Aswad v Walker

[2018] ACTSC 303

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Aswad v Walker

Citation:

[2018] ACTSC 303

Hearing Date:

29 October 2018

DecisionDate:

1 November 2018

Before:

Elkaim J

Decision:

The appeal is dismissed

Catchwords:

APPEAL – GENERAL PRINCIPLES – Appeal against sentence – appeal against conviction

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991 (Cth) s 79

Magistrates Court Act 1930 (ACT) Pt 3.10.2

Cases Cited:

Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201

R v Brodgen [2017] ACTSC 276

Parties:

Wisam Hadi Aswad (Appellant)

Craig Andrew James Walker (Respondent)

Representation:

Counsel

Mr R Davies (Appellant)

Mr J Walker (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Numbers:

SCA 32 of 2018

Decision under appeal: 

Court:  ACT Magistrates Court

Before:  Magistrate Theakston

Date of Decision:         6 June 2018

Case Title:  Walker v Aswad

Court File Numbers:      CC 4143 of 2017; CC 4144 of 2017

ELKAIM J:

1. On 6 June 2018, Magistrate Theakston convicted the appellant of two offences: assault occasioning actual bodily harm and intentionally choke a person.

1. The appellant says he should not have been convicted for either offence, for two reasons.

1. Firstly, he says that the Magistrate should not have preferred the complainant’s evidence in an evidence-in-chief interview over her later, and markedly different, evidence in Court. Most importantly the appellant points out that the complainant did not have an interpreter for the interview but she did have an interpreter in Court.

1. Secondly, the appellant says that the Magistrate’s findings were against the weight of the evidence and there should have been a finding of not guilty.

1. The Court’s jurisdiction to hear a matter of this type is derived from Part 3.10.2 of the Magistrates Court Act 1930 (ACT). The principles to be applied are those which were set out by Refshauge J in Peverill v Crampton [2010] ACTSC 79 (‘Peverill’). His Honour said at [24]:

Such an appeal is by way of rehearing.  On the authorities, the principles under which such appeals are heard seem to be as follows:

-The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.

-The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.

-The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.

-The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.

-The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.

-In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.

-The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.

1. My initial impression about the first ground was that it had some weight. Reading the transcript of the pre-recorded interview revealed a number of occasions in which the complainant clearly struggled to understand the police officers.

1. It would also have been obvious to the police officers that English was not the complainant’s first language. I appreciate that they would have been concerned to conduct the interview while matters were still fresh in the complainant’s mind and that they had an obligation under s 79 of the Evidence (Miscellaneous Provisions) Act 1991 (Cth) to conduct the interview “as soon as practicable”. This phrase was examined by Burns J in R v Brodgen [2017] ACTSC 276. He emphasised the flexible nature of the requirement and the need to adapt its width to the particular circumstances before the court.

1. The alleged offence occurred on 9 April 2017. The 000 call after the alleged offence was made at 1:00 pm. The police arrived at about 1:15 pm and the recording began at 1:35 pm. The need to conduct the interview “as soon as practicable” certainly did not require this amount of haste. In addition, if the police had decided that an interpreter was necessary then whatever reasonable amount of time was required to obtain the interpreter would still have placed the interview within the wording of the section.

1. In hindsight I am of the view that the police should have obtained an interpreter even if it required waiting for a day or more to do so. This view does not, however, necessarily make the Magistrate’s finding incorrect.

1. Suffice to say that when the complainant gave evidence in Court, on 29 May 2018, with an interpreter, her evidence was significantly different to that which is contained in the record of interview. Not only did she give a version which exonerated the appellant from involvement in any crime against her but she said that she had been misinterpreted.

1. I think the result of this appeal is dictated by looking at the actual evidence, namely the footage (rather than the transcript) of the recorded interview. I have viewed it, as did the Magistrate, and it is very telling. In my view, the combination of words spoken and gestures provide conclusive evidence of the alleged criminal activity on the part of the appellant.

1. It is important to treat any recorded footage with caution in case it is misleading. That is not the case here. An example of a court preferring the evidence contained on film to the oral evidence of a person about the same events can be found in Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201. In addition, listening to and watching the complainant, provides a straightforward and illustrative history and demonstration of her complaints.

1. As suggested by the Crown at the hearing, the change in the appellant’s evidence raises an inference of the complainant having decided to effectively withdraw her allegations, perhaps because of a reconciliation or perhaps because of other matters concerning the appellant.

1. I emphasise that having watched the recording I am of the view that there was an overwhelming, and obviously understandable, version given by the complainant about what happened to her on 9 April 2017. I entirely agree with what the Magistrate said about the footage:

She clearly misunderstood some questions and her answers are patently clear about that, but at other times she gives very clear and consistent evidence as to what occurred, and I accept her version of events that occurred she described during the family violence evidence-in-Chief interview and I reject her evidence today that is inconsistent with that (Transcript 58.12).

1. Once this has been accepted then there is more than sufficient evidence upon which the Magistrate could have found that the offences had been committed. Accordingly, both grounds of appeal must fail.

1. In relation to the submissions about the 000 call I agree with the Magistrate’s observation, at transcript 55.16 that the words “Help, Help” are more consistent with a concern for her safety than a need for an ambulance. Firstly, her words are important. She was asked how she felt when the appellant “crushed” her. She responded:

I feel scared and I think about future and my kids and what’s happening. I just remember 000, go quickly upstairs, I don’t want to see my kids, go quickly upstairs, close the door of the room - this room- behind my son when you see my son, this is the room my son you talk to him. Close the door and then call 000, what’s happened Wisam come for me, I just say help and take the phone that was it, that’s what happened (indistinct) 

1. Secondly, her husband is a qualified doctor. If she needed medical assistance, and the events had all been an unhappy accident, one might have expected that she would have allowed the appellant to minister to her wounds.

1. I note that I was concerned about some of the Magistrate’s observations concerning bloodstains. I think he may have strayed into an area which should have been the subject of expert evidence. I do not, however, think that if there was any error on the Magistrate’s part that it was sufficient to support success in the appeal.

1. Accordingly, the appeal is dismissed.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Elkaim.

Associate:

Date: