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Shi v Wilkie [2021] TASFC 1 (12 February 2021)

Last Updated: 18 February 2021

[2021] TASFC 1

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Shi v Wilkie [2021] TASFC 1

PARTIES: SHI, Xuede

v

WILKIE, Scott

FILE NO: 1658/2019

DELIVERED ON: 12 February 2021

DELIVERED AT: Hobart

HEARING DATE: 25 March 2020

JUDGMENT OF: Blow CJ, Wood J, Pearce J

CATCHWORDS:

Appeal and New Trial – Appeal – General principles – Right of appeal – When appeal lies – Error of law – Particular cases involving error of law – Failure to give reasons for decision – Extent of obligation to give reasons – Adequacy of reasons.

Aust Dig Appeal and New Trial [24]

REPRESENTATION:

Counsel:

Appellant: K Baumeler

Respondent: J Hartnett

Solicitors:

Appellant: Murdoch Clarke

Respondent: Director of Public Prosecutions

Judgment Number: [2020] TASSC 1

Number of paragraphs: 41

Serial No 1/2021

File No 1659/2019

XUEDE SHI v ACTING SERGEANT SCOTT WILKIE

REASONS FOR JUDGMENT FULL COURT

BLOW CJ

WOOD J

PEARCE J

12 February 2021

Order the Court

Appeal dismissed.

Serial No 1/2021

File No 1659/2019

XUEDE SHI v ACTING SERGEANT SCOTT WILKIE

REASONS FOR JUDGMENT FULL COURT

BLOW CJ

WOOD J

PEARCE J

12 February 2021

1. On 5 March 2019 the appellant was found guilty by a magistrate, Chief Magistrate Geason, of assault with indecent intent contrary to the Police Offences Act 1935, s 35(3). A motion to review the magistrate's decision was heard by Estcourt J. On 25 September 2019 his Honour dismissed the motion: Xuede Shi v Acting Sergeant Scott Wilkie, 25 September 2019. This is an appeal against his Honour's decision. The sole ground is that his Honour "erred in law by failing to give sufficient reasons and/or failing to sufficiently state the basis for making relevant findings". The ground of appeal includes particulars of the appellant's contentions about inadequacy of reasons, which are explained later in these reasons.
2. For the following reasons the appeal should be dismissed.

The summary proceedings

3. The charge was heard by the Chief Magistrate over the course of three days at the end of 2018 and early 2019. The complainant was a customer of the salon in which the appellant worked as a hairdresser. The prosecution case was that, in the course of a hairdressing appointment on 22 June 2017, the appellant assaulted her by placing his hands on her breasts and touching her thigh. The complainant and the appellant were the only persons present in the salon at the time. It followed that it was an "oath on oath case" and the credibility of the complainant, and the weight to be attributed to her evidence, as against the weight to be attributed to the evidence of the appellant, were of fundamental importance. The prosecution case depended on the learned magistrate being satisfied, beyond reasonable doubt, of the truthfulness and reliability of the complainant's evidence, despite the appellant's denials of indecent touching.
4. On 5 March 2019 the learned Chief Magistrate found the charge proved, although not in every particular. Her Honour found that the appellant, with indecent intent, touched the complainant on the thigh. Her Honour was not satisfied beyond reasonable doubt that the appellant placed his hands on the complainant's breasts.

