Aynsley v Fitzgerald
[2014] ACTSC 357
•4 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Aynsley v Fitzgerald |
Citation: | [2014] ACTSC 357 |
Hearing Date: | 30 October 2014 |
DecisionDate: | 4 December 2014 |
Before: | Penfold J |
Decision: | 1. The appeal is upheld. 2. The verdict is set aside and a verdict of not guilty is entered. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Findings of Fact – appellant found guilty of menacing driving – complainant was a former friend of appellant – finding of guilt depended on Magistrate accepting complainant’s identification evidence – Magistrate assessed complainant as truthful witness – Magistrate accepted complainant’s identification evidence as reliable despite discrepancies between her evidence and that of independent witnesses – reliability of identification evidence not solely dependent on truthfulness of witness – doubts about the reliability of identification evidence were doubts that the Magistrate should also have experienced – verdict set aside and not guilty verdict entered. |
Legislation Cited: | Evidence Act 2011 (ACT), s 165 Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 8(2) |
Cases Cited: | M v The Queen (1994) 181 CLR 487 |
Parties: | Lauren Suzanne Aynsley (Appellant) Adam Fitzgerald (Respondent) |
Representation: | Counsel Mr M Toole (Appellant) Ms A Clarke (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 16 of 2014 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 7 February 2014 Case Title: Adam Fitzgerald v Lauren Aynsley Court File Number: MC159 669 |
Introduction
On 7 February 2014 Lauren Aynsley was found guilty in the Magistrates Court of menacing driving contrary to s 8(2) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). She was convicted and ordered to sign a good behaviour undertaking for 18 months and to perform 160 hours of community service.
Background
Police statement of facts
The police statement of fact was of course not evidence before the Magistrate, but it provides a convenient summary of the case as follows:
About 3:30am on Monday 10th September 2012, Jennifer Lesley WEBSTER, herein referred to as the Victim, finished work at the Canberra Southern Cross Club, Pitman Street Greenway in the Australian Capital Territory (ACT).
About 4:29am this date, the Victim received a lift from work colleagues to the Canberra Southern Cross Club, Corinna Street Phillip ACT.
A short time later, the Victim ordered a taxi via her mobile phone to collect her and take her home. As she was waiting at the front of the club, the Victim saw a white coloured Hyundai Excel. The Hyundai had blue and white coloured ACT Registration plates. As the Hyundai drove past, the Victim saw pink coloured frangipani flower stickers on the right side of the rear window. The Victim recognised the Hyundai as belonging to Lauren AYNSLEY.
The Hyundai continued along Corinna Street until it got to the road near the Big W Loading dock, where it turned around and drove back down Corinna Street. As it drove past the Victim, it did so very slowly.
The Hyundai turned into the driveway of the Southern Cross Club and travelled down it slowly. At this time, the Victim saw the taxi she had ordered so she started walking towards it, crossing the driveway. As the Victim crossed the driveway, the Hyundai quickly drove out of the driveway, turned around and drove back into the driveway’s entrance. The Hyundai drove directly at the Victim at speed.
The Victim jumped backwards behind the steel barriers to avoid being struck by the Hyundai. The car stopped about 15 centimetres away from the barriers.
The Victim looked directly at the driver of the Hyundai and recognised her to be Lauren Suzanne AYNSLEY, ... herein referred to as the Defendant now before the Court. (The Victim and the Defendant used to reside together for a period of about twelve months.)
The Victim tried to get to the taxi by running onto Corinna Street. As she did this, the Hyundai lurched forwards towards the Victim. The Victim tried to take cover behind the barriers but the front left corner of the Hyundai hit her thigh, causing her to lose balance and steady herself by placing her right hand on the bonnet. The Victim started to panic and was in genuine fear of her life.
The Victim tried to run around the rear of the Hyundai via the passenger side but the Hyundai reversed backwards, preventing the Victim from getting past.
The Defendant yelled: "I'm gonna fucking kill you cunt!"
The Victim tried to run in front of the Hyundai but it lurched forward, blocking the Victim's path to the taxi.
