MIRELLA AGOSTINO In Person v COMMISSIONER OF POLICE In Person [2026] SASC 30

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE SMOLICZ) [2025] SAMC 140, MCCRM-24-012180 Appellant: MIRELLA AGOSTINO In Person Counsel: MR R LANE - Solicitor: MCGRATH LAWYERS Respondent: COMMISSIONER OF POLICE In Person Counsel: MS A HEDGER WITH MS A ZIMMERMAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 16/02/2026, 24/02/2026 File No/s: SCCRM-25-039837 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal) 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. AGOSTINO v POLICE [2026] SASC 30 Judgment of the Honourable Justice Gray (ex tempore) 24 February 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT MAGISTRATES - GENERALLY - POWERS AND DUTIES - REASONS This is an appeal against conviction for an offence of assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA), following trial in the Magistrates Court. The circumstances alleged were that on 10 January 2024, in a car park at Glenelg, an altercation involving the complainant’s husband and another man ensued when the complainant’s husband attempted to reverse out of a parking space when he observed that a black sedan, driven by the appellant, was obstructing the rear of his vehicle. Both the appellant and the complainant subsequently exited their respective vehicles. The appellant approached the complainant while holding a mobile phone and waved it in close proximity to the complainant’s face. It was alleged that when the complainant attempted to push the phone away, the appellant struck her twice to the head, once to each side, in rapid succession. The matter proceeded to trial for an offence of aggravated assault. The learned trial Magistrate found the appellant not guilty of the offence in its aggravated form, but guilty of the offence of basic assault. The appellant pursues three grounds of appeal, contending: (1) a miscarriage of justice occurred because the learned Magistrate failed to direct himself and apply a Liberato direction; (2) the learned Magistrate failed to provide adequate reasons for dismissing the accused’s version as a reasonable possibility; and (3) that the verdict was unreasonable as the learned Magistrate erred in finding that -- 1 of 14 -- the complainant’s prior inconsistent statements did not undermine the reliability of her evidence at trial. Held, allowing an extension of time to appeal, but dismissing the appeal: 1. It was implicit in the learned trial Magistrate’s reasons that his Honour did not accept the accused’s version of events. The learned trial Magistrate adequately exposed his reasons as to why he found the elements of the basic offence proved beyond reasonable doubt. [32] 2. The adequacy of reasons is to be assessed by reference to the forensic issues at trial and the circumstances of the case, and the reasons delivered must be read in their entirety. The learned trial Magistrate detailed the reasons for finding the complainant to be truthful and reliable, and indicated the reasons he found each of the elements in dispute proved beyond reasonable doubt. [43] 3. The findings made by the learned trial Magistrate were open to his Honour and the appellant did not demonstrate that there has been a miscarriage of justice occasioned by the findings and treatment of the complainant’s evidence, having regard to the prior inconsistent statements made by the complainant. [51] Criminal Law Consolidation Act 1935 (SA) ss 5AA(1), 20(3); Magistrates Court Act 1991 (SA) s 42(1), referred to. DL v The Queen [2018] HCA 26; Mead (a pseudonym) v The King [2025] SASCA 3; Police v Agostino [2025] SAMC 140, discussed. Boyle (A Pseudonym) v The Queen [2022] SASCA 50; (2022) 299 A Crim R 92; Douglass v The Queen (2012) 86 ALJR 1086; Fleming v The Queen (1998) 197 CLR 250; Glouftsis v Police (2024) 120 SASR 420; Jackamarra (an infant) v Krakouer [1998] HCA 27; (1998) 195 CLR 516; Jaunay v Police [2023] SASC 38; JGS v The Queen [2020] SASCFC 48; M B v Police [2019] SASC 58; Macks v Viscariello [2017] SASCFC 172; (2017) 130 SASR 1; Martin v Department for Transport, Energy and Infrastructure (SA) [2010] SASC 141; (2010) 269 LSJS 403; Police v Hunt [2024] SASC 107; R v Keyte [2000] SASC 382; (2000) 78 SASR 68; Rowland v Police [2001] SASC 179, considered. -- 2 of 14 -- AGOSTINO v POLICE [2026] SASC 30 Criminal: Magistrates Appeal 1 GRAY J (ex tempore): This matter concerns an appeal against conviction in respect of the appellant, Mirella Agostino, for the offence of assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA), following a trial in the Magistrates Court. The learned Magistrate found the appellant guilty and published reasons on 21 August 2025.1 2 The matter proceeded to trial for an offence of aggravated assault. The circumstances of aggravation were that the appellant knew the complainant, Ms Shanahan-Chapman, was over the age of 60 years.2 The learned Magistrate found the appellant not guilty of the offence in its aggravated form, but guilty of the offence of basic assault, a course not objected to by the appellant’s counsel.3 The appellant was sentenced on 3 October 2025. 