The hearing

5. Because the first language of both the complainant and the appellant was Mandarin, the hearing before the Chief Magistrate was conducted with the assistance of an interpreter. The complainant gave evidence. The prosecution also adduced evidence from a police officer who spoke to the complainant shortly after the assault was alleged to have occurred.
6. The appellant gave an account of the relevant events during a police interview conducted on the day of the alleged assault. An audio visual recording of the interview was tendered and played to the magistrate. Her Honour was also given a transcript of the interview. At the hearing, the appellant gave evidence in his defence.
7. There were differences in the respective accounts given by the complainant and the appellant about the clothing which the complainant wore during the appointment, how she was touched and what was said by the appellant.
8. The complainant's account was that she attended the hairdressing salon by appointment at 10 am. She and the appellant were not known to each other. She was greeted by the appellant who, after a short wait, took her jacket and led her to a basin for her hair to be washed. Before washing her hair he helped her to put on a robe. According to the complainant, the robe was white, made of thin waterproof material and was open at the front. She sat facing away from the basin but lying back with her head over the basin so the appellant could wash her hair from behind. She said he put a towel across her chest. Her first complaint of touching was that the appellant "tapped on the towel" which was on her chest. The transcript of the hearing describes the complainant gesturing to the location and then saying that "it wasn't on top of my nipple but it was this area and then to me that's on my breast [sic]". She said that, after her hair was washed, the appellant put another cape on her to prepare for hair cutting. This second cape was put on over the first robe, and was tied at the back, "so there wasn't any opening at the front", and was long enough to cover her legs. During the haircut she became concerned because, while the appellant was cutting her hair, he left his hand "close to [her] breast" on a number of occasions. After the haircut, the appellant removed the tied cape he had placed on her, and then began to brush off "loose hair" from her face. She said he pulled down her singlet top and then used his fingers to pinch away hair from near her breast. He then "pulled down singlet even more showing my bra and the next thing I know that I was my bra and he tried to open up the right side of my cup". She said that "before he could open it to show my nipple I stopped him".
9. The complainant described how the appellant, after removing some of that loose hair from her, spent more time trimming her hair. She said that, while trimming her hair, the appellant squeezed her right thigh. She thought he used his left hand. She used her right hand to block him and tried to "shove him away", whereupon he commented that she had "very strong thighs". When she responded that she "did sports" he told her that she had a "really good body figure." She said she felt "invaded". As soon as he had dried and straightened her hair, she stood up wanting to pay and leave. She said that, as she did so, he told her again that she had a "good body figure".
10. When cross-examined, the complainant did not agree that the first robe which she put on was black and tied up with a belt. She maintained that the blow drying and hair straightening occurred after the second cape was removed. In her examination-in-chief she did not mention when the first cape was removed. During cross-examination the following exchange occurred:

"Once the haircut, straighten and blow dry was finished, you took the...cape off?.....You mean the washing gown because the cutting cape wasn't there.

Well, do you remember where the cape went?....I don't' recall where he put it, but he removed it.

You removed the robe?....Yes, I did. It was an open robe.

You then went to pay?....I went to get my jacket, then I went to pay."

11. The evidence of Constable Christine Young was that just after midday on 22 June 2017 she was asked to meet the complainant at an address in Sandy Bay. Constable Young took a statement from the complainant. No evidence was led about the contents of the statement other than that it was "in relation to an indecent assault" at a hair studio. However, Constable Young was asked to describe the complainant's demeanour while her statement was being taken. She said that the complainant "appeared upset as though she had been crying; she wasn't any more though". When asked in cross-examination what it was which made her think that the complainant had been crying, she answered that the complainant's eyes were slightly puffy, she kept clearing her throat and had a "tremor in her voice". Constable Young was one of two officers who later interviewed the appellant.
12. The appellant's evidence was different from the complainant's account in a number of respects. He said that, before washing the complainant's hair, he asked her to put on a gown which was black, which wrapped around the body and tied at the waist. He did not give evidence about the length of the gown but a generic photograph of what he said was a similar gown was tendered. In the exhibit it is called a "salon cape". It is depicted as a sleeved garment which wraps across the front of the wearer, fully overlapping so as to form a "v" shape near the neck, and is tied at the waist. As to its length, it extends to just below the knee of a standing female model. The appellant said that before washing the complainant's hair he placed a towel around her shoulders at the back.
13. Before beginning to cut the complainant's hair the appellant asked her to move to a hairdressing chair. Over the first gown she was wearing, the appellant placed on her a "barber cloth", which he described as a large black cloth which fastened at the neck at the back, together with a paper towel at the neck which he called a "neck ruffle". A photograph of that garment is shown on the same exhibit and called a "hair cutting cape". It is difficult to judge its length, but it is obviously longer than the gown. The appellant denied any indecent touching near or on the complainant's breasts while cutting the complainant's hair, and said that it was impossible because of the gown and cloth she was wearing.
14. The appellant gave evidence about the hair cutting process, and when the hair cutting cape and the neck ruffle were removed. The appellant described the complainant as having worn both garments while having her hair cut. Although the issue was addressed somewhat obliquely, the effect of the appellant's evidence was that after cutting the complainant's hair he took off the barber cloth and the ruffle. He described how, after cutting the complainant's hair, he dried it. There was fine cut hair, he said, on her neck and back which he removed with a brush and then with the blow dryer. He said that some pieces of hair were too fine to be removed in those ways, and that he used "[his] finger to pick it off, but in a very professional way". As he was removing the hair she was, however, still wearing the robe. He told the magistrate that the complainant removed that robe herself just as she was about to leave.
15. Also, he noticed a white hair which he, with the complainant's permission, removed from her head. He said that after cutting, drying and straightening her hair he noticed the white hair on her thigh, above her knee. His evidence was that he removed it for her, and that was the only time he touched her leg. The appellant was asked by his counsel whether he had talked to the complainant about the thickness of her leg. He answered:

"She measured it by herself at the beginning and then I replied, 'Yeah, it seems that your leg's thicker than mine', I just stated the facts."

16. When cross-examined the appellant told the magistrate that when he removed the white hair from the complainant, she asked to look at it and he gave it to her. He said that she had told him not to look at her legs. When it was suggested to him in cross-examination that he had twice told the complainant that she had "a good body figure" he denied it. He denied squeezing the complainant's thigh. He said he did not touch her thigh, just removed the hair "quite quickly".
17. The appellant's evidence was largely consistent with his account to the police in his interview. He told the police that after he had removed the haircutting cape from the complainant, he noticed a white hair. He asked her if he could pull it out. When she agreed he did so and he gave the hair to her. He said she put it on her leg, but, he said, he removed it with his hand and "dumped it". It was at the time he removed the hair from her thigh that he told her that "your legs are thicker than mine". He agreed that he may have used his hand to remove cut hair from her body and neck but said that it was not in an improper way. He agreed that as the complainant was about to leave the salon, he commented that she "had a good body figure", but that was because "we usually say something nice to customers when we finish a haircut".
18. The complainant, when it was put to her in cross-examination, denied that the appellant had touched her thigh when removing a white hair from her leg.

The magistrate's decision

19. The magistrate reserved her decision and gave it orally about a month after the conclusion of the hearing. Her Honour found the complainant's evidence to be "reliable and cogent, and in general terms ... not internally or externally inconsistent". She found that the complainant's evidence was supported by her demeanour while giving evidence and by her behaviour in making an immediate complaint. Her Honour was not, however, satisfied beyond reasonable doubt that the appellant had indecently touched the complainant on her breasts, and did not find that particular of the complaint proved. It is apparent from her reasons that her Honour was well aware of the need to, when considering whether she was satisfied beyond reasonable doubt of the complainant's evidence, consider the cogency of the appellant's evidence. Despite the evidence of the appellant, the magistrate was satisfied beyond reasonable doubt that the appellant squeezed the complainant on the thigh and that he did so with indecent intent.

The motion to review

20. The amended motion to review the decision of the Chief Magistrate raised two grounds:

(a) The first ground was that the learned magistrate erred in law in holding that, upon the whole of the evidence, the complaint was proved beyond reasonable doubt;

(b) The second ground was that the learned magistrate erred in failing to give sufficient reasons as to why the evidence of the applicant was rejected.

21. As to the first ground, the principles to be applied are well established. The review court was not to weigh the evidence and reach its own conclusion. What was to be considered was whether, on the evidence, the magistrate might, as a reasonable person, have come to the conclusion she did: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21; Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454; Cuthbert v Coates [2018] TASSC 7 at [4]- [5].
22. The principles to be applied to the ground asserting a failure to give sufficient reasons are equally well established and are stated by Wood J in Fenton v Lane [2015] TASSC 61 at [29]- [30] and by Brett J in Shepperd v Cannell [2018] TASSC 12. As to a case which depended on credit, Brett J stated in Shepperd, at [30], referring to Phillips v Arnold (above):

"The Full Court determined that the motion to review should be upheld on the basis that simply to state that evidence of the prosecution witnesses was preferred to that of the defendant, without explaining why that conclusion has been reached, did not fulfil the obligation to explain why the magistrate had been satisfied of guilt beyond reasonable doubt. Porter J, who agreed generally with the reasons of Crawford CJ, considered that in a criminal case which depends entirely on credit, in respect of a finding of guilt, it is not sufficient for a magistrate to explain why the prosecution evidence has been accepted, but it is also necessary to explain why the exculpatory evidence of the defendant has been rejected, beyond reasonable doubt. This view would seem to be consistent with the type of direction given to a jury in a typical 'oath on oath' case as explained in Liberato v The Queen [1985] HCA 66; 159 CLR 507."