The Victim tried to again run behind the Hyundai but it reversed back and blocked her path. As the Victim tried to run back in front of it, the gears crunched and the car slowed sufficiently enough for the Victim to get in front, just as it lurched forward again. The front right comer of the Hyundai struck the victim's thigh for a second time.
The Victim ran towards the taxi and the driver was waving at her to get into it.
The Defendant looked towards the taxi before driving off at speed.
The evidence
Police could not initially locate Ms Aynsley, the appellant, but she was eventually charged in December 2012 after being arrested on a warrant. On 1 May 2013, she attended a police station voluntarily to take part in a taped interview about the incident.
The hearing took place on 7 February 2014. The complainant, Ms Webster, and the defendant, now the appellant, gave evidence. Evidence was also given in the prosecution case by Nishad Thekkadavan (this is the spelling of the witness’s name given in the police documents), the taxi-driver who had witnessed the incident, and by the informant, Senior Constable Adam Fitzgerald. In the defence case, evidence was also given by Jarrod Turner, who had shared a house with Ms Aynsley for some months before and after the incident.
In evidence before the Magistrate were, among other things, the recording and transcript of the phone call made by the complainant to police shortly after the incident in September 2012, and the recording and transcript of the police interview with Ms Aynsley that took place in May 2013.
In the Magistrates Court, the defence did not challenge the evidence of the event given by the complainant and the taxi-driver who had witnessed it. Nor was there any challenge to the identification of the driver's behaviour as amounting to menacing driving. The only matter put in issue was whether the prosecution could establish beyond reasonable doubt that the defendant, Ms Aynsley, had been the driver of the car involved in the incident.
There was evidence before her Honour that the complainant and Ms Aynsley, who had formerly been friends, had fallen out over a man with whom each of the women had been romantically involved, and that the menacing driving had taken place close to that man's home.
The Magistrate’s findings
Her Honour provided lengthy reasons for her findings as follows:
The obvious things to say at the outset, this is, of course, a criminal matter and the onus is on the prosecution to prove its case beyond reasonable doubt. There is no onus whatsoever on Ms Aynsley to prove her innocence and, in fact, there was no requirement for her to give sworn evidence but she chose to do so in these proceedings. And it is also not the case of me choosing the evidence of one witness, for example, that of Ms Webster over the evidence of Ms Aynsley. Not only for the offence to be proved must I be satisfied beyond reasonable doubt that I can accept the evidence of Ms Webster but I also must have some sound basis for rejecting the evidence of the defendant and her witness and it is a high onus which is on the prosecution.
At the outset I acknowledge that for both young women I suspect that this was a difficult matter. It is clear that it took place, today in court we have ventilated issues in relation to the breakdown of their friendship that neither of them were comfortable with having to share with strangers. And, indeed, I accept that I still am not privy to a lot of the information about what happened and therefore on some occasions I have had to guess or use my life experience both as a woman, a parent and a long serving judicial officer to perhaps fill in some of the gaps. What I am satisfied about is that the incident or at least the breakdown of their friendship affected both young women profoundly. Each may regard the other as the offender, and I am not sure where the truth lies, but I certainly think my view is reinforced by my observations of each of them today where on occasions perhaps they did not know they were being observed I observed some of the distress each was experiencing.
Unfortunately this matter is in this court and some of what should be an intensely personal matter has had to be ventilated. What I have been able to discern by way of background, and it seems very [bald] unemotional comment, is that it would appear from Ms Webster's evidence that she, at some stage, acted in a way that resulted in a breakdown of their friendship by sleeping with the defendant's boyfriend. According to Ms Webster there are other things that had gone on and that was not simply the reason the friendship broke down but nevertheless it would appear that that is one of the primary causes and no doubt both women have lived to regret that. What is perhaps a significant coincidence – and I use that in a slightly different way of a coincidence [than] Mr Toole thinks that I might have – it does seem to be an extraordinary coincidence that this incident has seemed to have happened close to where Reece – and that is all I know of him – lives. A place where both women might, one could think perhaps, go. Ms Webster, as I understand it because she has an ongoing friendship at least with the man but I have nothing in relation to whether he and Ms Aynsley or not but it is obviously a place that they are both aware of and of the fact that he lives there.