3 By notice of appeal filed on 6 October 2025, the appellant makes a complaint against the conviction. 4 The appellant pursues three grounds on this appeal.4 The appellant contends on appeal that a miscarriage of justice occurred because the learned Magistrate failed to direct himself and apply a Liberato direction. The appellant also contends that the learned Magistrate failed to provide adequate reasons for dismissing the accused’s version as a reasonable possibility. The appellant raises a further ground of appeal stating that the verdict was unreasonable as the learned Magistrate erred in finding that the complainant’s prior inconsistent statements did not undermine the reliability of her evidence at trial. 5 The respondent, the Commissioner of Police, contends on appeal that the learned Magistrate in preferring the version of events given by the complainant properly considered whether the prosecution had proved the elements of the offence beyond reasonable doubt.5 The respondent further contends that consideration of the entirety of the learned Magistrate’s reasons indicates that the learned Magistrates reasons were adequate having regard to the forensic issues at the trial and the circumstances of the case. Finally, the respondent submits that the findings made by the learned trial Magistrate were open to him, and this Court should not interfere as the learned trial Magistrate had the advantage of seeing and 1 Police v Agostino [2025] SAMC 140 (Magistrate Smolicz). 2 Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g). 3 Police v Agostino [2025] SAMC 140 at 7-8, [31] (Magistrate Smolicz). See Glouftsis v Police [2014] SASC 136; (2024) 120 SASR 420 at 431, [64]-[65] (Kelly J). 4 See Written Submissions of the Respondent dated 9 February 2026 (FDN 8), which refers to the grounds of appeal as Grounds 3, 4 and 5. 5 Written Submissions of the Respondent dated 9 February 2026 (FDN 8), at [8]. -- 3 of 14 -- [2026] SASC 30 Gray J 2 hearing the witnesses and the findings of fact made by the learned trial Magistrate were not ‘glaringly improbable’ or ‘contrary to compelling inferences’.6 6 The appeal was filed out of time, and an affidavit was affirmed by the appellant’s solicitor in support of the application for an extension. An appointment with the appellant, who had been in custody at the time for unrelated offending, was not organised until 16 September 2025, and took place on 19 September 2025. The notice of appeal was drafted the following week. The extension of time was not objected to. The extension sought is short. An explanation for the delay has been provided, the applicant has demonstrated an arguable case, and there is no relevant prejudice to the respondent.7 Taking those matters into account, noting the slight delay and considering the appellant’s custody status, I grant the application for an extension of time. Background and nature of the appeal 7 By information dated 3 April 2024, the appellant was charged with an offence of aggravated assault, which proceeded to trial on 13 May 2025. The respondent called three witnesses at trial: the complainant, the complainant’s husband, Mr Chapman, and Senior Constable Allison, the investigating officer in this matter. 8 The respondent alleged that the appellant on 10 January 2024, at a car park in Glenelg, assaulted the complainant by striking her twice to the side of the head with her open palm in quick succession. 9 An altercation took place between the complainant’s husband, Mr Chapman, and another male, Mr Lister, at the carpark, which was not in dispute at trial. Mr Chapman was attempting to reverse out of his parking space when he realised a black sedan was obstructing the rear of his vehicle. Mr Chapman got out of his vehicle and asked the driver of the black sedan, the appellant, Ms Agostino, to move her car. 10 At this point, Mr Lister got out of his vehicle and a verbal altercation ensued. Eventually, both Ms Agostino and the complainant alighted their respective vehicles and at this point it was alleged Ms Agostino walked toward the complainant holding her mobile phone. The complainant tried to wave the mobile phone away from herself, as it was being waved by the appellant in her face. The respondent alleges that the appellant then struck the complainant twice to the head: once to the left and once to the right, in rapid succession. Mr Chapman did not witness the assault on the complainant. 11 The altercation between Mr Chapman and Mr Lister continued and became physical, until a passerby intervened and broke up the fight. The appellant and 6 M B v Police [2019] SASC 58 at [53] (Parker J) referring to Fox v Percy (2003) 214 CLR 118 at 128 (Gleeson CJ, Gummow and Kirby JJ). 7 Jackamarra (an infant) v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at 519-20, [4] (Brennan CJ and McHugh J). -- 4 of 14 -- [2026] SASC 30 Gray J 3 Mr Lister had left the scene prior to police arrival. Mr Chapman sustained injuries and was conveyed to hospital by ambulance. 12 At the time of the offence, the complainant was 77 years of age. 13 The respondent tendered a record of interview with the appellant at trial.8 The appellant stated she drove a black Mazda sedan and was present at the carpark, and that an altercation ensued between Mr Lister and Mr Chapman and bystanders gathered around. The appellant stated she left her vehicle and held her mobile phone in the direction of the complainant, recording footage of the complainant knocking the phone from her hand. She denied the assault on the complainant.9 14 The mobile phone footage taken by the appellant was tendered on the defence case at trial, but the footage did not capture the alleged assault.10 15 Mr Lister was due to commence trial on 13 May 2025. On the first day of trial, a plea of guilty to the offence of assault causing harm to Mr Chapman in its basic form was entered, and the matter with respect to Mr Lister was later finalised. Statutory basis of the appeal and relevant principles 16 This matter concerns an appeal under s 42(1) of the Magistrates Court Act 1991 (SA) and is governed by Chapter 9, Part 3 of the Joint Criminal Rules 2022 (SA). It is to be conducted by way of rehearing, with the Court permitted to draw its own inferences from the evidence adduced in the proceedings at first instance.11 17 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.12 18 Whilst the Court must set aside a challenged finding of fact which is demonstrated to be wrong, the appeal is not a de novo hearing and the appellate court should not substitute its own view or otherwise interfere unless it is satisfied that the trier of fact fell into error.13 19 In the course of conducting such a review, the appellate court should have regard to the findings of the trial court, including any advantage that the learned Magistrate had in making those findings, which include the opportunity of the learned Magistrate to assess the reliability and credibility of witnesses having seen and heard their evidence in the context of the evidence as a whole.14 8 Record of Interview with Defendant dated 25 March 2024 (Trial Exhibit P2). 9 Police v Agostino [2025] SAMC 140 at 2, [7] (Magistrate Smolicz). 10 Video Recording of Incident at Glenelg Car Park (Trial Exhibit D1). 11 Joint Criminal Rules 2022 (SA) r 191.1(1)(a)-(b). 12 Martin v Department for Transport, Energy and Infrastructure (SA) [2010] SASC 141; (2010) 269 LSJS 403 at 410, [38] (White J). 13 Jaunay v Police (SA) [2023] SASC 38 at [55] (Stein J). 14 Ibid. -- 5 of 14 -- [2026] SASC 30 Gray J 4 20 The appellant, as indicated above, pursues three grounds on this appeal, referred to as Grounds 3, 4 and 5. Although I have summarised the parties’ submissions, I have considered the details of the submissions that the parties advanced both in their written submissions and in oral argument before the Court today, and at the previous hearing. Ground 3 21 The appellant complains that the learned Magistrate provided inadequate reasons in dismissing her version of events as a reasonable possibility. The appellant contends on appeal that a miscarriage of justice occurred because the learned Magistrate failed to direct himself and apply a Liberato direction.15 22 The appellant contends that a Liberato direction involves three steps. Firstly, an assessment must be made of whether the accused version of events is believed. If it is, the accused must be acquitted. Secondly, if the accused’s version of events is not accepted but there is a reasonable possibility that it is true then there