Alvarez v Girvan
[2024] ACTSC 53
•29 February 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Alvarez v Girvan |
Citation: | [2024] ACTSC 53 |
Hearing Date: | 9 February 2023 |
Decision Date: | 29 February 2024 |
Before: | Loukas-Karlsson J |
Decision: | Appeal dismissed. |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from conviction – where appellant found guilty of two offences of common assault – whether findings of guilt were unreasonable and could not be supported by the evidence – whether there was a failure to cross-examine prosecution witness by prosecutor – whether the Magistrate erred in giving himself a Murray direction – open to Magistrate to reject evidence of accused at first instance – appeal dismissed – convictions confirmed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 28 Crimes Act 1914 (Cth) s 23WA Evidence Act 2011 (ACT) s 38 |
Cases Cited: | Alexander v Bakes [2023] ACTCA 49 Dansie v The Queen [2022] HCA 25; 274 CLR 651 Featherstone v The Queen; Bloxsome v The Queen [2020] ACTCA 33 Fennell v The Queen [2019] HCA 37; 93 ALJR 1219 Finau v The Queen [2021] ACTCA 17 Fox v Percy [2003] HCA 22; 214 CLR 118 Garay v The Queen (No 3) [2023] ACTCA 2 Greenwood v Barlee [2018] ACTSC 46 Ji v Stone [2023] ACTSC 54 Kanaan v R [2006] NSWCCA 109 Laipato v Truman [2017] ACTSC 351 Lang v The Queen [2023] HCA 29; 97 ALJR 758 M v The Queen [1994] HCA 37; 181 CLR 487 McFarlane v Van Eyle [2022] ACTCA 68 Peverill v Crampton [2010] ACTSC 79; 19 ACTLR 26 R v Bragias [2016] NSWCCA 219 R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34 R v Livermore [2006] NSWCCA 334; 67 NSWLR 450 R v MRW [1999] NSWCA 452; 113 A Crim R 308 R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 R v Teasdale [2004] NSWCCA 91; 145 A Crim R 345 Saddik v The Queen [2018] VSCA 249 Soames v R [2012] NSWCCA 188 Vogel v Broomhall [2019] ACTSC 194 Ward v Richardson [2021] ACTSC 130 |
Parties: | Patrick Phillip Alvarez ( Appellant) Scott Girvan ( Respondent) |
Representation: | Counsel K Bolas ( Appellant) J Hiscox ( Respondent) |
| Solicitors Kim Bolas Legal Group ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 25 of 2022 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 28 June 2022 Case Title: Police v Alvarez Court File Number(s): CC21/6158, 6160 |
LOUKAS-KARLSSON J:
Introduction
1․This is an appeal from the conviction of Mr Alvarez (the appellant) upon two charges of common assault (CC2021/6158, CC2021/6160), contrary to s 26 of the Crimes Act 1900 (ACT) (Crimes Act). The appellant was found not guilty of two other offences, the first charge being an act endangering health (CC2021/3468), contrary to s 28 of the Crimes Act, and the second being the alternative charge of common assault (CC2021/6157).
2․The decision followed the hearing of the matter on 21 February and 5-6 May 2022. Magistrate Morrison (the Magistrate) delivered his decision on 28 June 2022: Police v Alvarez (ACT Magistrates Court, unreported, 28 June 2022) (Alvarez). The matter proceeded to sentence on the same date. For each offence, the appellant was convicted and sentenced to a $1,000 fine.
3․I note that the day of the events that gave rise to this appeal, 31 March 2021, was a sad occasion. All concerned were grieving the death of a loved family member.
4․In the course of the proceedings and in his decision, the Magistrate and counsel who appeared before the Magistrate referred to witnesses by their first names. For the sake of consistency, I will do so as well. No disrespect is intended. In this case, first names are important for both clarity and consistency.
Grounds of the appeal
5․The appellant appeals from the findings of guilt in relation to the charges of common assault (CC2021/6158 and CC2021/6160) concerning two victims, Noel and Alec. The appellant sought that the convictions be quashed and verdicts of not guilty be entered on each count. The sole ground of appeal set out in the Notice of Appeal filed on 24 September 2022 alleges as follows:
That the decision[s] on the two assault charges were unsafe and unsatisfactory having regard to the evidence.
(emphasis added.)
6․The notice was not drafted using the now accepted terms, that is unreasonable and unsupported having regard to the evidence, as discussed below at paragraphs [14]-[18]. Nevertheless the grounds will be dealt with as a matter of substance not nomenclature.
7․In written submissions, counsel for the appellant expressed the grounds of appeal as follows:
(a)The verdict was unreasonable; and
(b)The verdict was unsafe.
(emphasis added.)
Background
8․The Magistrate in his reasons for decision provided a useful summary of the conduct which gave rise to the charges against the appellant. It is convenient to refer to that at this juncture:
On 31 March 2021, an incident occurred at a unit in [Taylor, ACT]. The former occupant of the unit had died the day before. [H]is two sisters, Emma and Gabriella, met at the unit at about 3.00pm on 31 March.
[Emma and Gabriella] were accompanied by Gabriella’s daughter, [Rebecca] and her son, [the appellant], and Emma’s husband Noel and their son Alec. It was a sad occasion and all parties were grieving.
…
What took place at the unit [gave] rise to four charges against [the appellant]. The first is that he strangled Emma who is, of course, his aunt. In the alternative, his alleged conduct is charged as common assault. The second charge is that he assaulted his uncle Noel, and the third that he assaulted his cousin Alec.
9․In written submissions, counsel for the appellant submitted that the following questions also arose as issues on appeal:
(a)Was there a substantial miscarriage of justice because of the failure of the prosecution to challenge the evidence of Rebecca, Emma and Gabriella, on the basis of bias and partiality and despite the absence of such a challenge, the advancement of an argument to [the Magistrate] in the prosecutor’s closing address that the evidence of those witnesses lacked credibility and were partial to the interests of the appellant?
(b)Did [the Magistrate] have enough evidence to determine beyond reasonable doubt, that the Appellant assaulted Alec when he had the evidence of the appellant, Emma, Rebecca and Gabriella to consider?
(c)Should [the Magistrate] have given himself a Murray direction, see R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 (Murray) at [19], to determine the assault against Noel when he had the evidence of the appellant, Rebecca, Emma and Gabriella to consider?
10․In oral submissions at the hearing before me, counsel for the appellant particularised further ‘grounds’. It was later stated that these ‘grounds’ could be described as “reasons for why the ground of appeal is made out”. These were outlined in oral submissions by counsel for the appellant as grounds concerning s 38 of the Evidence Act2011 (ACT) (Evidence Act) and the Murray direction.
11․Additionally, counsel for the appellant strayed into submissions in relation to the sentencing of the appellant, however there was no appeal against sentence in the Notice of Appeal before the Court.
12․In my assessment there are broadly three grounds of appeal put forward in the written and oral submissions of the appellant:
(a)First that the verdicts were unreasonable and unsupported having regard to the evidence (Ground 1).
(b)Second that the Magistrate should not have given himself a Murray direction (Ground 2).
(c)Third that there was a substantial miscarriage of justice in circumstances where the prosecution, having not sought to cross-examine witnesses under s 38 of the Evidence Act, advancing in closing submissions that the witnesses lacked credibility due to bias (Ground 3).
13․These three grounds were not particularised in this way in the Notice of Appeal. It was confirmed via email with both parties that all three grounds had been addressed in written and oral submissions. It was further confirmed by both parties that an opportunity granted by the Court for further submissions would not be necessary to be undertaken in these circumstances. Both parties therefore relied on their previous submissions.
Unreasonable or not supported by the evidence
14․Before considering the jurisdiction of the Court and the nature of the appeal, it is appropriate that I deal with the terminology used by counsel for the appellant in the Notice of Appeal, as discussed earlier.
15․An appeal ground against conviction being phrased as “unsafe and unsatisfactory” is not appropriate and has been described as a “unsafe substitute” for a ground which asserts the verdict is unreasonable or cannot be supported by the evidence (Featherstone v The Queen; Bloxsome v The Queen [2020] ACTCA 33 at [31]-[40]).
16․The primary authority is M v The Queen [1994] HCA 37; 181 CLR 487 (M v The Queen) in relation to whether a jury verdict is unreasonable or cannot be supported having regard to the evidence. This matter is, of course, an appeal from a Magistrate not an appeal from a jury verdict though conviction appeals from the Magistrates Court often rely on M v The Queen.
17․The correct approach in determining a ground based on M v The Queen that contends a conviction is unreasonable or cannot be supported was summarised in Finau v The Queen [2021] ACTCA 17 at [37]:
The function of this Court in determining this ground is that stated by the High Court in Pell v The Queen [2020] HCA 12; 268 CLR 123 at [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ):
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
18․The ground of appeal relied upon by counsel for the appellant, being that the findings of guilt were unsafe and unsatisfactory, is more appropriately understood to be that the findings of guilt are unreasonable and cannot be supported by the evidence, and indeed “unreasonable” was referred to in the written submissions as opposed to the Notice of Appeal.
Jurisdiction of the Court
19․This appeal is brought pursuant to ss 208(1)(b) and 214 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). Section 208(1)(b) concerns appeals against conviction for offences heard summarily. Jurisdiction to hear such an appeal is provided for by s 207 of the Magistrates Court Act. Section 214 provides that, in appeals to which s 208 applies, the Supreme Court “must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact”.
Nature of the appeal
20․An appeal brought pursuant to s 208(1)(b) is an appeal by way of rehearing. The principles to be applied have been discussed in Peverill v Crampton [2010] ACTSC 79; 19 ACTLR 26, Greenwood v Barlee [2018] ACTSC 46 and Ward v Richardson [2021] ACTSC 130.
21․Subsequently, the decisions of McFarlane v Van Eyle [2022] ACTCA 68 (McFarlane) and Ji v Stone [2023] ACTSC 54 have explored the application of M v The Queen in relation to appeals from the Magistrates Court. The below was stated by Kennett J in McFarlane at [97]
… I do not think it follows that the contention that a verdict was unreasonable or not able to be supported by the evidence is not a proper ground of appeal from that verdict to the Supreme Court. To conclude that it is not a proper ground would contradict the basis on which many decisions of the Supreme Court and at least two decisions of this Court have proceeded (Muench v McCue [2020] ACTCA 17 at [109]-[110]; KA v Linden [2021] ACTCA 22 at [65]-[70]). In my view, unreasonableness of the result or lack of a sufficient basis in the evidence is a species of error that would justify setting the conviction aside in an appeal governed by s 214 [of the Magistrates Court Act].
22․More recently, the Court of Appeal in Alexander v Bakes [2023] ACTCA 49 (Alexander) at [17] agreed with Kennett J’s analysis in McFarlane. Thus, unreasonableness of the verdict is a species of error that will justify setting aside a verdict in an appeal governed by s 214, but that an appellant “does not need to make out a ground pitched at that level” in order to succeed.
23․The Court of Appeal in Alexander went on to state at [18]-[23]:
Accordingly, an appellant may succeed in an appeal under s 214 of the [Magistrates Court Act] by demonstrating that the magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed. Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision.
It may also be accepted that unreasonableness is a species of factual error which may, if established, justify this Court setting aside the appeal judge’s orders pursuant to s 37O(1) of the [Supreme Court Act].
In determining whether there is a material legal, factual or discretionary error, the appellate court must observe the ‘natural limitations’ of proceeding on the record, including, as observed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23]:
…the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witness’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share.
Consideration of whether the appellant has demonstrated error in the magistrate’s decision must also take account of the pressures of the Magistrates Court.
It must always be borne in mind that the appeal is a “process for the correction of error”: McFarlane at [96]. Two consequences flow from this. First, the onus is on the appellant to demonstrate that there is error in the decision below: Allesch at [23]; Lukatela v Birch [2008] ACTSC 99; (2008) 223 FLR 1 at [19]. Second, it is incumbent on the appellant to identify the alleged error in the magistrate’s decision in their grounds of appeal: Carroll v R [2009] HCA 13; 254 CLR 259 at [8]; R v Ralston [2020] ACTCA 47; (2020) 285 A Crim R 159 at [127].
If an appellant identifies the ground of appeal from the Magistrates Court as being that the verdict is unreasonable, the Court will proceed on the basis that the appellant challenges the Magistrate’s ultimate factual finding. If an appellant wishes to challenge any intermediate factual finding, such a challenge should be pleaded as a specific ground of appeal.
(emphasis added.)
(citations omitted.)
24․I note that the first ground of appeal in this case is that the finding of guilt is unreasonable and cannot be supported having regard to the evidence. Consequently, the appellant challenges the Magistrates ultimate factual finding.
Evidence before the Magistrate
25․The prosecution case at first instance was summarised by the respondent to this appeal as follows:
…[O]n 31 March 2021 the appellant and a number of family members… attended a recently deceased relative’s house. Upon entering the residence, [Emma] fell to the ground as she was ‘overborne with grief’. Her son [Alec] asked for everyone to give her some room, but the appellant threatened him and struck him in the face (charge of common assault). At this time [Emma] attempted to call the police, but the appellant put a hand to her throat and began choking her (charge of choke, and common assault back up charge). Shortly after this, [Noel] left the apartment to assist identifying the residence to police. The appellant also left the apartment and pushed [Noel] whilst outside the unit (another charge of common assault).
26․The prosecution case was accepted, in part, by the Magistrate. That is that the assaults against Alec and Noel were proved to the requisite criminal standard. The Magistrate, however, did not accept beyond a reasonable doubt the evidence that Emma had been choked. This is reflected in the finding of not guilty on the charge of act endangering health, along with the finding of not guilty on the alternative charge of common assault.
27․Evidence in the prosecution case at first instance was given by Emma (the appellant’s aunt), Noel (Emma’s husband), Alec (Emma’s son), Gabriella (the appellant’s mother) and Rebecca (the appellant’s sister). The appellant then gave sworn evidence.
28․The evidence also included an expert report by Dr Van Diemen dated 17 June 2021 regarding Emma’s presentation at the Canberra Hospital on 31 March 2021. Both Emma and Gabriella made a call to Emergency Services (triple zero calls), recordings of which were also before the Magistrate in evidence. There were also five police statements in evidence before the Magistrate, being the statements of Constable James, Constable Pehlan, Constable O’Shaughessy, Constable Drege and Constable Girvan.
29․In order to consider whether the findings of the Magistrate at first instance were unreasonable and unsupported by the evidence, as asserted by the appellant, it is necessary to first make reference in some detail to the evidence given by the witnesses in this matter. The summary of the evidence below focuses on the matters relevant to the determination of the issues on appeal and the order of witnesses does not follow the order in which the witnesses gave evidence. This approach is adopted as it more clearly elucidates the issues on appeal.
Evidence of Emma
30․Emma gave evidence in the form of a recorded Evidence in Chief Interview (EICI), comprised of two separate recordings which were played to the Court. The recorded EICIs constituted the entirety of the examination in chief. Emma gave evidence that she arrived at a residence with her husband and son, Noel and Alec, where she met her sister, Gabriella, and Gabriella’s adult children, Rebecca and the appellant. The group entered the unit belonging to Emma and Gabriella’s deceased brother.
31․Emma gave evidence that she ‘took three or four steps into the doorway’ and became “overwhelmed with grief” for the loss of her brother and began crying on the floor. She was being comforted by her son and husband at the time. Emma gave evidence that her son asked the others present to “give her some room”.
32․Emma gave evidence that the appellant then became aggressive and was swearing. Emma’s son, Alec, was trying to push the appellant away from her. Emma described her husband or son helping her to stand up from the ground and then that something ‘came flying over’ towards her. Emma gave evidence that the appellant placed his hands around her neck and she “could not breathe”. Emma stated in evidence that her sister, Gabriella, was screaming out for the appellant to calm down and that she heard the appellant saying words to the effect of, “They’re going to cut you up” or “Do you want to be cut?”.
33․Under cross-examination, Emma was asked to tell the Court again what happened on the date of the incident, and her evidence was consistent with her EICI. She agreed that when she was on the floor, everyone was close enough to see her and that the appellant, Gabriella and Rebecca were “just about on top of her”. She demonstrated how the appellant held her by the throat – her actions were described by the Magistrate as “bringing her right hand up to her throat, open-palmed, and clasping her own throat with her right hand”. Emma gave evidence that she was standing when this occurred.
34․Emma gave evidence that, once she was up and standing, the others present could no longer see her. Emma described Rebecca and Alec being “around the corner” and gave evidence that she did not recall seeing anyone else other than the appellant. Emma gave evidence that Noel and Alec could not have been present as “they would not have allowed that to happen to her”. Emma was cross-examined on the implausibility of this version – being surrounded by people; her son helping her up and then no one witnessing the alleged choking that immediately followed – nevertheless, Emma maintained under cross-examination that this was the case. It was put to Emma that there was only a verbal exchange, and the appellant, Gabriella, and Rebecca left the unit shortly after. Emma disagreed and said they “took off running” after the incident.
35․Emma was cross-examined in relation to conversations she had recently had with her mother. Emma gave evidence that her mother called her at the request of the appellant and Gabriella and asked her not to give evidence in these proceedings. This evidence was not submitted to be of any consequence to this appeal.
36․In re-examination, Emma described that the appellant and his sister, Rebecca, were “coming over the top of” her, attempting to take her phone from her to prevent her from calling the police. Emma gave evidence that, eventually, the phone was taken by either Noel or Alec who spoke to the police.
Evidence of Emma’s son, Alec
37․Alec gave evidence that he attended the deceased’s residence with his mother, Emma and father, Noel. On arrival, Alec stated that his two cousins, the appellant and Rebecca, and his aunt, Gabriella, were already inside the unit. Alec gave evidence that he, his mother Emma, and his father Noel, entered through the landing and his mother, collapsed onto the floor and was “extremely distraught”. Alec gave evidence that he “came down to the floor with her” and tried to console her. At this point, Alec described the appellant and Rebecca standing over the top of them. Alec recalled asking the appellant and Rebecca to give them some room.
38․Alec gave evidence that he was assisting his mother to her feet and said, “Can you please give us some effing room” and pushed his left arm out, making contact with Rebecca. Alec explained that, after this time, it “became extremely chaotic”. Alec recalled the appellant saying words to the effect of, “Do not touch my fucking sister. I will fucking cut you”, at which time the appellant lunged forward in Alec’s direction. Alec described himself as being between the appellant and his mother. Alec gave evidence that the appellant struck him on the side of the head and then drew back, and that this “melee” occurred “within a very confined space of the corridor or landing of the premises”.
39․Alec recalled there being a “commotion”, which he described as Rebecca and Gabriella telling the appellant to “calm down”. Alec gave evidence that he stood forward saying, “Let’s all calm down”. He indicated that he was then standing with Rebecca and gave her a hug. At this time, Alec gave evidence that the appellant struck him again on the head and moved around behind him, at which point “something occurred” behind him. Alec recalled his father, Noel, was also behind him at this time. Alec then heard his mother say, “I’m calling the police” and saw Rebecca and possibly Gabriella attempting to get the phone from Emma. He turned to see his mother standing and attempting to call the police.
40․Alec gave evidence that he spoke to the police after the appellant, Gabriella and Rebecca “bolted”. The triple zero call was played, in which Alec was heard to say that his mother had been choked. Under cross-examination, Alec accepted that he did not see Emma being choked by the appellant as described in the triple zero call, and agreed with the inference that somebody must have told him about it. I note that in the triple zero call Emma said “This guy has assaulted us. His name is Patrick Alvarez. Patrick Alvarez has just assaulted my son, my husband and myself“ and Alec said “Patrick Alvarez has … struck at myself, my father and he um grabbed my mother’s throat“. Alec denied the suggestion that he must have seen the choke if it occurred because of the small space; his evidence was that Emma and the appellant were behind him, and his attention was focused on giving Rebecca a hug.
41․Alec accepted in evidence that the first physical contact was him touching Rebecca. Alec maintained that the appellant hit him.
Evidence of Emma’s husband, Noel
42․Noel gave evidence that he, his wife Emma and their son Alec attended the residence in the suburb of Taylor and met Gabriella, Rebecca and the appellant, who entered the unit first. Noel gave evidence that, upon entering the unit, Emma collapsed onto the floor and “was overcome by grief”. Noel gave evidence that Rebecca and the appellant were “not giving her any space to compose herself”. Noel recalled Alec standing and saying, “Just effing move back” or “Give her some effing space”.
43․Noel gave evidence that Rebecca and the appellant started carrying on. Noel recalled in evidence that Alec went to give Rebecca a hug and, as he did this, the appellant lunged over and “it appeared like he had hit Alec”. Noel conceded in evidence that he did not actually see if the appellant had hit Alec. Noel described the appellant being “hyperaggressive” at this time and saying words to the effect of “I’m going to fucking cut you all up”. In response to the appellant’s behaviour, Noel gave evidence that Emma said “I am going to call the police”. Noel observed another “melee to do with [the appellant and Rebecca] trying to get to the phone and get the phone from [Emma]”. Noel gave evidence that there were “lots of hands going everywhere”, and they were grabbing at the phone and grabbing at Emma.
44․Noel gave further evidence that, while on the phone to the police, Emma asked what the address was, and Noel went out into the foyer of the unit to check. Noel gave evidence that he came back into the unit but could not recall what he saw. Noel reportedly then left the unit a second time and, when he was heading back to the unit, the appellant came out and gave him “a really hard shove back”, then “jumped” in the lift and left. Noel confirmed he and the appellant were the only people in the foyer at that point. Noel continued back to the unit and saw Rebecca and Gabriella coming out of the unit. This was seconds after the appellant left.
45․Noel gave evidence that when he returned to the unit, Alec was comforting Emma. Noel recalled that Emma was “not properly coherent” at that time, and he assumed she was overcome by grief. After a few minutes, Emma told them that she had been choked.
46․Under cross-examination, Noel agreed there was “no barrier to him being able to observe Emma in [the] hallway”. Noel maintained that the appellant was by himself when he pushed him when outside the unit. It was put to him that he was with Rebecca and Gabriella. Noel maintained his evidence the appellant was alone.
Evidence of the appellant’s mother, Gabriella
47․Gabriella gave evidence that, upon meeting her sister Emma at the unit in Taylor, Emma immediately appeared “cold” towards her. Gabriella gave evidence that Emma entered the unit first, and everyone else entered together behind her. Gabriella recalled that, upon entering the unit, Emma “collapsed”. Gabriella gave evidence that she was trying to comfort Emma, and “gave her a hug”. Gabriella recalled Emma’s son, Alec, saying, “Give her space, give her space” and, in doing so, he hit Rebecca. Gabriella described Alec as “being quite aggressive in the way that he was carrying on”. Gabriella indicated that she got up and moved away from Emma.
48․Gabriella gave evidence that, at this time, Emma “started screaming… and then all of a sudden she has picked up the phone” and was calling triple zero. Gabriella recalled that “[the appellant] and Alec… had a verbal”. Gabriella gave evidence that at that point she said, “Let’s go”. Gabriella gave further evidence that she left with the appellant and Rebecca. Gabriella confirmed they all left at once, and she could not recall whether they took the stairs or the lift. Gabriella gave evidence that she did not see a physical interaction between the appellant and anyone else present, and that there was no point in time that she was not looking at the appellant.
49․Gabriella described the appellant in evidence as having been “sombre… quiet, and reserved”. Gabriella described him as the “peacekeeper”.
50․Gabriella gave evidence that once the appellant, Rebecca and herself left the location, she called police to let them know that her sister, Emma was ringing the police and that her report was fictitious. Gabriella also stated that, when the three of them left the unit, Noel was still inside. Gabriella gave evidence that she did not see the appellant push Noel.
51․Under cross-examination, Gabriella denied that she would lie under oath to protect her son. She also denied speaking to her mother to “pass along a message to Emma to not come to court”.
Evidence of the appellant’s sister, Rebecca
52․Rebecca gave evidence that Emma was “irrational”, “wasn’t making a lot of sense and was quite hysterical” when they arrived at the residence in Taylor. Rebecca described the “small, narrow hallway” and gave evidence that Emma “was crying” and that “she was waving her arms around and hitting the walls, throwing her body all over the place and at one point, she threw herself to the ground”. Rebecca gave evidence that Noel and Alec assisted to physically lift Emma up from the ground. Rebecca described that “there was a lot of yelling… a lot of noise [and] swearing”.
53․Rebecca gave evidence that Emma then lunged towards the appellant, before running down the hallway doing the same thing as previously: “flailing all over the place”. Rebecca gave evidence that Emma then pulled out her mobile phone and said to the police she had been attacked. Rebecca’s evidence was that the appellant then said, “Let’s just go” and Rebecca, Gabriella and the appellant left. Rebecca gave evidence that she was watching the appellant “when she could see him”, but that her “focus was on Emma”. Rebecca confirmed in evidence that she could not see the appellant at all times.
54․Rebecca gave evidence that her mother called the police because “Emma had called the police and [herself, Gabriella and the appellant] wanted the police to know this had happened” and that they had left.
55․Under cross-examination, Rebecca gave evidence that she could see Emma the entire time in the unit. Rebecca gave evidence that she never saw the appellant touch Emma and that she never saw the appellant assault anybody.
56․Under cross-examination Rebecca also gave evidence that she was not lying to protect the appellant and that she would not lie in court to protect the appellant.
Evidence of Dr Jane Van Diemen
57․The final witness in the prosecution case, Dr Van Diemen, gave medical evidence broadly concerning the charge of choking, for which the appellant was found not guilty.
Evidence from the police statements
58․Five police statements were tendered in the hearing at first instance. These statements provide evidence about the various police officers’ involvement with the matter, including recording Records of Interviews, recording a Family Violence Evidence in Chief with Emma and arresting the appellant.
59․This evidence is uncontentious. The statements were tendered with consent at first instance. I note that as police only become involved in this matter after the triple zero call was made by Emma. As a result, the evidence of the police officers is of no real assistance in my assessment of the issues on appeal.
Evidence of the appellant, being the defendant at first instance
60․The appellant gave evidence that he was outside the residence of his deceased uncle when Emma, Noel and Alec arrived. The appellant described himself, Gabriella and Rebecca taking the lift up to the unit and Emma, Noel and Alec taking the stairs. The appellant recalled the group walking into the residence and Emma immediately becoming “hysterical” and “collapsing onto the floor”. The appellant gave evidence that Alec and Noel were comforting Emma and everyone was, at most, two metres away from each other.
61․The appellant gave evidence that Alec loudly yelled words to the effect of, “Can you just give her some fucking space?” and the appellant observed that he did not think he or his sister, Rebecca, were in her space. The appellant responded to Alec saying, “Don’t fucking talk to my sister or family like that”. The appellant gave evidence that Emma “had gotten up off the ground and… she actually got more hysterical”. The appellant indicated that “the next thing he noticed was she had gone out the front of the unit and was on the phone calling police”, saying that she had been assaulted. The appellant recalled saying to his mother, “We’ve got to go”. The appellant gave evidence that he, Rebecca and Gabriella left the residence, however on the way out Alec tried to encourage them to return to the living room to sit down and talk, and to calm things down.
62․The appellant rejected the proposition that he, Rebecca and Gabriella left the location “because they did not want to get in trouble”. The appellant denied assaulting Emma, Noel, or Alec. The appellant also denied having spoken to his grandmother about Emma’s evidence or whether Emma should attend court.
63․Under cross-examination, the appellant indicated he did not recall his mother comforting Emma while she was on the ground. He agreed that Alec and Noel were assisting her. The appellant gave evidence that Alec’s arm “went out… and it hit the side of [Rebecca]”. The appellant agreed he perceived Alec’s tone and actions to be aggressive. The appellant denied that he threatened or struck Alec. The appellant gave evidence that the first time he saw Emma on the phone to police was when she was outside the unit. He denied being angered by this, and further denied ever touching Emma. The appellant agreed he was concerned police were going to attend, and he said he was “upset and nervous, but not aggressive”. The appellant agreed with his mother’s evidence that he was “reserved and not really talking”. The appellant denied that he pushed Noel.
Ground 1 - Were the findings of guilt unreasonable or unsupported, having regard to the evidence?
64․It is appropriate to first deal with the ground of the verdicts being unreasonable and unsupported by the evidence. This is for the reason that, if that ground were to be upheld, it would result in complete acquittals.
65․In his reasons, the Magistrate summarised the facts and the evidence given by the various witnesses. The Magistrate considered the evidence of the appellant and rejected it. The Magistrate properly recognised that, having rejected the evidence of the appellant, he nevertheless had to be satisfied of the prosecution case beyond reasonable doubt. After considering the evidence in the prosecution case, the Magistrate found the common assault charges concerning Noel and Alec proved.
66․Before making findings of fact pertaining to the elements of offences, the Magistrate must decide what evidence is and is not accepted. ln doing so, it is well established the Magistrate may accept a witness' evidence in whole, in part, or not at all: Fox v Percy [2003] HCA 22; 214 CLR 118 at [25] (Fox). Importantly and self-evidently, the Magistrate had the benefit of viewing all the witnesses in person. I bear this in mind in undertaking an analysis as to “whether … upon the whole of the evidence it was open to [the Court] to be satisfied beyond reasonable doubt that the accused was guilty” M v The Queen at 492-495 and see Dansie v The Queen [2022] HCA 25; 274 CLR 651 (Dansie) at [7]-[8]; Lang v The Queen [2023] HCA 29; 97 ALJR 758 at [251]. I also bear in mind that the nature of an appeal brought under s 214 of the Magistrates Court Act is a process for the correction of error and that “unreasonableness of the verdict is a ‘species of error’ that will justify setting aside a verdict in an appeal governed by s 214” Alexander at [17], quoting McFarlane at [97].
67․A key matter for the Magistrate in these proceedings at first instance was an assessment of the credibility of the evidence of each of the witnesses given the, at least partly, conflicting accounts. I note Garay v The Queen (No 3) [2023] ACTCA 2 as to the Magistrate’s assessment of credibility, at [31]-[32]:
Whatever differences exist between trial by jury and trial by judge alone, the advantage of being immersed in the atmosphere of the trial is one thing they undoubtedly have in common; an advantage not shared by the appellate court. The assessment of credibility involves more than a lawyerly analysis of the words on the page of a transcript. The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness.
I accept that, in principle, there could be cases in which a trial judge’s assessment as to credibility could properly be put to one side by the appellate court because the particular finding was inadequately explained or was predicated on a mistake of fact or law. It is probably unhelpful to suggest examples, lest they be understood to constrain the consideration of a future case.