23. Before the primary judge, the appellant did not strongly pursue the first ground. It was not contended that, on the evidence, the magistrate could not, as a reasonable person, have found guilt. The appellant's contentions focussed principally on the contention that the learned magistrate failed to give adequate reasons for rejecting, beyond reasonable doubt, the evidence of the appellant. That is, for failing to give any, or any adequate, explanation of why the appellant's evidence did not cause her to entertain a reasonable doubt of his guilt. It was argued that the magistrate failed to adequately address the conflicts between the evidence of the complainant and the evidence of the appellant. Wrapped up in the submission that the magistrate's reasons were insufficient was the contention that her Honour erred by making findings of fact not supported by the evidence. The notice to review did not assert or identify factual error, but it was argued that the magistrate's rejection of the appellant's account was based on a misunderstanding or misapprehension of his evidence.
24. The misapprehension contended for by the appellant to the primary judge concerned the magistrate's findings about the evidence of the appellant about the robes worn by the complainant at the time of the alleged assaults. Both the complainant and the appellant gave evidence that two garments were worn by the complainant at various stages. However they gave significantly differing descriptions of the garments, especially the garment first placed on her, which she wore under the haircutting robe. In her reasons the magistrate made the following comments:

"... in considering whether or not I could be satisfied beyond reasonable doubt in general terms of [the complainant's] evidence I am able to take into account, and do take into account, Mr Shi's evidence and the cogency of his evidence. As I understand Mr Shi's evidence, the first robe that he placed on [the complainant] was a robe that was long and wrapped around her and tied around the waist.

Then when he took her to the chair he placed another robe on her which fastened at the back. In my view this impacts on the cogency of Mr Shi's evidence. That's because at the very least when Mr Shi says he cut a white hair from [the complainant's] head, and then he noticed the hair on [the complainant's] thigh, it is his position that [the complainant] made a comment about him not looking at her thighs, and he said something like, 'Your legs look bigger than mine'.

However, Mr Shi's evidence is that [the complainant] at the very least had a robe on that was wrapped around her and tied at the waist, which would presumably mean that her thighs were not visible. Mr Shi accepts that there was a discussion about [the complainant's] thighs, so it seems to me that this evidence about the discussion about [the complainant's] thighs is consistent with [the complainant's] evidence that she's only wearing the first robe that Mr Shi placed on her, which [the complainant] says was open at the front, which would mean that her thighs would be visible."

25. The magistrate continued:

"And as I understood Mr Shi's evidence he said that that first robe that was put on is not taken off until just before she left. So, in my view, this impacts on the cogency of his evidence when he says that he was able to view and make comments about her thighs."

26. The magistrate further commented that if the appellant's evidence of the outer garment worn by the complainant was true, it "seems improbable that any hair would have ended up on her collarbone and chest area, and her hair that was being cut was well below her shoulder".
27. Despite there being no ground asserting factual error, the submission that the magistrate made a factual error was accepted by the primary judge. He said:

"The gravamen of the applicant's argument is that while it would appear that two areas of his evidence were used by the learned magistrate to detract from the veracity of his account, namely, her Honour's conclusion that the complainant's thighs would not have been visible on the applicant's account of her wearing a salon robe, and her Honour's conclusion that the account of the robe covering the complainant made it unlikely that hairs would be on her skin requiring removal, misconstrued the evidence given by the applicant.

I agree. The applicant's evidence, properly understood, was that the white hair on the thigh incident, and the subsequent discussion about the complaint's thigh, had occurred after the salon robe had been removed. He also plausibly explained why small hairs commonly need removing even when a customer is wearing a robe.

It follows that her Honour's reasoning was to that extent based on a false premise."

28. For our part, we are not satisfied that the primary judge accurately stated the factual issues asserted to him by the appellant, or that the factual misconceptions asserted by the appellant were established. In fairness to the primary judge, identification of the asserted errors is difficult because the appellant's submissions to him were intertwined with the arguments about the magistrate's failure to address the differences in the respective versions. The significance of the differences was not clearly articulated. The appellant’s evidence was not that “the white hair on the thigh incident” occurred “after the salon robe was removed.” In evidence, the appellant’s reference to the salon robe was to the robe he first placed on the complainant before washing her hair. On both versions of the evidence that first robe, however it was described, was not removed until just before the complainant left the salon and after the alleged touching. Her Honour's comment that the complainant "at the very least had a robe on that was wrapped around her and tied at the waist" conveyed her Honour’s view that the appellant’s description of that robe was not consistent with his ability to see and make the admitted comment about the complainant’s thigh. As to the findings about the hair on the chest, it was not suggested that her Honour's findings were not open to her or that her findings were necessarily inconsistent with the appellant's evidence. Again, the complaint was primarily about inadequacy of reasons.
29. Be that as it may, his Honour, despite finding that the factual errors and errors of reasoning asserted by the appellant were established, dismissed the motion under the Justices Act 1959, s 110(2)(ab), which provides for that outcome "in a case where the court considers that no substantial miscarriage of justice has occurred, even though the cause or matter raised by the motion might be decided in favour of the applicant". It is the Justices Act form of what is referred to as the proviso. His Honour, at [7] found that:

"There was, to my mind, ample evidence upon which the learned magistrate could have accepted the prosecution evidence and rejected the exculpatory evidence of the defendant in order to have been satisfied of the applicant's guilt beyond reasonable doubt."

30. His Honour then stated the conclusion he had reached on the evidence, in these terms:

"The complainant was a credible witness whose evidence of being indecently assaulted was consistent with the timing and manner of her complaint to the police that she had been so assaulted. Her recent complaint, once accepted, was some evidence in itself of the indecent assault. On the other hand, the defendant's account of an innocent touching while removing the white hair from the complainant's thigh ought to be rejected, not on the basis that the complainant's thigh would not have been visible under the salon robe but because the admitted touching was accompanied by a highly inappropriate comment about the size of the complainant's thigh, and was followed a short time later as the complainant left the salon by another highly inappropriate comment to the effect that the complainant had 'a good body figure.' These comments were to my mind, in the circumstances, of a sexual nature and, in my view, they render the applicant's account of an innocent touching incapable of acceptance."

31. As to the ground contending the inadequacy of the magistrate's reasons, his Honour said only:

"The fact that the magistrate may have given insufficient reasons for her erroneous reasoning adds nothing to the equation."

The appeal

32. Application of the proviso does not fall for consideration unless there was some irregularity at trial whereby, in terms of s 110(2)(ab), a cause or matter raised by the motion might be decided in favour of the applicant. The judge determining the motion must then decide whether, despite the irregularity, no substantial miscarriage of justice has occurred. It was for his Honour to make his own independent assessment of the evidence and determine whether, making allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the appellant was proved beyond reasonable doubt to be guilty of the offence the magistrate found proved: Weiss v The Queen [2005] HCA 81, 224 CLR 300 at [41].
33. With respect to the primary judge, we do not accept the correctness of the approach his Honour took to application of the proviso. Weiss and subsequent authorities make clear that the question upon which application of the proviso depends is not whether there was evidence upon which the magistrate could have found guilt. In GBF v The Queen [2020] HCA 40, 94 ALJR 1037 the High Court considered whether the Court of Appeal of the Supreme Court of Queensland was correct to find that no miscarriage of justice had occurred as a result of an erroneous direction by a trial judge to a jury. At [27], Kiefel CJ, Bell, Keane, Gordon and Edelman JJ observed:

"The respondent did not submit that, in the event that this Court determined that the impugned statement occasioned a miscarriage of justice, the appeal should be dismissed under the proviso. This was appropriate. ... Whether, as the appellant argued, the impugned statement was an irregularity of a kind that is beyond the reach of the proviso need not be addressed. It suffices to observe that in these circumstances, in which the impugned statement had the capacity to affect the jury's assessment of the credibility and reliability of the complainant's evidence, it was not open to find that no substantial miscarriage of justice had actually occurred: Collins v The Queen  [2018] HCA 18 ; (2018) 265 CLR 178 at 191-192  [36] -  [37]  per Kiefel CJ, Bell, Keane and Gordon JJ."