If I can accept the evidence of Ms Webster, of course, the prosecution case would be proved. I found her to be a credible witness. She was – I would not say unsophisticated as [Ms Beljic] did. She was slightly, she was certainly not as fluent as the defendant was or as apparently persuasive as she but, indeed, I found her version of events credible and I note that Mr Toole did not challenge much of it because he does not challenge that the incident took place. There are certain things about her evidence that cause me to pause. For example, talking about the Frangipanis on the window when I would accept certainly, on the balance of probabilities that there probably were none on the defendant’s car on the night in question but it seems to me that in a moment of emergency and panic one could easily mistake seeing something on a window for what one expected to see there. That is Southern Cross stickers rather than Frangipanis so I am not sure that that would be the basis on its own for me to reject her evidence.
And certainly while they do not come immediately to mind there were some instances where what she said may have been slightly inconsistent with evidence that she gave to the police shortly after the event but my view over the luncheon adjournment when I was examining those, that they were no more than those of an honest but possible innocent error of recollection rather than a deliberate attempt to be untruthful. In relation to some of the matters that were raised by Ms [Beljic] in relation to Ms Webster’s evidence, I might go through some of those as well. One of the things that clearly made her believe it was the defendant’s car was the noise of the car. She [said] it had a distinctive noise and I note that, of course, the defendant did not refute that in any of her evidence nor was that challenged and that seems to me to be a not insignificant piece of evidence. It was the noise of a car with which she was very familiar which alerted her to the possibility of the defendant’s presence in the area. She was not very good at describing why the noise was so distinctive other than the car had been worked on or tampered with but I assume there are not too many Hyundai Excels which [have] a deep throaty noise or whatever it was that she described it.
[Certainly] she described the car that came at her and nobody challenges that there was a car as being a white car with ACT plates which certainly ties in with the defendant’s car. She described it as having Frangipanis and, of course, the evidence suggests that the defendant’s car at the relevant time had Southern Cross stickers but apparently in a similar location on the window. One of the things that struck me was that if, for example, Ms Webster was attempting to implicate the defendant in the incident when some other female driver was involved she was very lucky that she happened to pick a taxi driver who seemed to not have too much of a knowledge of Australian car brands or typical car brands on the road. It would be a brave person who found themselves witness to an incident, wanted to implicate somebody else and if it was, in fact, a four door sedan, started to say it was a white Hyundai two door sedan it seems to me that the presence of the taxi driver – while his evidence was, perhaps, not always consistent with [Ms] Webster’s – in fact reinforces my view that the version of events that she was giving was correct.
How could she know that there would be the one male in Canberra who would not be able to readily identify a brand of motor vehicle? I think he said that he thought it was a Toyota or something like that. If she were to maintain a fiction and describe it as the defendant’s car and with Frangipanis she ran the risk of the independent witness being very ably and clearly to refute that. She, of course, gave visual recognition of the other driver being the defendant. It was not just identification. It was saying this is a woman who regarded me as her sister and we looked each other in the eye. It is hard to imagine that she would be mistaken in relation to that. That is, of course, as Ms [Beljic] says, corroborated by her statement shortly after the incident to the taxi driver, “She’s my friend, she’s angry with me.” and, of course, the words of threat that she repeated, while not heard by the taxi driver – again, it would be a brave woman who made those up but in the anticipation that the taxi driver would not hear them they seem to me to be the words of someone who bears a grudge not of a stranger in the circumstances described in the evidence before me.