must be an acquittal. Thirdly, if the accused’s evidence is rejected, that evidence needs to be put to one side and consideration must be given to the question of whether the prosecution, on the basis of the evidence that is accepted, had proved the guilt of the accused beyond reasonable doubt.16 23 The appellant submits that the learned trial Magistrate did not consider whether he believed the appellants version to be true on crucial issues of her denial of the assault. Further, the appellant contended in submissions today that: firstly, the interview does not constitute a bare denial; secondly, the defendant’s version is consistent with the mobile phone footage; and thirdly, the learned trial Magistrate did not deal with an aspect of the complainant’s evidence concerning why the complainant left the car park. The appellant further contends that the learned trial Magistrate did not consider whether, even if he did not believe the accused, her denial of the conduct constituting the alleged assault might be true. The appellant contends that the learned trial Magistrate confined himself to a consideration of the complainant’s evidence. 24 The respondent contends on appeal that the learned Magistrate in preferring the version of events given by the complainant properly considered whether the prosecution had proved the elements of the offence beyond reasonable doubt.17 25 A consideration of this ground requires analysis of the learned Magistrate’s reasons. The learned trial Magistrate stated: The accused comes before the court with the presumption of innocence. In other words, she is presumed to be innocent unless and until the prosecution proves the charge to the requisite standard. The prosecution bears the onus of proving each element of each charge 15 Written Submissions of the Appellant dated 5 February 2026 (FDN 7), at [1]. 16 Written Submissions of the Appellant dated 5 February 2026 (FDN 7), at [3]. 17 Written Submissions of the Respondent dated 9 February 2026 (FDN 8), at [8]. -- 6 of 14 -- [2026] SASC 30 Gray J 5 beyond reasonable doubt. The accused is entitled to the benefit of any reasonable doubt arising from the evidence. The accused elected not to give evidence during the trial. I remind myself she was under no obligation to give evidence. Accordingly, I must not draw any inference adverse to her or the case she puts forward from the exercise of that right. There may be many reasons why she did not give evidence and I must not speculate on those reasons. I bear in mind that it is for the prosecution to prove its case beyond reasonable doubt. The accused, however, answered questions when interviewed by the police. It is well established that where a record of interview is put into evidence the trier of fact can act on the exculpatory parts as well as any admissions. In other words, exculpatory parts of interviews are evidence of the facts available to the trier of fact for their consideration.18 However, the trier of fact is entitled to give the exculpatory statements less weight having regard to their self-serving nature and the fact that they were not made on oath or subject to cross-examination.19 Elements of offence The prosecution must prove the following elements beyond reasonable doubt: The accused applied force to the victim. The application of force was intentional (that is, not accidental); The accused intentionally applied force without the alleged victim’s consent; The accused knew the alleged victim was not consenting. The accused acted unlawfully (that is, there was no lawful basis for the application of force, such as self-defence). However, “conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault.” 26 The learned Magistrate considered the complainant’s evidence and concluded, “I am satisfied beyond reasonable doubt having heard the complainant’s evidence that she was struck in rapid succession to the left and then to the right side of her head by the accused.”20 27 The learned Magistrate had regard to the accused’s police interview. At paragraph [29] the learned Magistrate stated: In making this finding, I have also considered the evidence regarding the accused’s mobile phone. I note the accused did not say in her police interview that the phone was knocked from her hand. I also note that it was unclear from the evidence at trial if the accused dropped her mobile phone or if it made contact with the complainant’s hand or whether the accused was still holding on to her mobile phone or put it away. The evidence surrounding the mobile phone does not cause me to doubt the complainant’s evidence that she was 18 M v R (1994) 62 SASR 364; R v McCarrol [2004] WASCA 131 at [19]. 19 (2005) 221 ALR 85, at [22]. 20 Police v Agostino [2025] SAMC 140, at [28] (Magistrate Smolicz). -- 7 of 14 -- [2026] SASC 30 Gray J 6 struck twice by the accused to the head in quick succession. Further, I am satisfied beyond reasonable doubt that the accused’s acts were intentional and were made without the consent of the complainant. I also find there was no lawful basis for the application of force, such as self-defence. 28 The complaint that the appellant advances is that the learned trial Magistrate did not consider the accused’s evidence and her denial of the conduct constituting the assault, either with regard to the mobile phone footage or at all. 29 I accept that the learned trial Magistrate, in his reasons, focused on considering the accused’s evidence in the police interview in relation to her mobile phone and the manner in which this evidence did not cause the learned Magistrate to doubt the complainant’s evidence that she was struck twice to the head by the accused in quick succession. I accept that it may have been preferable for the learned trial Magistrate to specifically record his findings in respect of the accused’s evidence and her denial of the conduct constituting the assault given on the police record of interview. 30 However, I do not consider that the learned trial Magistrate’s failure to specifically refer to these matters in his reasons is indicative of the error that the appellant seeks to attribute to the learned Magistrate, namely that these matters were not considered by the learned Magistrate. 31 I find that the learned trial Magistrate did consider the accused’s evidence and her denial of the conduct constituting the assault. In my view, a fair reading of the learned Magistrate’s reasons as a whole indicates: 1. Firstly, that the learned trial Magistrate considered the content of the record of the police interview in detail.21 2. Secondly, the learned Magistrate specifically refers to the relevant standard of proof and that the accused is entitled to the benefit of any reasonable doubt arising from the evidence.22 3. Thirdly, the learned Magistrate specifically makes reference to the accused electing not to give evidence at trial and refers to the accused answering questions when asked by police, and that the exculpatory parts of that interview are evidence.23 32 It is only after making those findings that the learned Magistrate goes on to consider the complainant's evidence. The learned Magistrate considers in detail the complainant’s evidence.24 Reference is also made in the context of the complainant’s evidence to the police record of interview. The learned trial Magistrate was not required to consider the evidence of the accused in isolation 21 Police v Agostino [2025] SAMC 140, at [7] (Magistrate Smolicz). 22 Police v Agostino [2025] SAMC 140, at [17] (Magistrate Smolicz). 23 Police v Agostino [2025] SAMC 140, at [18] and [19] (Magistrate Smolicz). 24 Police v Agostino [2025] SAMC 140, at [23]-[29] (Magistrate Smolicz). -- 8 of 14 -- [2026] SASC 30 Gray J 7 from the evidence of the complainant. In Mead (a pseudonym) v The King,25 the court held:26 [N]one of these authorities suggests that the evidence of the complainant or the accused should be considered in isolation from one another or in isolation from the other evidence relevant to the facts in issue to which those witness’ testimony relate … the generally- required directions are instead designed to guard against the jury being distracted from the requirement of proof by the prosecution beyond reasonable doubt and to guard against the simplistic and wrong reasoning that merely to reach the point of forming a preference for the complainant’s evidence over that of the accused is sufficient in order to be satisfied beyond reasonable doubt of the accused’s guilt. 33 The purpose of a Liberato direction is to guard against the risk of impermissible choice or preference reasoning. It is implicit in the learned trial Magistrate’s reasons that the learned trial Magistrate did not accept the accused’s version of events. The learned trial Magistrate was not required to separately address the accused’s reasons for leaving the car park. It is also implicit that the learned trial Magistrate did not accept that there was a reasonable possibility that the accused’s version of events was true. In the circumstances of this case, the learned trial Magistrate has adequately exposed his reasons in such a way as to indicate why he found the elements of the basic offence proved beyond reasonable doubt.27 It follows that I find that the appellant has not made out this ground. Ground 4 34 The appellant also contends that the learned Magistrate failed to provide adequate reasons for dismissing the accused’s version as a reasonable possibility. 