Aiden Barlow v Joel Wiseman
[2014] ACTSC 166
•14 May 2014
AIDEN BARLOW v JOEL WISEMAN
[2014] ACTSC 166 (14 May 2014)
APPEAL - IN GENERAL – Appeal against conviction – Assault occasioning actual bodily harm – Appeal dismissed
Evidence Act 2011 (ACT), s 165(1)(c)
Magistrates Court Act 1930 (ACT), Pt 3.10
Cole v The Queen [2010] NSWCCA 227
Hanel v Shoemark [2010] ACTSC 67
M v the Queen (1994) 181 CLR 487
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 110 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 14 May 2014
IN THE SUPREME COURT OF THE )
) No. SCA 110 OF 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:AIDEN BARLOW
Applicant
AND:JOEL WISEMAN
Respondent
ORDER
Judge: Refshauge J
Date: 6 May 2014
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
On 4 December 2013, the Magistrates Court convicted Aiden Barlow of an offence of assault occasioning actual bodily harm and dismissed an alternative count of common assault. The events that gave rise to the charge against Mr Barlow arose on the evening of 17 August 2013, when he and his partner went out to dinner and then into Civic. Both of them were well affected by alcohol. It appears that, in Civic, there was a meeting between Mr Barlow’s partner and a former boyfriend of hers, and she hugged him.
That appears to have led to animosity between Mr Barlow and his partner and that continued when they ultimately arrived home. It led to an altercation in the bedroom. Mr Barlow’s partner then left the house and tried to find some assistance, and ultimately knocked on the door of a gentleman who took her in and called the police. As a result of the police being called, Mr Barlow was charged as indicated. On 16 December 2013, he appealed against the conviction. There is no appeal against the sentence imposed on him, which was a sentence of two months’ imprisonment, fully suspended, with a good behaviour order for fifteen months.
I have jurisdiction under Pt 3.10 of the Magistrates Court Act 1930 (ACT) to deal with appeals against convictions, and I set out in Hanel v Shoemark [2010] ACTSC 67 the approach that should be taken to such appeals. I apply them in this matter. In particular, it is important to recognise that the magistrate hearing the matter had the advantage of seeing and hearing the witnesses and, particularly where credibility is involved, that advantage can be quite significant.
In this case, after the police were called, a statement was taken from Mr Barlow’s partner and observations were made by the police officers of her demeanour at the time. She was clearly very upset and sobbing. When she arrived at the home of the neighbour, who took her in, she was seeking help and she did not initiate the suggestion that the police should be called.
When it came to the hearing, she abandoned her claim that Mr Barlow had assaulted her; indeed, earlier she had written to the Director of Public Prosecutions suggesting that he should not continue with the proceedings because she did not agree that what she said to the police on the night was true and she said she had made a false allegation of assault against Mr Barlow. She had an explanation as to how the injuries were caused because she said that, on the evening, she had fallen down some stairs and when exiting her home she had fallen in the garden.
Although there was some support for this, and this would have given some support to the injuries that the police noticed and photographed, it seems to me that, in particular, the injuries that the police saw around her neck could not be explained in either of those circumstances and the police officer was permitted to give evidence from his experience that at least one of the injuries around her neck appeared to be caused by the application of a thumb to her neck, consistent with the allegation that she had originally made.
Some evidence was given by a tenant at the premises, Matthew Simpson, and his evidence seemed to support the evidence of Mr Barlow that nothing untoward had occurred, but it was clear that he was not actually present in the room and his evidence was not substantially inconsistent with the original version of events that Mr Barlow’s partner gave.
The learned Magistrate gave an ex tempore decision at the end of the hearing and it is not appropriate to subject such a decision to a minute and exhaustive examination.
It was challenged that he should have given himself a direction under s 165(1)(c) of the Evidence Act 2011 (ACT) because of the high level of intoxication of Mr Barlow’s partner. No such request was made to the Magistrate, who was clearly, in any event, well aware of the condition of all those involved; at least three of them having been well intoxicated on the evening. Unsurprisingly, he relied heavily on the independent evidence of the neighbour, with whom Mr Barlow’s partner sought, refuge, and his clear and unchallenged description of her demeanour, of what she said and the circumstances of her saying it, as well as the evidence of the police officer. It was well within appropriate limits to do so.
His Honour also rejected the evidence of Mr Simpson, although he did that in fairly simple terms. As I have indicated, however, it seems to me, having read carefully the evidence of Mr Simpson, that although it was to some extent supportive of Mr Barlow’s case and that of the case given at trial by Mr Barlow’s partner, inconsistent with the evidence she had given to police, that Mr Simpson’s evidence did not substantially undermine any of the matters that led his Honour to find that the offences were proved.
I have had the advantage of being taken to a decision of the Court of Criminal Appeal of New South Wales, Cole v The Queen [2010] NSWCCA 227, which addressed a very similar situation to that in this case, where an appeal against conviction was also dismissed. The victim of the offence had there similarly decided to withdraw her support for the prosecution and claimed that she wanted to retract her statement; in that case she said it had been caused because she had been heavily sedated and not fully conscious at the hospital when she was told what her friends and family thought had happened, and that led to her statement which she said was “not the truth”. She said in evidence that she had no recollection of the events described after she re-read the statement. This is similar to the circumstances of this appeal. That decision supports the approach of the learned Magistrate.
In all the circumstances, the claimed errors by the learned Magistrate do not seem to me to be errors that would justify the disturbing of the conviction. Having read carefully the evidence, as I am required to in an appeal of this kind (see what the High Court said in M v the Queen (1994) 181 CLR 487), I am satisfied that none of the challenges to the learned Magistrate’s decision are made out, and that the appeal must be dismissed.
I dismiss the appeal.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 6 August 2014
Counsel for the Applicant: Mr J Sabharwal
Solicitor for the Applicant: Rachel Bird & Co
Counsel for the Respondent: Mr D Sahu Khan
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 6 May 2014
Date of judgment: 14 May 2014
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