I must say I find it very hard to accept it is likely that someone would act the way described by both the taxi driver and Ms Webster and menace her in the way that was described and yet not do her any physical injury but then she would seek to implicate the defendant so quickly after the event and with such presence and foresight that allow the real person who menaced her to escape because I accept she and this other person from the comments she repeated knew each other. As I say, that somewhat beggars belief. There is, of course, never any reason or necessity to prove motive in relation to an incident but certainly there is the suggestion in this case that there was an acrimonious end to the friendship of the two women and while neither was keen to provide ... the detail, as I have already said, it did have something to do with their former mutual housemate, Reece. And the incident occurred near where he now lives and on the defendant’s own evidence she had a significant, perhaps rightly so, sense of betrayal although, again, I can only glean some of that from the complainant’s evidence. It was, of course, not put to the complainant that she was deliberately lying or fabricating her evidence but rather that she was mistaken in relation to her identification of the driver. It seems to me that when someone drives at you, makes eye contact with you and you recognise that as someone you believe bears you ill will you are unlikely to be mistaken and ultimately I reject that as a possibility.
In relation to the – because the thought occurred to me as well as Mr Toole described how the defendant, if it was she, would recognise the complainant when they had not seen each other, in either version of events, for some time and in an outfit she conceded was new. I suspect that that simply underestimates the power of observation of women, Mr Toole. It has certainly been my experience that I could recognise my sister a long distance away from me simply because her body shape and form is so familiar to me. I could pick my other out of a crowd of many hundreds, my children and all my close friends. I think it is just one of those intuitive things. I would not place great weight on that. I do not know that that is sound scientific evidence but it does seem to me that if somebody is where you expect them to be, outside Reece’s house, it is not surprising perhaps you drive by and have a look the first time. But certainly there was some eye contact with the women when the hood fell down which would perhaps leave the driver in no doubt as to who the other person was.
The taxi driver – and we will call him that for ease of reference – was certainly trying to be true to his oath. I think that we were all aware that he struggled a little with reading and the oath. I do not think that means he is an unintelligent man by any means but what I did feel is that on occasion when he was asked a question either in evidence-in-chief or cross-examination he sometimes agreed just because it was easier to do so rather than fully answering the question. There were several occasions where he said be [sic] but was pointing away from my view although Ms [Beljic] was very good at picking him up on that. I am sure he saw the incident as he described it and as best he remembered. I am not so sure that his description of the other car, other than being white, was very reliable. He clearly did not want to be involved in the incident by only giving his taxi number but that is a fairly common thing one experiences with taxi drivers in my experience again.
So, my view is that his evidence is corroborative of that of Ms Webster but where there are any inconsistencies I would not expect him to have the same ability to recall detail or, indeed, the same interest in doing so as she. When he arrived he just thought he was picking up a [fare] at first and no more. So, while I accept his evidence generally I am not even positive that I could say that when his statement was taken the police officers would have had any better luck than we did in court in being absolutely positive that what he said or what was recorded was what he had actually articulated notwithstanding the fact that he said he read the statement. Again, I am not saying that there is any dishonesty in his evidence. I am just putting it down to observing something in a very short period of time doing the best he can clearly not being a great observer because he could not describe the make of car.
I should go back a point to Ms Webster’s evidence and say that her evidence that she was moving from point B to point A when the other car, the defendant’s car, she says pulled into the driveway and cut her off from getting into the taxi. When she says “I shat myself to be honest” that is a visceral reaction. That is not something one can create and clearly, in my view, that sort of physical reaction of fear and panic certainly lends support to her evidence that she clearly believed it was the defendant at that case, time, I think, more than anything because of the noise of the car. But clearly it was that was deeply embedded in her psyche for whatever reason. But she then went on, of course, to describe herself as recognising Lauren not just a person who was similar to Lauren. And, of course, there was also the incident where the window was wound down and she had the opportunity to hear the voice, “I’m going to fucking kill you, cunt.” And, again, if she had any doubt presumably that doubt would have been heightened, rather than her recognition reinforced by her visual recognition, by the fact that she had not only the noise of the car, the similarity of the car but she was familiar with seeing the face of the driver but then also hearing the voice. I have no doubts whatsoever, based on Ms Webster’s evidence, that it was the defendant who was driving the car on the evening in question.