35 Following the completion of a trial by judge alone, a trial judge is ‘obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied.’28 The same is applicable in respect of a trial heard before a magistrate.29 This principle exists to facilitate the appellate process, and because each party to a proceeding and the general public is entitled to identify the reasoning process followed in judicial decision-making.30 Failing to provide adequate reasons amounts to an error of law.31 36 An assessment of the adequacy of reasons provided is to be undertaken on a case-by-case basis. While an appellate court should not be left to speculate as to the meanings of the reasons of the trier of fact and law, those reasons need not be 25 [2025] SASCA 3. 26 [2025] SASCA 3, at [56] (S Doyle, Bleby and B Doyle JJA). 27 See particularly Police v Agostino [2025] SAMC 140, at [28] (Magistrate Smolicz). 28 Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699; (2012) 86 ALJR 1086 at 1088, [8] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). 29 Police v Hunt [2024] SASC 107, at [139] (McDonald J). 30 See Fleming v The Queen (1998) 197 CLR 250 at 260, [22] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) and R v Keyte [2000] SASC 382; (2000) 78 SASR 68 at 77-8, [43]-[47] (Doyle CJ, Wicks J agreeing) and 82, [64]-[65] (Williams J). 31 Fleming v The Queen (1998) 197 CLR 250 at 260, [22] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ). -- 9 of 14 -- [2026] SASC 30 Gray J 8 ‘extensive or elaborate’.32 What must be exposed is a careful assessment of all relevant facts and the setting aside of those relevant facts which may be ‘inconvenient’.33 37 In DL v The Queen, Kiefel CJ, Keane and Edelman JJ stated:34 At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake a “minute explanation of every step in the reasoning process that leads to the judge’s conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. 38 Importantly, however, the Magistrates Court is a court of summary jurisdiction which ‘unquestionably deals with the highest volume of criminal cases of any court in South Australia.’35 The reasons provided by magistrates are to be considered in that context. This Court should also remain cognisant of the fact that the duty of this Court in its appellate jurisdiction is to conduct an independent review of all the evidence and be satisfied that the judgment, on appeal, was correctly decided.36 39 The complaint in this case is that the reasons given for rejecting the defence version of events as a reasonable possibility were inadequate. This is a complaint mounted towards a specific part of the reasoning process of the learned Magistrate. The underlying basis of the defence case that can be distilled upon review of the trial transcript, and by reference to the learned Magistrate’s reasons, is that the appellant did not assault the complainant, and that the evidence of the complainant should not have been accepted given she had ‘changed her evidence in a material way.’37 40 A substantial portion of the learned Magistrate’s reasons are dedicated to a summary of the complainant’s evidence.38 The learned Magistrate made an assessment of that evidence and how it affected the complainant’s credibility and reliability. 41 The inconsistency alleged by the appellant to affect the credibility and reliability of the complainant lies in the first report to police about where she was struck in the head, and how that had changed in her second statement and in her evidence at trial. The learned Magistrate wrote a considerable amount in his 32 Boyle (A Pseudonym) v The Queen [2022] SASCA 50; (2022) 299 A Crim R 92 at 116-7, [119] (Livesey P, Lovell and Bleby JJA). 33 Macks v Viscariello [2017] SASCFC 172; (2017) 130 SASR 1 at 104-5, [523] (Lovell J, Corboy and Slattery AJJ). 34 [2018] HCA 26, at [33]. 35 Rowland v Police [2001] SASC 179; (2001) 79 SASR 569 at 573, [29] (Perry J). 36 Rowland v Police [2001] SASC 179; (2001) 79 SASR 569 at 573-4, [36]-[38] (Perry J). 37 Police v Agostino [2025] SAMC 140, at [21] (Magistrate Smolicz). 