(emphasis added)
68․The respondent on appeal correctly submitted the Magistrate had engaged in a methodical assessment of the evidence of each witness and an assessment of each witness’ credibility. Both parties at first instance made submissions with respect to credibility and the evasiveness of witnesses. The Magistrate in his reasons turned his mind to the matters of credibility, dealing with submissions made by defence counsel in closing regarding Emma being “evasive”, and descriptions of Rebecca as having a “tendency to be uncooperative”. As stated earlier, the Magistrate had a distinct advantage having seen the evidence of each witness in person (or via audio-visual link from the court): see Fox.
69․In assessing the Magistrate’s analysis in this regard, I take into account the considerations outlined in Fennell v The Queen [2019] HCA 37; 93 ALJR 1219, Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ said at [81]:
…The court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused’s guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability.
(emphasis added.)
70․The Magistrate, before considering what facts would inform his decision making, properly considered the evidence of each witness and the issues surrounding the credibility and reliability of the evidence, as follows:
(a)The Magistrate made reflections on the accuracy of Emma’s evidence stating, “she was not otherwise certain of the order in which things had taken place”. Despite finding Emma to “impress overall as a witness telling the truth”, the Magistrate nonetheless held concerns as to the reliability of her evidence as a result of the lack of detail, her “very emotional state at the time”, and in the absence of any witnesses to the alleged choking.
(b)The Magistrate doubted the appellant’s credibility. The Magistrate concludes that the appellant “was not telling the truth”. This is discussed later in this judgment at [79]-[80].
(c)The Magistrate found that Gabriella was “not a satisfactory witness”, leading the Magistrate to conclude that “Gabriella was also not telling the truth and also tailored her evidence in a way which she felt would assist [the appellant]’s case”. This is discussed further later in this judgment at [81]-[82].
(d)The Magistrate identified that Rebecca had a tendency to be “somewhat uncooperative in her testimony”. The Magistrate noted that her version of events was not supported by the testimony of any other witnesses:
Her version of events – that it was Emma who lunged at Patrick trying to grab him – is not supported by the testimony of any other witness including Gabriella and Patrick. In addition, she places Patrick at this point in time as being around the corner of the hallway – again something not supported by the testimony of any other witness. In the context of what is in issue in this case, these are not matters of mere peripheral detail.
The Magistrate concluded that she “was not telling the truth when she says that Emma lunged at Patrick”, which caused him to doubt the reliability of Rebecca’s evidence and conclude that “she has tailored her evidence in such a way which she feels will assist Patrick’s case”, as discussed later in this judgment at [83]-[84].
(e)The Magistrate explained why he accepted the evidence of Alec and Noel, based on the “straightforward and believable” manner in which their evidence was given, and the appropriate concessions made by both Alec and Noel. The Magistrate also rejected the suggestion there was concoction between Emma, Alec and Noel. This suggestion was rejected on the basis of concessions made by Alec and Noel, including that they did not see Emma being choked by the appellant. The finding that there was no concoction was open to the Magistrate based on the content of the triple zero phone call and an analysis of the relevant evidence. This is also discussed later in this judgment at [85]-[91].
71․The Magistrate’s review of the medical evidence demonstrated why he concluded that the evidence did not assist the prosecution case concerning the charge in relation to Emma.
72․I note that the Magistrate made the following findings arising from the triple zero call made by Emma which included:
(a)Hearing Emma ask Alec what the building number was; and
(b)That one or more of the appellant, Rebecca and Gabriella were present when the call was first made, but they had left when Alec spoke to the operator.
73․I note that I have listened to both triple zero calls, the call made by Emma and the call made by Gabriella, as part of my independent assessment of all evidence.
74․Following the Magistrate’s findings above in relation to the credibility and reliability of the witnesses’ evidence, the Magistrate underlined that he did not find the prosecution case proved because he had rejected the appellant’s version. As stated earlier, the Magistrate was demonstrably aware the prosecution was required to prove its case beyond reasonable doubt, separate from the consideration of the credibility of the appellant’s evidence.
75․Thereafter, in considering the facts and determining whether the offences were proved, the Magistrate undertook the following:
(a)Having rejected the appellant’s evidence, the Magistrate carefully considered the evidence of both Alec and Noel to find the elements of the assault against Alec proved (Alvarez at [63]); and
(b)Having accepted Noel’s version of events, and after giving himself in a Murray direction, he considered that the absence of corroboration of the assault against Noel was explicable given the positioning of persons at the relevant time. In accepting Noel’s evidence, the Magistrate was satisfied the assault on Noel occurred (Alvarez at [85]).
76․I note, in relation to the finding of the assault against Noel to be proven, that independent corroboration of a witness is not required to find guilt. It was not wrong for the Magistrate to have found the offence proved based on the evidence of Noel alone (Alvarez at [64]), after scrutinising the evidence carefully in accordance with the Murray Direction.
77․Counsel for the respondent submitted that, accordingly, the Magistrate correctly approached his task and, further that, the appellant did not identify the Magistrate as having misstated facts or evidence through his recitation, consideration or conclusion. Counsel for the respondent submitted that the real contention therefore appears to be whether it was wrong for the Magistrate to have rejected the evidence of the appellant, Rebecca and Gabriella, and to have accepted the evidence of Noel and Alec.
78․I note that the Magistrate indicated he “had no reason to doubt the honesty of Emma” but had concerns in relation to the reliability of her evidence. I further note that the Magistrate was not satisfied beyond a reasonable doubt of the alleged offences committed against Emma.
The Magistrate’s rejection of the appellant’s version of events
79․The appellant’s evidence (as observed by the Magistrate in his reasons) contained matters that were illogical and implausible, as well as “inexplicably inconsistent” with other evidence. Counsel for the respondent provided a number of examples. These examples are consistent with my review of the transcript of the first instance proceedings and include the following:
(a)Multiple witnesses described that the unit and hallway were a confined space, forcing everyone to be in close proximity to one another. In her evidence, Rebecca described the hallway as “small and narrow”. Contrastingly, the appellant’s evidence suggested himself, Gabriella and Rebecca were well removed from Emma:
So Emma was on the ground. Alec and Noel were comforting her. My sister was about, from what I remember, at least a couple of metres away and then I was maybe a metre away from my sister and my mother was to my left. My – Gabriella was to my left.
The Magistrate found that the appellant “was careful to place himself, Gabriella and Rebecca in positions which could not in any way be construed as crowding Emma”. However, the Magistrate described this evidence as being nonsensical alongside the appellant’s concession that Alec requested space for Emma.
(b)The appellant gave evidence that it was immediately after the comment made by Alec, “Don’t fucking talk to my sister or my family like that”, that Emma got up, left the unit and called police. The appellant’s evidence was that nothing other than a cursory comment had been made by Alec and then responded to by the appellant. The Magistrate found that it was inherently implausible that such a statement was the “only apparent basis upon which Emma might have felt the need to call police”, and to fabricate an allegation of assault to police.
(c)The appellant was the only witness who gave evidence that Emma left the unit to make the phone call. However, the evidence is contradicted by other witnesses, including Gabriella and Rebecca, who suggest the phone call took place inside the unit.
(d)The appellant in his evidence sought to paint himself as “mild and meek” and agreed with his mother’s evidence that he was “reserved” and “not talking much”. This was contradicted by the evidence of Rebecca (in addition to Emma, Noel and Alec) who described “a lot of yelling”, and that the appellant was yelling and screaming.
(e)The appellant did not testify in examination in chief that he saw Rebecca being hit by Alec; he did so, however, under cross-examination. Alec having “made contact” with Rebecca is inconsistent with the appellant’s version of events that he and Rebecca were some metres away from Emma (and Alec and Noel).
80․These matters resulted in significant doubts on the part of the Magistrate as to the reliability of the appellant’s evidence. These matters were in my view a proper basis for the Magistrate to reject the appellant’s evidence. The Magistrate then correctly went on to consider nevertheless whether he was satisfied beyond reasonable doubt of the prosecution case quite apart from the appellant’s evidence.
The Magistrate’s rejection of Gabriella’s evidence
81․As stated earlier, the Magistrate described Gabriella as “not a satisfactory witness” in Alvarez at [66]. Counsel for the respondent submitted that there were substantial inconsistencies concerning the key facts in issue which were sufficient to permit the rejection by the Magistrate of Gabriella’s evidence, including the following:
(a)The Magistrate in his reasons referred to Gabriella’s evidence that she went to the ground to “hug” and console Emma when she first collapsed. This was inconsistent with the evidence of all other witnesses who maintained that it was Alec and Noel who consoled Emma.
(b)In her evidence, Gabriella described the appellant as “sombre, quiet and reserved”, and “the peacemaker”. This was inconsistent with the evidence given by Emma, Alec, Noel and the appellant’s sister Rebecca. It is also somewhat inconsistent with the appellant’s testimony when he described saying to Alec, “Don’t fucking talk to my sister or my family like that”. The Magistrate described this in his reasons as perceived “reluctance to say anything indicating any aggression on [the appellant]’s part”.
(c)Gabriella described looking at the appellant the entire time they were in the unit:
Did you have Patrick in your view the whole time that you were in the apartment?---Yes.
Is it your evidence that there was no point in time when you were not looking at Patrick?---That's correct.
This was implausible given the conduct of Emma and the focus upon her, as well as the purported positioning of the respective parties.
82․On the basis of the foregoing, the evidence of Gabriella was assessed to be unreliable and was rejected by the Magistrate. The Magistrate concluded that Gabriella was “not telling the truth” and had, as stated earlier, “tailored her evidence in a way which she felt would assist [the appellant]’s case”. In my view, on my review of the transcript, I observe that these were not insignificant inconsistencies and the assessment of the unreliability on the part of the Magistrate was sound on the evidence that I have independently reviewed.
The Magistrate’s rejection of Rebecca’s evidence
83․As stated earlier, the Magistrate assessed Rebecca to have a tendency to be “somewhat uncooperative” in giving evidence. The Magistrate, and the respondent on appeal, noted significant inconsistencies which were sufficient to permit the rejection of Rebecca’s evidence in relation to the key facts in issue, including as follows:
(a)Rebecca gave evidence that, once inside the unit, Emma was “crying and waving her arms hysterically and hitting the walls and throwing her body all over the place”. All other witnesses agreed that Emma collapsed to the floor almost immediately once inside the unit. No other witness described Emma’s behaviour in this way.
