, as here, he or she is asked about the matter. It remains that the forensic choices of counsel are not determinative. The duty to secure a fair trial rests with the trial judge and on occasions its discharge will require that an alternative verdict is left despite defence counsel's objection. 64 In this case, the charge of aggravated assault contrary to s 20(3) was not a statutory alternative charge, amendment of the information would have been required for this charge to be considered. I find that the decision of the learned Magistrate not to amend the information to include charges, pursuant to s 20(3) of the CLCA, does not reveal appellable error having regard to the circumstances of this case and the requirement to accord justice and a fair trial to the respondent.77 The prosecution did not seek to amend the information, nor did the prosecution ask the learned Magistrate to amend the information if the learned Magistrate was not satisfied in respect of the element of harm in respect of the offences charged.78 It was open to the learned Magistrate to consider that fairness in the circumstances of this case favoured the accused having the opportunity of outright acquittal on the issues joined not be jeopardised by the learned Magistrate’s proceeding to amend the information. 65 Whilst I accept that the learned Magistrate had power to amend the information pursuant to s 181 of the Criminal Procedure Act 1921 (SA), that is a discretionary decision.79 Further, the power to amend is curtailed by the requirement that the amendment be in the interests of justice and that no substantial prejudice is visited upon the defendant.80 It was not a power which on the facts of this case admitted of only one way in which that power could be exercised. 66 As the majority recognised in James v The Queen there are considerations of the public interest that defendants should be convicted of offence which they are proved to have been committed,81 however, the underlying and guiding principles are the fair trial principles. The application of the fair trial principles, and the importance of maintaining the separation between prosecutorial and judicial functions, mean that there was no duty upon the learned Magistrate in this case to 77 James v The Queen [2014] HCA 6; (2014) 253 CLR 475 at 491, [38] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, Gageler J dissenting). 78 That is the element of harm required to be proven in respect of the alleged contraventions of s 20(4) of the CLCA. 79 Police v Smith [2025] SASCA 37 at [85] (Doyle JA and Stein AJA, David JA dissenting). 80 Glouftsis v Police [2014] SASC 136; (2014) 120 SASR 420 at 431, [68] (Kelly J). 81 James v The Queen [2014] HCA 6; (2014) 253 CLR 475 at 502, [74] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, Gageler J dissenting). -- 17 of 19 -- [2026] SASC 3 Gray J 16 amend the information, and there was no error in the learned Magistrate not exercising the power pursuant to s 181 of the Criminal Procedure Act 1921 (SA), in circumstances where the prosecution did not apply for an amendment.82 67 The prosecution could have, but did not, charge the respondent with the offence of aggravated assault contrary to s 20(3) of the CLCA.83 The prosecution could have, but did not seek to amend the information. The prosecution could have, but did not, ask the learned Magistrate to amend the information. The learned Magistrate in this case specifically noted that “the prosecution did not argue at trial or in closing submissions that if it has failed to establish the cause of harm arising out of the assault, it is entitled to rely on the alternative verdict of guilt pursuant to s 20(3) of the CLCA.”84 68 The trial before the learned Magistrate proceeded on the basis of the issues joined between the parties on the information before the Court. The issue of whether the acts of the respondent caused harm to the complainant was a live and central issue at trial. Whilst it was the duty of the learned Magistrate to determine the accused guilt by reference to the charged offence, the learned Magistrate did not have a duty, in the circumstances of this case, to determine the accused’s guilt by reference to an offence which the prosecution had elected not to include in the information. 69 It follows that I would dismiss ground 2 of the appeal. 70 Even, if I am wrong in that conclusion, there are also additional considerations which apply when this Court is considering an appeal against an acquittal. The principles of double jeopardy apply. As S Doyle JA and Stein J held in Police v Smith:85 However, the undesirability of exposing a defendant to double jeopardy is a relevant consideration in determining the appropriate disposition of such an appeal. The Court retains a discretion not to intervene even if there is merit in one or more of the grounds of appeal. In R v Brougham Peek J considered it well established that in South Australia the Supreme Court will have close regard to the double jeopardy principles and exercise appellate restraint when addressing prosecution appeals against acquittals by Magistrates. This particularly will be the case where an acquittal proceeds from a lack of satisfaction by the Magistrate of guilt on the facts, as distinct from a misapprehension as to the law. (citations omitted) 82 James v The Queen [2014] HCA 6; (2014) 253 CLR 475 at 489, [33] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, Gageler J dissenting); Police v Smith [2025] SASCA 37 at [88] (Doyle JA and Stein AJA, David JA dissenting). 83 This could have been included in the information as an alternative charge. 84 The learned Magistrate cited Glouftsis v Police [2014] SASC 136; (2014) 120 SASR 420 (Kelly J). 85 Police v Smith [2025] SASCA 37 at [91]-[92] (Doyle JA and Stein AJA, David JA dissenting). -- 18 of 19 -- [2026] SASC 3 Gray J 17 71 Their Honours also held: 86 In having regard to the concern to avoid double jeopardy, the High Court in Everett recognised the need, in the interests of fairness to the defendant, to take into account the prosecution’s conduct of a case, even in circumstances where the judge has erred in a fundamental way. The courts have shown a particular reluctance to permit the prosecution, on a Crown appeal, to rely upon a submission or position not advanced below. That must be all the more so where the prosecution seeks, on appeal, to rely upon an approach which it expressly disavowed below. (citations omitted) 72 In this case, the prosecution did not charge the offence of aggravated assault, contrary to s 20(3) of the CLCA. The prosecution did not seek to amend the information at any stage during the course of the trial and did not invite the learned Magistrate to amend the information to consider the offence of aggravated assault, contrary to s 20(3) of the CLCA. In these circumstances, even if contrary to the finding I make above, there was error in the learned Magistrate’s decision not to amend the information; I consider that the principles of double jeopardy would justify this Court in declining to intervene in respect of ground 2. Conclusion and orders 73 I dismiss the appeal on both grounds. It follows that it is unnecessary that I address the issues raised by the notice of alternative contention. 74 The order of this Court is: 1. The appeal is dismissed. 75 I will hear the parties as to any further orders. 86 Police v Smith [2025] SASCA 37 at [95] (Doyle JA and Stein AJA, David JA dissenting). -- 19 of 19 --