38 Police v Agostino [2025] SAMC 140, at [10]-[15] (Magistrate Smolicz). -- 10 of 14 -- [2026] SASC 30 Gray J 9 Honour’s reasons about this inconsistency and the findings made in light of the submissions made on the defence case. His Honour stated:39 Importantly, I find that any apparent inconsistency in what the complainant initially told the police in her first statement about the strike to the back of her head, compared to what she provided in her second statement does not undermine my assessment of her credibility or the reliability of her evidence. I accept the explanation she provided in cross-examination as genuine and credible. I find that she has consistently claimed she was struck twice to the head. I find the evidence in her second statement was consistent with her evidence at trial. I find that the complainant was at all times clear, that there was an application of force by the accused and that she was struck with an open palm twice to side of her face. I find the complainant provided clear and persuasive evidence of feeling hurt, feeling stunned after the first strike and that her hearing was affected after she was struck to the left side of her head. I find she was able to clearly demonstrate in court how the base of the accused’s palm contacted the left side of her head, near her eye and temple region, with the fingers contacting the back part of her head. I find the complainant was quite firm in her description of the first strike and maintained her evidence in cross examination. Having regard to the complainant’s evidence and her description of the strike in court, I find the nature of the strike would have distributed the force from the base of the accused’s palm, back to her fingers, which wrapped around the side of her head. I accept the complainant’s evidence that the reason she provided a second statement was to provide further detail and not because she was changing her evidence because she was concerned about the height discrepancy between her and the accused. I accept the complainant’s explanation that when she provided the first statement, she was still in shock, having witnessed her husband being assaulted and taken away in an ambulance. I accept the complainant’s explanation that the second strike to the right side of her face was not as memorable as the first because she was in a state of shock after being struck. I find her evidence is logical and consistent with human experience, that having been struck to the side of the head, she would have experienced pain and become stunned, and this would have had a direct impact on her ability to recall details of the second strike which occurred in quick succession. I do not consider that any inconsistency in this case to be sufficiently serious to affect my assessment of her as a witness. 42 I find that the reasons of the learned Magistrate contain a careful assessment as to all relevant facts and the reasons address any discrepancies and inconsistencies. A not insignificant portion of the reasons deal precisely with the defence case and the issue taken with the inconsistencies in the evidence of the complainant. The learned Magistrate explains the method by which he found the complainant’s evidence to be logical and consistent with human experience. Through that consideration, the learned Magistrate excludes the defence version of events as a reasonable possibility, having found the elements for the basic offence proved beyond reasonable doubt. 43 I accept, as I have set out in relation to ground 3, that it may have been preferable for the learned trial Magistrate to specifically record his findings in 39 Police v Agostino [2025] SAMC 140, at [24]-[29] (Magistrate Smolicz). -- 11 of 14 -- [2026] SASC 30 Gray J 10 respect of the accused’s evidence and her denial of the conduct constituting the assault given on the police record of interview. However, by engaging in the consideration of an acceptance of the complainant’s account as truthful and reliable and finding the evidence to prove the elements of the basic offence beyond reasonable doubt, it is implicit that the learned trial Magistrate dismissed the accused’s version as a reasonable possibility. 