(b)Rebecca gave further evidence that once Emma was up and standing, she “lunged” at the appellant. Rebecca described this occurring while Rebecca was standing between Emma and the appellant. No other witness gave evidence that Emma lunged towards the appellant, despite all being in close proximity at the time. All other witnesses gave evidence that Alec said words to the effect of, “Give us some space” which caused an argument and some form of physical altercation. The Magistrate’s reasons indicated that this evidence was sufficient to cause him to doubt and reject Rebecca’s evidence. This was not unreasonable on the part of the Magistrate, on my review of the evidence.
(c)Rebecca’s subsequent evidence, following Emma lunging towards the appellant, that Emma was running down and back up the hallway “flailing all over the place” is not corroborated by any other witness.
(d)Rebecca’s evidence that the appellant was “around the corner” when the physical altercation commenced is also contrary to all other witnesses who give varying accounts of Patrick being close to Emma, such that it was necessary for Alec to call for space.
84․Counsel for the respondent submitted that the Magistrate found Rebecca’s evidence to be contrary to other witnesses on key aspects, such that her testimony was assessed to be unreliable. Again, this was not an unreasonable conclusion on the part of the Magistrate, on my independent review of the evidence and the transcript.
Finding the common assault on Alec proved
85․The Magistrate found that Alec gave “straightforward and believable” evidence about his own behaviour, describing what he said and did. This included making contact with (“hitting”) Rebecca. The Magistrate held that it was clear from the timing of events and the triple zero phone call that his evidence was not concocted with his family members, Emma and Noel. The Magistrate considered that he made appropriate concessions about what he did not see, including not seeing Emma, his mother, being choked. Accordingly, as was submitted by counsel for the respondent, there is no basis to find the Magistrate’s assessment of credibility and reliability to be unreasonable. I agree. In particular, the concession concerning not observing the choking of his mother, Emma, was significant.
86․In relation to the elements of the offence of common assault, Alec gave evidence that the appellant “struck him on the side of the head… with an open palm” after he told the appellant to ‘give them some space’. Alec further stated that, shortly after he gave Rebecca a hug, the appellant struck him again. Noel also gave consistent evidence that when Alec went to give Rebecca a hug, the appellant lunged over, and it appeared as if the appellant hit Alec. The Magistrate found Noel’s evidence to be largely corroborative of Alec’s account of the second ‘strike’ by the appellant, without being tailored.
87․In my view, the Magistrate was not in error in accepting the evidence of Alec, as corroborated by Noel. The evidence establishes the elements of common assault. Nevertheless, I note the Magistrate in his reasons stated that the charge of common assault “was particularised as [the appellant] striking Alec in the face on a single occasion”, however Alec’s evidence (as accepted by the Magistrate) was that the appellant “struck Alec on two separate occasions”. The Magistrate, given the particularisation, found the offence proved only in relation to one strike to the head. The ground of appeal is not made out on my independent assessment of the evidence.
Finding the common assault on Noel proved
88․Similarly to Alec, the Magistrate found that Noel gave “straightforward and believable” evidence and made concessions in terms of what he did not see with respect to Emma and Alec in his evidence at the hearing at first instance:
Patrick has come over the - has lunged over the top of [Rebecca and Alec] and it looked - appeared like he - he had hit Alec. I didn't actually see if he hit him or not, but it appeared that way.
This, combined with other evidence including the triple zero call, allowed his evidence to be accepted as reliable as “he also concedes that he did not see Emma grabbed by the throat[, and t]hat concession materially undermines any suggestion of a concocted version of events to incriminate [the appellant]”: see Alvarez at [63]. As correctly submitted by counsel for the respondent, there is no basis to find the Magistrate’s assessment of credibility and reliability to be unreasonable or in error on the evidence.
89․As detailed earlier in this judgment, and as submitted by counsel for the respondent, Noel gave evidence that he exited the unit momentarily to ascertain the address of the unit. After returning, Noel went back out of the unit. As he returned again, the appellant was leaving. Noel gave evidence he asked the appellant what the address for the unit was and the appellant responded by ‘shoving’ him. As Noel continued back into the unit, Gabriella and Rebecca were coming out. Accordingly, as submitted by counsel for the respondent, the timeframe between the appellant leaving and Gabriella and Rebecca leaving was very short. However, the Magistrate found it to be of sufficient time for the push not to be observed by any other witnesses. As stated earlier, Noel’s evidence was that no one else was present when this assault occurred.
90․The Magistrate accepted Noel’s version of events (and rejected the appellants’ version). In circumstances where Noel was the only prosecution witness who gave evidence of this charge, the Magistrate properly gave himself a Murray direction. The Murray direction was subject of a somewhat misguided ground of appeal asserted by counsel for the appellant and is discussed below in this judgment at [98]-[108].
91․Counsel for the respondent correctly submitted it was not wrong for the Magistrate to accept the evidence of Noel and for the Magistrate to have relied upon it. In my view, on my independent assessment of the evidence, quite apart from the Magistrate’s findings, the elements of common assault are established.
Ground 1 - Conclusion
92․The principles concerning an assertion that a verdict was “unreasonable or not supported by the evidence” are well established. As stated in M v the Queen by the majority at 494-495:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.
(emphasis added.)
93․It is important at this juncture to refer to what was stated by McCallum J, as her Honour then was, in R v Bragias [2016] NSWCCA 219 at [5]:
In its application of the test stated in M, which has since been consistently reaffirmed, the appellate court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality". The test is not to be confused with the legal question whether a verdict of guilty was open on the evidence. But nor is it to be confused with the function of the jury at trial of determining whether the offence has been proved beyond reasonable doubt.
(emphasis added.)
(footnote omitted.)
94․I have made an independent assessment of the evidence as is required in this case. I do not have a doubt nor have I come to the conclusion that the Magistrate should have experienced a doubt. I note the importance of an independent review of the evidence by an appellate court: see Dansie at [16] and [37].
95․I acknowledge that I am not in the same position as the Magistrate at first instance. I observe the “natural limitations” that exist in the case of an appellate court proceeding on the record, including the disadvantage in evaluating the witnesses’ credibility when limited to only reading the transcript: see Fox at [23] and [25].
96․Having reviewed the evidence in detail as discussed from paragraphs [25] to [91] of this judgment, I am not left with a doubt in relation to the two convictions for common assault. I am not satisfied the verdicts are unreasonable or not supported by the evidence. I am satisfied that each element of each offence was established beyond reasonable doubt.
97․Ground 1 is not established.
Ground 2 - Should the Magistrate have refrained from giving himself a Murray direction?
98․Counsel for the appellant asserted that the Magistrate erred in giving himself a Murray direction in relation to the evidence given of the assault on Noel. The appellant further submitted that in giving himself a Murray direction, the Magistrate ignored the evidence of other witnesses, resulting in a miscarriage of justice.
99․The direction discussed in Murray at [19] is as follows:
In all cases of serious crime, it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at the at a verdict of guilty should be brought in…
100․On appeal, counsel for the appellant took issue with this direction on two grounds:
(a)Common assault is not a ‘serious crime’ per s 23WA of the Crimes Act 1914 (Cth) (Cth Crimes Act); and
(b)The appellant disputed the finding that there was only one witness to the appellant leaving the scene.
101․On the first, counsel for the appellant submitted that s 23WA of the Cth Crimes Act takes ‘serious offence’ to mean:
[A]n offence under a law of the Commonwealth, or a State offence that has a federal aspect, punishable by a maximum penalty of imprisonment for life or 5 or more years.
102․Counsel for the appellant submitted common assault is not a serious crime, as it is a summary offence carrying a maximum penalty of two years’ imprisonment. Therefore, the rather unusual submission was mounted that, a Murray direction was not warranted.
103․On the second issue of whether there were other witnesses to the assault of Noel, the appellant submitted Noel’s evidence indicated the appellant was leaving alone and via the lift when Noel was ‘shoved’ by the appellant. Counsel for the appellant submitted this is contrary to the evidence of both Gabriella and Rebecca who told the Court that the defendant had left with them, together as a group. Additionally, under cross-examination, the appellant denied pushing or assaulting Noel and told the Court he left with his mother and sister as a group. Emma’s evidence also described all three (Gabriella, Rebecca and the appellant) leaving together: “they took off running”.
104․The appellant submitted this means there were three other witnesses for the Magistrate to consider in relation to whether or not the defendant assaulted Noel, or whether, given the evidence, this occurred at all. In addition, counsel for the appellant made oral submissions regarding Emma’s evidence which described the appellant, Rebecca and Gabriella leaving together. Counsel for the appellant submitted that this evidence was not considered by the Magistrate and suggests there would have been a witness to the assault on Noel. As such, counsel for the appellant submitted it was not open for the Magistrate to give himself a Murray direction, ignoring the evidence of the other witnesses, resulting in a miscarriage of justice.
105․Counsel for the respondent submitted that the Magistrate did not ignore the evidence of the appellant, Gabriella, and Rebecca; rather, he rejected their evidence. Upon doing so, the Magistrate then reminded himself at law of the necessity to carefully scrutinise the evidence of the sole remaining witness of relevance, and having done so, found the appellant guilty.
106․Counsel for the respondent asserted that, conversely, the failure to give this direction would give rise to an appeal ground. I agree with this submission of the respondent. A Murray direction was appropriate on the evidence.
107․Further, to my mind, counsel for the appellant’s submission concerning the Murray direction is misguided. I agree with the respondent’s submissions that the giving of the direction emphasises the onus and standard of proof borne by the prosecution. The respondent correctly submitted that it is difficult to see how any complaint can be made in relation to the giving of a direction that was in fact favourable to the defendant, or how this could result in a miscarriage of justice.
108․Ground 2 is not established.
Ground 3 - Was there a miscarriage of justice in the prosecution submitting that witnesses lacked credibility, in the absence of cross-examination under s 38 of the Evidence?
Section 38 of the Evidence Act
109․Section 38 of the Evidence Act provides:
38 Unfavourable witnesses
(1)A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about--
(a)evidence given by the witness that is unfavourable to the party, or
(b)a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or
(c)whether the witness has, at any time, made a prior inconsistent statement.