That, of course, is not the end of the matter. The test is that not only must I be satisfied beyond reasonable doubt that the prosecution case is reliable but I must also have a sound basis for rejecting the evidence of the defendant and I must say in the witness box she came across as very assured, very relaxed, very polished in the way she gave her evidence. I will turn first to Mr Turner for whom I felt some sympathy. I felt Mr Turner was not in his usual environment and that he was acting very much out of friendship for the defendant. I do not think that he would willingly lie for her notwithstanding the fact that he said he would do anything for her but I do accept that he would believe that what he now thought was the case was so. The reality is that it would, indeed, be very unusual for a housemate – and that is all I have been told they are – to remember specific dates of when your housemate’s car was out of registration. He gave the evidence that it was particularly memorable for him because of the fact the car was put in the garage. But he talked about that before and when he was asked the car was out of registration and he said, “Well, when it was registered she’d drive it and it was unusual for it to be sitting in the driveway for days on end.”
I infer from that it was in the driveway for some time before he reversed into it and it was put in the garage and that was not quite consistent with the story that he was otherwise saying. He said he knew it was unregistered but I didn’t look at the papers. I inferred that he knew it was unregistered because his friend had told him it was unregistered. Doing the best I can and being the most generous I can to him – particularly him apparently having a clear memory of walking past the defendant’s room and saying goodnight to her on the 9, I think it was, September 2012 which I simply do not accept as being fanciful anybody would have that memory. I do not regard his evidence as the [sort] that I could soundly accept. I accept that he thinks these things happened based on his knowledge and friendship of hers but I would not be prepared, in the circumstances, to accept it was anything other than the testimony of a friend doing his best to support a friend and having no reason to doubt any version of events that she had given him.
There was, of course, the little bit of extra where, the one case where Ms [Beljic] pressed him for detail. His version of events contradicted that of the defendant’s. She was cross with him putting the Southern Cross stickers on the car. He had no reason to know that that was what she said and he, of course, said that she wanted them to be put on and she told him to put them on. A minor matter but reinforced me on the view that he was giving a version of events that he was given to support his friend.
As I said, my note was that Ms Aynsley was an impressive witness but ultimately I have determined that she was an impressive but untruthful witness. In relation to the information in the record of interview she gave with police, I have already referred to the paragraphs where I have some considerable concern about the information she gave. She seemed to have specific recall of what occurred on 9 September rather than simply saying, look, doing the best I can but why on earth would I remember so many months ago. This is what my invariable practice was but she did not. And it seems unusual to me and I can only infer because it was after she spoke to the police that she realised that there was a strong case against her that she then went away and Googled the TV guide. I have no reason to assume that Birdcage was not on television that night and that she had used that as an explanation for what she did that evening. I have no reason to doubt that her car was unregistered at the relevant time but it has certainly not been my experience in this court that that means that a car is undrivable although one would hope that when your car is unregistered one would not drive.
But the reality is while the evidence is of what might have been or what, perhaps, has been reconstructed as having been it is not sufficient to cause me any reason to doubt that of Ms Webster I think it was. Ultimately, as I say, I have determined that for whatever reasons the evidence of the defendant is simply not reliable. I hesitate to use stronger language than that but one of the two women was being less than truthful on this occasion. It is not simply me preferring the evidence of one or the other. One is fabricating. One was very positive that she saw the defendant. The defendant’s version of events is that I was at home and I could not have driven my car. I simply do not accept that on the evidence that that is true. So, ultimately I reject the defendant’s evidence, Mr Toole, which leaves me with the evidence of the prosecution case and I am satisfied beyond reasonable doubt, bearing in mind the submissions that Ms [Beljic] has made in relation to the defendant, the manner of driving, that that was menacing and that the offence has been proved.
The appeal
Ms Aynsley appealed against the conviction and sentence, on the basis that:
(a)her Honour's finding of guilt was unsafe and unsatisfactory; and
(b)that her Honour erred in failing to warn herself that the identification evidence may be unreliable in accordance with s 165 of the Evidence Act 2011 (ACT).
The second ground was abandoned before the hearing.
There was also no challenge to the sentence as such.
Counsel for the appellant, despite orders for the exchange of submissions made some months ago, did not provide written submissions, indicating that he intended to rely on the same submissions made in the Magistrates Court. When asked to identify those submissions by reference to the Magistrates Court transcript, he provided (the afternoon before the appeal came on for hearing) a three-page document containing a series of extracts from transcript and a handful of brief comments about those extracts.