44 The adequacy of the reasons is to be assessed by reference to the forensic issues at trial and the circumstances of the case, and the reasons delivered must be read in their entirety.40 In this context, there was no need for the learned Magistrate to separately address the accused’s reasons given in the record of interview for leaving the car park. In this case, for the reasons stated, the learned trial Magistrate engaged in a proper analysis of the reasons underpinning the verdict of guilty. The learned trial Magistrate set out in detail the reason for finding the complainant to be truthful and reliable, and indicated the reasons that he found each of the elements in dispute provided beyond reasonable doubt. The learned trial Magistrate explained his conclusions on the significant factual and evidential disputes that were a necessary step to the final conclusion reached. It follows that I would dismiss Ground 4 of the appeal. Ground 5 45 The appellant complains that the learned Magistrate erred in failing to find that the complainant’s prior inconsistent statements undermined her credibility and reliability as a witness. The appellant contends that this failure led to the verdict being unreasonable or, alternatively, a miscarriage of justice.41 46 The respondent submits that the findings made by the learned trial Magistrate were open to him and that this Court should not interfere, as the learned trial Magistrate had the advantage of seeing and hearing the witnesses and the findings of fact made by the learned trial Magistrate were not ‘glaringly improbable’ or ‘contrary to compelling inferences’.42 47 The learned trial Magistrate’s findings concerning the complainant’s evidence were the subject of significant consideration in the learned trial Magistrate’s reasons. The learned trial Magistrate considered the purported prior inconsistent statements and found that there was no relevant inconsistency between the second statement and the evidence given at trial. That was a finding that was open for the learned trial Magistrate to make. 48 The learned trial Magistrate acknowledged that the complainant was, at times, combative and argumentative as a witness. His Honour nonetheless found that she was “a credible witness who did not seek to embellish her evidence and made 40 JGS v The Queen [2020] SASCFC 48, at [201] (Lovell, Peek and Bampton JJ agreeing). 41 Written Submissions of the Respondent dated 9 February 2026 (FDN 8), at [9]. 42 M B v Police [2019] SASC 58 at [53] (Parker J) referring to Fox v Percy (2003) 214 CLR 118 at 128 (Gleeson CJ, Gummow and Kirby JJ). -- 12 of 14 -- [2026] SASC 30 Gray J 11 appropriate concessions when she was uncertain”.43 His Honour considered the extent of the inconsistencies in the accounts given by the complainant and concluded, inter alia, “I do not consider that any inconsistency in this case to be sufficiently serious to affect my assessment of her as a witness. I am satisfied beyond reasonable doubt having heard the complainant’s evidence that she was struck in rapid succession to the left and then to the right side of her head by the accused.” 44 49 The learned trial Magistrate had the benefit of seeing, hearing and assessing the evidence of the complainant. 50 The learned trial Magistrate found that, to the extent there was an inconsistency between the first and the second statement, he accepted the complainant’s explanation that she was in shock. That was a finding which it was open on the evidence for the learned trial Magistrate to make. 51 The learned trial Magistrate made further findings about the location of the strike that, in some way, reconciled the content of the first statement, being that there was a strike to the “back” of the head, with the finding that “the nature of the strike would have distributed the force from the base of the accused’s palm, back to her fingers, which wrapped around the side of her head.”45 This was a factual finding made on the assessment of the evidence. 52 It follows that I consider the findings made by the learned Magistrate were open to him. The appellant has not identified a basis for appellate intervention, as the appellant has not been demonstrated that there has been a miscarriage of justice occasioned by reason of the learned trial Magistrate’s findings and treatment of the complainant’s evidence having regard to the prior inconsistent statements made by the complainant. As I have found above, the learned trial Magistrate also considered the whole of the evidence. 53 I would dismiss Ground 5. Conclusion and orders 54 The appellant has not made out the grounds of appeal. It follows that I would dismiss the appeal. 55 The order of this Court is: 1. The extension of time to appeal is granted. 2. The appeal is dismissed. 43 Police v Agostino [2025] SAMC 140, at [23] (Magistrate Smolicz). 44 Police v Agostino [2025] SAMC 140, at [28] (Magistrate Smolicz). 45 Police v Agostino [2025] SAMC 140, at [25] (Magistrate Smolicz). -- 13 of 14 -- [2026] SASC 30 Gray J 12 56 I will hear the parties as to any further orders. -- 14 of 14 --