(2)Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3)The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.
Note:The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.
(4)Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5)If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6)Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account-
(a)whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and
(b)the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7)A party is subject to the same liability to be cross-examined under this section as any other witness if--
(a)a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and
(b)the party is a witness in the proceeding.
(emphasis added.)
Submissions
110․The appellant’s written submissions state the following:
A substantial miscarriage of justice occurred because of the failure of the prosecutor to challenge the evidence of Rebecca, Emma and Gabriella, on the basis of bias and partiality and despite the absences of such a challenge, the advancement of an argument to [his Honour] in the prosecutor’s closing address that the evidence of those witnesses lacked credibility and were partial to the interests of the appellant.
111․I note that three people are particularised in the appellant’s submissions, that is Rebecca, Emma and Gabriella, but that the appellant’s submissions on this particular ground appropriately centred around Rebecca and Gabriella. There were submissions at [82]-[84] of the appellant’s submissions on matters that Emma was not asked about, but these submissions were, in context, directed toward Ground 1.
112․The prosecutor at first instance made an application under s 38(1)(b) of the Evidence Act concerning Rebecca’s evidence. It is convenient to set out that part of the transcript:
PROSECUTOR: I'd like to make an application under section 38(1)(b), a matter that the witness may reasonably be supposed to have knowledge about, which appears to the court that the witness is not, in examination-in-chief, making a genuine attempt to give evidence. It would be my submission that in relation to this that she has absolutely no memory of why she was yelling and what she was saying is something that you would expect that she would have some recollection of contribution.
HIS HONOUR: Well, she said initially she didn't know, but she thought it was because she was trying to understand why Emma was acting irrationally. That's the evidence that she's given... The question of how believable or otherwise it is and how rational that response is it’s a matter that can be pursued in cross-examination, is it not? And probably ought to be pursued in cross-examination before the application? And do you anticipate limiting your application to that or do you anticipate - - -
PROSECUTOR: Yes, just on this one particular [issue] .
HIS HONOUR: Well, it seems - I prefer the cross-examination, because the problem is you could tease out that response; it's not as if she said, no, no, I can't remember. My note is she's done it as to try to understand why Emma was acting irrationally. I don't think there'd be any objection to her asking her to explain what she means by that?
DEFENCE COUNSEL: No.
HIS HONOUR: And in what way did she anticipate her yelling and screaming was going to assist that process. And I think that's appropriately done … before you might look at renewing your application, if you feel you need to.
PROSECUTOR: Yes
113․This limited application was refused by the Magistrate. No further application was made. The Magistrate correctly left renewing the application open to the prosecution. The appellant asserted on appeal that the prosecutor, despite the refusal of the s 38 application, then went on to submit that the Magistrate “would not accept the evidence [of the appellant, Rebecca and Gabriella] and would reject it”.
114․First, there was the prosecution submission concerning Rebecca that her evidence was “evasive”. In relation to the evidence given by Rebecca, defence counsel at first instance submitted the following:
No s 38 application was made by the prosecution. It's unchallenged by defence. [Rebecca]’s a doctor. She said she has no criminal record. In my submission, your Honour would have no reason to reject her evidence. She's a credible witness. I said to her, “Would you lie for your brother?” and she said on her oath no.
115․Second, the prosecution submission concerning Gabriella. The prosecutor at first instance submitted that Gabriella was not a credible witness, stating “Her evidence to the Court was protective of her son”. The prosecutor submitted the Magistrate “would reject Gabriella’s evidence”. In relation to Gabriella’s evidence, defence counsel at first instance submitted:
Gabriella, again a prosecution witness, your Honour, no section 38 application. Closing submissions have been made that your Honour should accept she was protecting her son or that the triple zero call was a means to protect [him]. They weren’t put to that witness, so I would ask your Honour to place no weight on that.
116․In oral submissions before me, counsel for the appellant submitted that there was no questioning by the prosecutor as to whether Gabriella was “protecting her son” and, in spite of not having that evidence before the Court, the Magistrate asserted that she was a witness protecting her son. Counsel for the appellant submitted that this finding “was not available to the Court”.
117․Counsel for the appellant referred to Saddik v The Queen [2018] VSCA 249 (Saddik) concerning the conduct of the prosecutor impacting the ‘fairness’ of the trial, at [70]:
[T]he “critical issue….is whether the prosecutor, by making those submissions, without first seeking to cross-examine, undermined the fairness of the trial such as to give rise to a substantial miscarriage of justice in the case.
118․Counsel for the appellant submitted that the prosecution’s failure to cross-examine Rebecca and Gabriella, and then subsequently submitting to the Court that Rebecca and Gabriella were unreliable witnesses and lacked credibility, resulted in the following:
(a)Submissions based on material that was not in evidence,
(b)Intemperate or inflammatory comments that tended to arouse prejudice or emotion;
(c)Belittling or ridicule of part of the appellant’s case; and
(d)Conveyance of the prosecutor’s personal opinions.
119․Counsel for the appellant further submitted that the prosecution’s failure to cross-examine Emma on her statement: “they took off running”, has resulted in a complete failure to ascertain the facts of the case and to give the witness an opportunity to address the substance of the critical submissions made by the prosecutor in closing. Taken together, counsel for the appellant submitted this has resulted in a miscarriage of justice for the appellant.
120․In written submissions in response, the respondent made a number of submissions including that the Magistrate’s reasoning for his conclusions for rejecting the witnesses’ evidence is exposed and it is apparent the Magistrate did not rely upon an improper submission, such that there is no miscarriage of justice.
121․Counsel for the respondent distinguished the current matter from Saddik, suggesting “a proper reading of Saddik demonstrated that the attack on the prosecutor’s address concerned the volume of assertions, nature of those assertions, and that the attack on credit was based on propositions not supported by evidence”. Counsel for the respondent submitted that this far exceeds and significantly differs from the submissions made by the prosecutor in this case at first instance. Counsel for the respondent submitted that the prosecutor made submissions based directly on the evidence.
Consideration
Relevant legal principles
122․In determining where there has been an error at first instance concerning s 38 of the Evidence Act, it is important for this Court to examine the relevant law to determine whether or not a miscarriage of justice has resulted on the particular facts of this case.
123․It is important to examine the development of the law in this area as discussed below.
124․It is convenient to begin with the NSW Court of Criminal Appeal decision of R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34 (Kennedy). This was an appeal against conviction for 2 counts concerning sexual offences on multiple grounds. Relevantly, one ground required the NSW Court of Appeal to consider the question of whether the trial miscarried by reason of the conduct of the presentation of the case by the prosecutor, who made closing submissions about the reliability of a prosecution witness’ evidence, in circumstances where that witness was not cross-examined or otherwise presented with an opportunity to respond to the complaint about the reliability of their evidence.
125․One of the witnesses called in the prosecution’s case was both the appellant’s partner and the complainant’s mother. The evidence of this witness contradicted the complainant’s evidence, and in the prosecution’s closing submissions the prosecutor asserted that the witness gave evidence to protect the appellant and was looking after his interests. The prosecutor did not put this suggestion to the witness nor did the prosecutor make any application to cross-examine this witness under s 38.
126․When considering whether the trial miscarried by way of the conduct of the presentation of the case against the appellant by the prosecution, Studdert J held (with Heydon J and Greg James J agreeing) at [37]-[39]:
There can be no question but that the Crown Prosecutor had a responsibility to present the Crown case properly and fairly. Unfortunately what the Crown Prosecutor did in relation to this witness departed from proper and fair presentation. Fairness not only to the witness but to the appellant required that the witness should have been afforded the opportunity to address the substance of the critical submissions later made to the jury. Since the Crown Prosecutor did not afford the witness the opportunity to meet these assertions later put to the jury, there was no justification for their being made.
The responsibilities of a Crown Prosecutor were considered by the Court of Criminal Appeal in two recent decisions in cases, unhappily involving this same Crown Prosecutor: see R v Kneebone 47 NSWLR 450 and R v Walton [1999] NSWCCA 452. In Kneebone the court had occasion to consider the duty of the Crown Prosecutor in determining what witnesses should be called. In that case the principle that the Crown Prosecutor is responsible for ensuring that the case is presented with fairness to the accused and to the court was emphasised. In the later case of Walton that principle was given added emphasis in a judgment of Greg James J with which the other members of the court agreed. In Walton a witness was called in the case for the Crown and the Crown Prosecutor asked her nothing more than her name, address and occupation but in the subsequent address to the jury the Crown Prosecutor impugned the credit of the witness in circumstances in which, as the Crown conceded on appeal, the prosecutor had not put the matter about which criticism was to be made to the witness. This conduct on the part of the Crown Prosecutor resulted in stern criticism in the Court of Criminal Appeal: see in particular the judgment of Greg James J at paras 38-49.
It may be that the Crown Prosecutor was not aware of what had been said in Kneebone and Walton when the present trial was being conducted but whether he was or not, it seems to me that the conclusion is inescapable that the conduct under consideration on this ground led to a miscarriage of justice. I reach that conclusion notwithstanding the Crown’s submissions to the contrary. The Crown has today submitted that what was put to the jury by the Crown Prosecutor did not invite the jury to do something that they may not have been going to do or may not have done anyway. It cannot be assumed that the jury would have done what the Crown invited them to do about this witness. The jury may well have been influenced by the submissions complained of to reject evidence that the witness gave which was favourable to the appellant’s case and which impacted on the credibility of the complainant.
(emphasis added.)
127․What emerges from the application of the principles derived from Kennedy to the case before me, is that the prosecutor in this case had a responsibility to present the prosecution case properly and fairly. In this hearing, in carrying out that responsibility fairness to both, the witnesses and to the accused, required that the witnesses should have been provided with the opportunity to address “the substance of the critical submissions” later made to the fact-finder.
128․I note that in the case before me, the witnesses Gabriella and Rebecca were not afforded that opportunity as discussed in Kennedy.
129․In the later case of Kanaan v R [2006] NSWCCA 109 (Kanaan), the court considered the question of whether the failure of the prosecution to cross-examine a prosecution witness resulted in unfair prejudice to the accused, where no application under s38 was made at trial and the prosecutor invited the jury to disbelieve the witness’ evidence.