34. See also AK v Western Australia [2008] HCA 8, 232 CLR 438 per Gummow and Hayne JJ at 457 [59].
35. In argument, the primary judge expressly raised the operation of the proviso with counsel for the appellant. No submission was made that it could or should not be applied. Moreover, there is no ground of appeal which contends that this was not an appropriate case for application of the proviso, or that the primary judge applied an incorrect test. Application of the proviso in appeals in which the finder of fact is a magistrate, and the operation of the applicable legislation, were not argued before this Court and do not fall for our determination.
36. The sole ground of appeal attacks the sufficiency of the learned primary judge's reasons and asserts a failure to sufficiently state the basis of the "relevant findings". The notice of appeal contends, in summary, that his Honour's reasons were inadequate because:

(a) he failed to adequately explain why the evidence of the appellant did not cause him to have a reasonable doubt;

(b) his resolution of the competing accounts was "wholly inadequate" because, in finding that the comments made [by the appellant] were of a sexual nature and were thus inconsistent with an innocent and inadvertent touching of the complainant, his Honour:

(i) failed to explain why an innocent explanation for the comment about the complainant's thigh was excluded beyond reasonable doubt;

(ii) failed to give reasons for rejecting the appellant's innocent explanation for the "good body figure" comment;

(iii) failed to explain how a finding that comments were "inappropriate" led to a finding that the appellant's acts were with indecent intent; and

(iv) failed to explain how the making of an allegation could be construed as tending towards holding that an offence has been established.

37. The requirement for reasons was reviewed by the High Court in DL v The Queen [2018] HCA 26, 266 CLR 1. At [32] the majority, citing Wainohu v New South Wales [2011] HCA 24, 243 CLR 181 at [56], stated that the detail and content "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision", and continued at [33]:

"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. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial." [Citations omitted.]

38. Although his Honour's reasons were brief he, in our respectful opinion, sufficiently addressed the issues which he was required to address and which formed the basis of his decision. The reasons, and the transcript of the hearing, disclose that his Honour undertook his own independent review of the evidence. He stated the requirement of proof of a criminal charge beyond reasonable doubt. A fair reading of his Honour's reasons makes plain that his Honour was satisfied that, notwithstanding error by the learned magistrate in her reasons, guilt was proved to the criminal standard on the admissible evidence at the trial: Kalbasi v Western Australia [2018] HCA 7, 264 CLR 62 per Kiefel CJ, Bell, Keane and Gordon JJ at [12]. His Honour stated that he was satisfied that, despite the identified defects in the magistrate's reasons, no substantial miscarriage of justice occurred because:

(a) there was ample evidence from which the learned magistrate could have accepted the prosecution evidence and rejected the exculpatory evidence of the appellant;

(b) the complainant was a "credible witness";

(c) her evidence was consistent with the timing and manner of her complaint to the police;

(d) the appellant's account of an innocent touching was to be rejected because it was accompanied by a comment about the complainant's thigh, and a later comment that the complainant had "a good body figure".

39. Both comments referred to by the primary judge were admitted by the appellant. His Honour described both comments as "wholly inappropriate" and found them to be, to his mind, and in the circumstances in which they were made, "of a sexual nature". His Honour then stated the conclusion that the comments rendered the appellant's account of an innocent touching "incapable of acceptance." No ground of appeal alleges that his Honour made a factual or legal error, or made a finding which was not open to him. It was open to his Honour to expand on the reasoning process which led to that conclusion. However, in the circumstances of this case, his Honour's failure to do so did not make his reasons inadequate to the point of error.
40. If it were necessary for us to consider the merit of the primary contention advanced at the hearing of the motion to review that the magistrate had failed to give adequate reasons, we would have rejected that contention. Her Honour’s reasons were detailed and extensive and gave sufficient explanation for her findings and conclusion.

Result and order

41. The ground of appeal is not made out. The appeal should be dismissed.