Spenser Wilkinson J:

[1] This appeal concerns a quarrel between two families which eventuated in a fight. The history of the case is somewhat unfortunate in that the charges preferred were really unsuited to the circumstances. The original charge was house-trespass with intent to cause hurt under s 448 of the Penal Code. This was amended when the trial began to a charge of house-trespass after preparation made for causing hurt under s 452 of the Code. In my opinion, however, the real complaint was causing hurt and indeed the prosecution in the Court below appears to have been conducted and presented the case substantially as a case of causing hurt, the evidence regarding the alleged preparation having been given quite incidentally in the course of long descriptions of an actual fight.

[2] The result of charging the offence in this way was that difficult questions of law arose as to whether there was technically a house-trespass and whether or not there was preparation for causing hurt, with the result that the real issues of fact tended to become obscured. I do not know whether the learned Magistrate considered amending the charge at the close of the case for the prosecution, but I cannot help feeling that the trial would have been more satisfactory had he amended at that stage. At the hearing of the appeal the learned Deputy Public Prosecutor conceded that the case was more properly one of causing hurt and therefore the questions of law I have mentioned were not argued before me and the appeal proceeded mainly upon the questions whether upon the evidence the learned Magistrate was justified in convicting and whether or not he had misdirected himself upon the facts or upon the burden of proof.

[3] The 3rd appellant having himself received sufficient injuries during the incident to keep him in hospital for three days made the first report to the Police and subsequently made a complaint to a Magistrate. What action, if any, has been taken on that complaint, I do not know and I have not inquired; but as there may be further proceedings in regard to this incident I prefer in this judgment to say as little about the facts as possible. The absence of any detailed comment upon the facts, however, must not be taken to mean that I have not given the very fullest consideration to the arguments put before me in this appeal and to the grounds of decision of the learned Magistrate.

[4] Two questions of fact, however, must be touched upon. There is no doubt upon the evidence that the complainant and his nephew both received hurt at the hands of the 1st and 3rd appellants; but the prosecution version in no way accounts for the equally undoubted facts that the 3rd appellant received quite considerable injuries; and that the 1st appellant received injuries to his hand which, I think, could not possibly have been caused by a simple blow with his own fist, unless it were a knock-out blow of considerable violence, of which there is no evidence at all. It appears to me that a story which leaves entirely unexplained important facts such as these cannot be wholly true and the learned Magistrate does not appear to have appreciated the importance of this point. I would add in fairness to the Magistrate that if the charge had been directed to the question of causing hurt he might not have overlooked this serious defect in the prosecution story.

[5] The other question which must be mentioned is the question of timing. The learned Magistrate expressed the opinion that if the fight took place at about 9.15 pm it was quite impossible for accused Nos 1 and 3 to be examined by the Doctor between 9 p m and 9.30 pm. None of these times, however, purported to be exact and there was very strong evidence given on behalf of the defence that appellant No 3 was at the Lido Cinema until the conclusion of the picture at about 8.50 pm to 9.15 pm. If this question of timing was one of the reasons why the learned Magistrate considered the story of the defence improbab