130․The Court considered the prosecution’s obligation to cross-examine its own witnesses at [84]-[85]:
The greater availability of cross-examination of a Crown witness by the Crown prosecutor pursuant to s 38 has obviously placed more emphasis on the Crown’s obligation to call witnesses whose main relevance is the availability of their evidence unfavourable to the Crown case. Section 38 is living up to its potential for transforming the traditional procedure in criminal trials: Regina v Parkes (2003) 147 A Crim R 450 at [81], [141]. In Regina v Ronen [2004] NSWSC 1298 at [32], Whealy J observed that the increasingly common use of s 38 has often demonstrated its value in getting to the truth of the matter, although great care must be taken to ensure that the trial does not become side-tracked by a collateral issue carrying with it the real possibility of prejudice to the accused. That observation was correct, but attention is drawn to the accepted interpretation of “unfairly prejudicial” in ss 135-136 and of “unfair prejudice” in s 137, that prejudice to the accused is not unfair merely because the evidence tends to establish the Crown case: Regina v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen (1999) 196 CLR 297 at [29], [91], [98].
Where the Crown prosecutor fulfils such an obligation, it would be unjust to the Crown (which prosecutes on behalf of the community) to refuse leave to cross-examine in relation to the unfavourable evidence given, subject of course to the usual discretions such as provided by s 137 of the Evidence Act: Regina v Milat (BC9607720), Hunt CJ at CL, 23 April 1996, at 5-6. (See Evidence Act, s 192(2).) Leave must also be sought to cross-examine the witness about matters "relevant only" to the witness's credibility: s 38(3); and it should be noted that the credibility of a witness includes the witness's ability to observe or remember facts about which the witness has given evidence (that is, the reliability of his evidence): Evidence Act, s 3 Dictionary.
(emphasis added.)
131․What emerged from Kanaan was a similar approach to Kennedy. This again underlines the importance of a proper adherence to s 38 of the Evidence Act by prosecutors in circumstances where a prosecutor wishes later to invite a jury, or a judicial fact-finder, to disbelieve a witness’ evidence.
132․Some six years after Kanaan, the NSW Court of Criminal Appeal had occasion to revisit this area of the law in Soames v R [2012] NSWCCA 188 (Soames). There the Court considered whether the trial miscarried as a result of a submission by the prosecution to the jury that the evidence of two Crown witnesses (who were friends of the appellant) was calculated to assist the appellant when that proposition was not put to the witnesses.
133․Latham J (Allsop P and Davies J agreeing) [said] at [109]:
…The basis of that unreliability was said to be his friendship with the appellant. [Friend 2] acknowledged in his evidence that the appellant was "a really close friend". That was a factor which the jury were entitled to take into account in their assessment of [Friend 2] as a reliable witness, that is, whether he was a witness who was uninfluenced by feelings of personal loyalty to the appellant. It has never been the law that a Crown prosecutor is prohibited from suggesting to a jury that there may be reasons why a witness in the Crown case is unreliable, where there is a basis in the evidence for such a submission.
(emphasis added.)
134․The decision of Soames does appear somewhat out of kilter with the development of the law in the NSW Court of Criminal Appeal decisions of Kennedy, Kanaan and the next case to be discussed of the Victorian Court of Appeal in Saddik. Soames may therefore turn on its own facts.
135․In Saddik the Victorian Court of Appeal had cause to examine this issue and discussed this area of the law with reference to NSW cases. Saddik concerned an appeal against conviction. The relevant appeal ground particularised that there was a substantial miscarriage of justice because of the failure of the prosecution to challenge the evidence of a particular witness on the basis of bias and partiality and despite the absence of such a challenge, the advancement of a submission to the jury in the prosecutor’s closing address that the testimony of that witness was biased and partial to the interests of the appellant.
136․The Victorian Court summarised various NSW authorities that considered similar prosecution conduct. Such conduct had been held to amount to a miscarriage of justice by reason of which the trial miscarried. It is convenient to set out the discussion of the law from at [95]-[98].
137․The first case discussed was R v Teasdale [2004] NSWCCA 91; 145 A Crim R 345 (Teasdale):
In Teasdale, the appellant, who was an off-duty policeman, was alleged to have thrown a glass at one Eggins at a hotel in Hamilton. The prosecution called a number of witnesses, including nine off-duty police members. The non-police witnesses all saw the glass being thrown, but only one of them was able to identify the appellant as the miscreant. None of the off-duty police saw who threw the glass at Eggins. The prosecutor did not make an application to cross-examine any of those witnesses, pursuant to s 38 of the Evidence Act. In his final address, he alleged that there was a conspiracy of silence between the off-duty police witnesses to protect the appellant because he was guilty of the offence charged. He noted that all the other civilians, who had seen the glass being thrown, had the ‘benefit’ of never having been ‘to the Goulburn Academy for 12 months’. He observed that the off-duty police seemed to have a ‘unique ability to witness assaults on fellow police but don’t seem to be able to witness assaults on anybody else’. Defence counsel did not raise any objection to that aspect of the prosecutor’s address.
On appeal, the New South Wales Court of Criminal Appeal expressed the view that the prosecutor’s conduct, in making that address, was such as to ‘require this Court’s most severe disapproval’. The Court considered that the trial judge ought to have given a direction to the jury to have disregarded that aspect of the prosecutor’s address. Notwithstanding the failure of the appellant’s counsel at trial to object to the prosecutor’s address, the Court nevertheless concluded that the conduct of the prosecutor was such that leave to appeal should be granted and the ground of appeal upheld.
138․The second case discussed was Kennedy, to which I have referred to earlier at [124]-[127]:
In Kennedy, the appellant was convicted of two sexual offences, in which it was alleged that he had had sexual intercourse with the complainant without her consent on two occasions. In his final address, the Crown prosecutor asserted that the complainant’s mother, in her evidence, had endeavoured to protect the appellant, and was doing her best to look after his interests. The prosecutor had not put any questions to that witness to give her the opportunity to answer that suggestion, nor did he seek to cross-examine her under s 38 of the Evidence Act. Studdert J (with whom Heydon JA and Greg James J agreed) held that the address by the prosecutor had departed from the fair and proper presentation of the prosecution case. In particular, the jury may well have been influenced by the prosecution’s submissions to reject evidence given by the complainant’s mother that was favourable to the appellant’s case in a number of aspects. Although counsel for the appellant had not sought a direction from the trial judge, nevertheless, the Court held that what had occurred amounted to a serious irregularity, so that the ground of appeal was established.
139․The third case discussed was R v MRW [1999] NSWCA 452; 113 A Crim R 308:
In MRW, the appellant was convicted of one count of indecent assault of a girl under the age of 16 years. On the complainant’s account, the incidents, which gave rise to the charge, occurred in the presence of the appellant’s daughter. The prosecution called the appellant’s daughter as a witness, but, after asking her name, address and occupation, did not adduce any evidence from her. In cross-examination, she gave evidence that was materially inconsistent with the account given by the complainant in a number of important respects. In his final address, the prosecutor, forcefully, sought to nullify the daughter’s account. He told the jury that he had not questioned the daughter ‘because he knew that she wasn’t telling the truth’. The prosecutor alleged that the appellant and his daughter had agreed to present joint lies in evidence, notwithstanding that the appellant himself had denied discussing the events with his daughter. James J (with whom Beasley JA and Newman J agreed) held that, notwithstanding that defence counsel at trial did not seek a direction from the judge, the contents of the prosecutor’s address resulted in a miscarriage of justice, so that the appeal should be allowed. …
140․The decision of Saddick went on to discuss the NSW Court of Criminal Appeal decision of R v Livermore [2006] NSWCCA 334; 67 NSWLR 450. When considering these authorities, the Court in Saddick then went on to note at [102]-[103]:
… it illustrates the approach taken by appellate courts to cases such as the present, in which the prosecution has undertaken a substantial attack on the credibility of a witness or witnesses in final address, in circumstances in which the prosecutor should have, but did not, seek leave to cross-examine that witness or those witnesses, in the course of their evidence. In each case, the aspect of the prosecutor’s address, that was impugned on appeal, had the effect of unfairly damaging the case on behalf of the accused person at trial, by undermining a material part of it. As such, in each case, the New South Wales Court of Criminal Appeal was persuaded that the irregularity, thus occasioned by the conduct of the prosecutor, was of sufficient importance to constitute a miscarriage of justice.
Each case, of course, depends on its own particular facts...
(emphasis added.)
141․The Victorian Court of Appeal concluded that there was a substantial miscarriage of justice. The Court then stated at [117]-[118] the basis on which this conclusion was reached in that case:
However, and in any event, three propositions are clear from the foregoing discussion in respect of this issue. First, the offending aspects of the prosecutor’s address constituted a substantial irregularity in the proper processes of the trial. Secondly, on a careful analysis of the issues in the trial, it cannot be perceived that there could have been any potential forensic advantage to the appellant at the trial by counsel for the appellant not to object to the final address, and not to seek a judicial direction to the jury to cure the offending aspects of the prosecutor’s address. Thirdly, the offending aspects of the prosecutor’s address were capable of substantially undermining the right of the appellant to a fair trial of the charges against him.
For those reasons, we could not be satisfied that the irregularity did not make a difference to the outcome of the trial. The prosecution case, presented against the appellant, was not such that, if the impugned aspects of the prosecutor’s address were to be disregarded, it could be maintained that it was inevitable the appellant be convicted of the charges against him. On its face, the prosecution case against the appellant was strong, being supported by the text sent by the complainant to the appellant shortly after her consultation with the appellant, the admission made by the appellant to Mr Fahmy, and the post-offence incriminating conduct comprising the addition to his clinical notes. However, each of those matters, taken in combination, did not have the effect that it was inevitable that the jury must accept the complainant’s evidence as to the indecent assaults by the appellant on her.
(emphasis added.)
142․What can be concluded from a discussion of the foregoing authorities is the following. Where the prosecution has undertaken a significant attack on the credibility of a witness in final address in circumstances where the prosecutor should have but did not seek leave to cross-examine that witness, that failure had the effect of unfairly damaging the case on behalf of the accused. Such conduct may amount to a miscarriage of justice.
The facts in this case
143․The prosecution stated the following in their closing submissions in relation to Gabriella and Rebecca. It is best to set out the relevant submissions in context. That is the submission that “Rebecca was an evasive witness” and in respect of Gabriella the submission that “her evidence to the Court was protective of her son”:
I'll now deal with the evidence of Patrick, Rebecca and Gabriella. Their version of events is that the choke of Emma did not happen, the assault upon Alec did not happen and the assault upon Noel did not happen.
Rebecca gave sworn evidence that she had eyes on Emma the entire time that she was in the unit. Rebecca said there was never a time when she was not watching Emma and that Patrick did not approach and make contact with Emma. Obviously if your Honour accepts that evidence as true or a possibility that it's true, then your Honour would find the defendant not guilty.
However, it's the prosecution case that your Honour would not accept the evidence and your Honour would reject it for the following reasons. Rebecca was an evasive witness. Your Honour may take account of that in assessing her credibility and reliability. Your Honour heard evidence from Rebecca that the defendant drove off in his own car. Your Honour can comfortably reject that evidence, noting uncontested police statements that show a short time later, police located the defendant in the front passenger of the car with Rebecca and Gabriella further demonstrating the unreliability of her evidence.
Rebecca's evidence was that Gabriella and Noel were located further around the corner in the unit. This evidence is at odds with all the other evidence. Rebecca's evidence was that Emma was running up and down the hallway. This evidence is obviously fanciful and is not supported by Alec, Emma, Noel, Gabriella or Patrick's accounts.
…
Gabriella gave sworn evidence that after Emma collapsed on the ground in front of bedroom one, she got down on the ground with her and hugged her mum. This evidence is not supported by Alec, Emma, Noel, Rebecca or Patrick.
Gabriella drew an image locating where people were standing, Exhibit P15. When asked to re-draw the image, she did so but the location of Alec, Emma, Noel and Patrick had changed. Her evidence that Emma entered the apartment first is also inconsistent with Patrick. For these reasons, the prosecution's submission is that Gabriella is not a credible witness. It is the prosecution's submission that Gabriella left the apartment to avoid police. The call by Gabriella to police was an attempt to prevent police from arresting her son.
Her evidence to the court was protective of her son. She described his demeanour in the apartment as sombre, as quiet, as reserved and just watching. This is inconsistent with the other evidence before the court and is even inconsistent with Patrick's account when he gave evidence that he said to Alec, 'Don't fucking talk to my sister or family like that'. It is the prosecution case that your Honour would reject Gabriella's evidence.
It is the prosecution's submission that your Honour should reject Patrick's evidence that he did not choke Emma, that he did not assault Alec and that he did not assault Noel. Patrick also gave evidence that Emma left the apartment to call police. This is not consistent with any other versions of events.
(emphasis added.)
144․Relevantly the Magistrate stated the following in his consideration of the reliability of Alec, Noel, Rebecca, Gabriella and the appellant in Alvarez at [63]-[66]:
Alec gave his evidence in a straightforward and believable manner. Alec concedes that he did not see his mother grabbed by the throat. The making of that concession materially undermines any suggestion that Emma, Alec and Noel have concocted a version of events to incriminate Patrick. Alec’s testimony leaves open the possibility that it may have taken place while he was hugging Rebecca and had his back to Emma. His testimony that he hugged Rebecca is not supported by her but I have more to say about Rebecca’s testimony later.
Noel also gave his evidence in a straightforward and believable manner. He also concedes that he did not see Emma grabbed by the throat. Again, that concession materially undermines any suggestion of a concocted version of events to incriminate Patrick.
Rebecca had a tendency to be somewhat uncooperative in her testimony. Her version of events – that it was Emma who lunged at Patrick trying to grab him – is not supported by the testimony of any other witness including Gabriella and Patrick. In addition, she places Patrick at this point in time as being around the corner of the hallway – again something not supported by the testimony of any other witness. In the context of what is in issue in this case, these are not maters of mere peripheral detail. I conclude that Rebecca was not telling the truth when she says that Emma lunged at Patrick. That causes me to doubt her other testimony. I conclude that she has tailored her evidence in a way which she feels will assist Patrick’s case.
Gabriella also was not a satisfactory witness. Her testimony that when Emma fell to the ground she crouched on the floor hugging her is not supported by the testimony of any other witness – including Rebecca and Patrick. The exchanges which took place with her about what she meant when she said that Patrick and Alec – had a verbal – indicate a reluctance on her part to say anything indicating any aggression on the part of Patrick. Her testimony that Patrick’s demeanour was – quiet and reserved – and that he was a [“]peacekeeper[“] is simply unbelievable in the context of the whole of the other evidence. I conclude that Gabriella also was not telling the truth and has also tailored her evidence in a way which she felt would assist Patrick’s case.
(emphasis added.)
Ground 3 – Conclusion – the application of the law to the facts in this case
145․It is a fundamental aspect of our criminal justice system that a prosecutor as ‘minister for justice’ has an obligation of fairness (Saddik at [91]). A prosecutor has a responsibility to present the prosecution case properly and fairly (Kennedy at [37]). In my view, fairness required, in this case, that the witnesses Gabriella and Rebecca should have been afforded the opportunity to address the “substance of critical submissions” later made to the Magistrate by the prosecutor (Kennedy at [37]). This did not occur on the facts of this case.
146․Submissions were made by the prosecutor in this case that were critical of the prosecution witnesses Gabriella and Rebecca. This occurred in circumstances where, in respect of the prosecution witness Rebecca, an application had been made by the prosecutor to cross-examine under s 38 of the Evidence Act in relation to a specific matter that was rejected by the Magistrate. Subsequently no further application was made by the prosecutor. It should have been. That is a matter of fairness when critical submissions concerning a witness are to be made by a prosecutor.
147․Further, this was in circumstances, in the case of the prosecution witness Gabriella, where no application whatsoever under s 38 of the Evidence Act was made by the prosecutor and the witness was later submitted to be “protective of her son”. This proposition was not put to Gabriella by the prosecutor. Again, it should have been put as a matter of fairness.
148․Should the prosecutor have made critical submissions concerning prosecution witnesses without an application under s 38 of the Evidence Act? The answer, in my view, is clearly no, for the reasons set out above.
149․As a matter of fairness, having regard to the authorities, the prosecutor should have made a s 38 application and cross-examined the relevant witnesses prior to making submissions of that nature. In my view it is not appropriate because of the importance of the dictates of fairness, for a prosecutor to make submissions critical of a prosecution witness without first seeking to cross-examine under s 38 of the Evidence Act.
150․Nevertheless, the critical question remains has there been a miscarriage of justice on the facts of this case?
151․Section 218 of the Magistrates Court provides for the possible orders that this Court can make in an appeal such as this one. This section provides that this Court may “make [an] order, that, in all the circumstances, it considers appropriate, or refuse to make an order.” It is therefore not required that, upon my finding of an error, that I must acquit the appellant. I note in this regard Laipato v Truman [2017] ACTSC 351 where Mossop J held at [72]:
Counsel for the appellant accepted that the terms of s 218 of the Magistrates Court Act 1930 (ACT) incorporated or accommodated the proviso that an appeal would not be allowed in a criminal matter where it was shown that no miscarriage of justice occurred. Counsel for the respondent agreed. In the light of the approach taken by the parties it is sufficient to say that this agreed approach is consistent with the reasoning of the High Court in Stokes v The Queen (1960) 105 CLR 279 at 284-285 and Conway v The Queen (2002) 209 CLR 203 at [4]–[39]. In the present case notwithstanding that her Honour may have wrongly ruled or provided incorrect guidance to the unrepresented accused, by reason of the evidence that was given and the absence of any evidence or other explanation as to the subject matter or content of any possible additional cross-examination by the appellant, there was no miscarriage of justice and hence the appeal should be dismissed.
(emphasis added.)
152․At this juncture it is appropriate to refer to the to the specific findings made by the Magistrate in his decision. The Magistrate stated the following in relation to Rebecca:
Rebecca had a tendency to be somewhat uncooperative in her testimony. Her version of events – that it was Emma who lunged at Patrick trying to grab him – is not supported by the testimony of any other witness including Gabriella and Patrick. In addition, she places Patrick at this point in time as being around the corner of the hallway – again something not supported by the testimony of any other witness. In the context of what is in issue in this case, these are not maters of mere peripheral detail. I conclude that Rebecca was not telling the truth when she says that Emma lunged at Patrick. That causes me to doubt her other testimony. I conclude that she has tailored her evidence in a way which she feels will assist Patrick’s case.
(emphasis added.)
And the following in relation to Gabriella:
Gabriella also was not a satisfactory witness. Her testimony that when Emma fell to the ground she crouched on the floor hugging her is not supported by the testimony of any other witness – including Rebecca and Patrick. The exchanges which took place with her about what she meant when she said that Patrick and Alec – had a verbal – indicate a reluctance on her part to say anything indicating any aggression on the part of Patrick. Her testimony that Patrick’s demeanour was – quiet and reserved – and that he was a [“]peacekeeper[“] is simply unbelievable in the context of the whole of the other evidence. I conclude that Gabriella also was not telling the truth and has also tailored her evidence in a way which she felt would assist Patrick’s case.
(emphasis added.)
153․What emerges from a review of the Magistrate’s reasons is that the Magistrate, who saw all the witnesses give evidence, based his decision in relation to both witnesses on significant inconsistencies in the evidence and not bias or partiality as such.
154․In contradistinction to a jury trial, in a hearing before a Magistrate, reasons are available from the Magistrate. Obviously, juries do not provide reasons. An appeal from a jury verdict cannot examine reasons to confirm whether or not there has, in fact, been a miscarriage of justice. A miscarriage of justice must be assumed by a Court of Appeal in the absence of reasons from a jury. Had this been a jury trial, an order for a new trial would have been appropriate. Here however the Magistrate’s reasoning is clear and exposed, and available for analysis. The Magistrate, in his reasons in respect of both Rebecca and Gabriella, relied on significant and important inconsistencies in the evidence and not on some form of presumed bias or partiality in his assessment of the witnesses.
155․Thus, in conclusion, an error on the part of the prosecution is established. Nevertheless a miscarriage of justice is not established.
156․Ground 3 is therefore not established as a miscarriage of justice is not established. This ground should be dismissed.
Conclusion
157․The grounds of appeal have not been made out. Therefore, the appeal will be dismissed.
Orders
158․I make the following order:
(1)The appeal is dismissed and the convictions are confirmed.
| I certify that the preceding one hundred and fifty-eight [158] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 29 February 2024 |
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