Counsel for the respondent provided written submissions.
The appeal, like the Magistrates Court hearing, has been conducted on the basic premise that the Magistrate could not have been satisfied beyond reasonable doubt that the defendant, Ms Aynsley, was the perpetrator of the attack on the complainant.
Consideration
The evidence relied on to identify Ms Aynsley as the driver was as follows:
(a)the complainant's evidence that she recognised Ms Aynsley's car (a white two-door Hyundai Excel) by its appearance (including the presence of frangipani stickers on the back of the car) and its distinctive exhaust noise;
(b)the complainant's evidence that she recognised Ms Aynsley as the driver as the car approached her;
(c)the complainant's claim that she recognised Ms Aynsley's voice when the car driver wound down the window and shouted a threat;
(d)the complainant's claim that the driver had blonde hair worn in a bun; and
(e)finally that the acrimonious end to the friendship between the complainant and Ms Aynsley would provide an explanation for Ms Aynsley acting as alleged.
In the Magistrates Court, defence counsel pointed to evidence raising doubts about that identification, being:
(a)that the taxi-driver's evidence was inconsistent with the complainant's evidence in several respects relevant to the identification of Ms Aynsley as the offender, including:
(i)he did not identify the car he saw as a Hyundai Excel but said he thought it was a Toyota;
(ii)he agreed in cross examination that the car had four doors; and
(iii)he described the driver having light-coloured hair blowing out the open car window;
(b)next, that Mr Turner's evidence was that Ms Aynsley's car did not have frangipanis on the back window but instead had a Southern Cross sticker;
(c)that Ms Aynsley told the police at interview that she had previously had frangipani stickers on her car but that the complainant had helped her to remove them at a time before the incident when they were still friendly;
(d)evidence that Ms Aynsley's car had been unregistered from 1 to 17 September 2012 and Ms Aynsley's claim that she would therefore not have been driving it; and
(e)evidence by Ms Aynsley that was effectively alibi evidence, being that on the night in question she had been at home in her room (although unable to do so in her police interview, at the hearing she had named the TV program she said she had watched that night).
The Magistrate found that Ms Aynsley was not a truthful witness. This finding was largely based on an analysis of the form of Ms Aynsley's evidence as follows:
In relation to the information in the record of interview she gave with police, I have already referred to the paragraphs where I have some considerable concern about the information she gave. She seemed to have specific recall of what occurred on 9 September rather than simply saying, look, doing the best I can but why on earth would I remember so many months ago. This is what my invariable practice was but she did not. And it seems unusual to me and I can only infer because it was after she spoke to police that she realised that there was a strong case against her that she then went away and Googled the TV guide. I have no reason to assume that Birdcage was not on television that night and that she had used that as an explanation for what she did that evening.
At the appeal, counsel for Ms Aynsley challenged her Honour's finding about Ms Aynsley’s credibility, pointing out, for instance, that Ms Aynsley had given some of her evidence by reference to what would usually have happened or so as to indicate a degree of uncertainty.
However, it seems to me that this aspect of her Honour's approach, if it were objectionable at all, was a secondary problem. The real problem with her Honour's decision was that she first formed a view, based on the evidence before her and particularly on her impressions of the complainant and Ms Aynsley, and on the content of Ms Aynsley's evidence, that the complainant was telling the truth and Ms Aynsley was not. Next, having drawn conclusions about the respective credibility of the complainant and Ms Aynsley, her Honour relied on these conclusions in assessing the reliability of the complainant's evidence, and especially in setting aside weaknesses in the complainant's evidence to the extent that it was inconsistent with independent evidence.
This was a dangerous approach because the key evidence in this matter was identification evidence, namely, the complainant's identification of the driver of the car as Ms Aynsley. As well as the well-recognised danger of relying on identification evidence, there were also some specific challenges to that evidence arising from the evidence of the taxi-driver and the evidence of Mr Turner.
Although her Honour recognised the need to take account of the dangers of identification evidence, she concluded by relying on it to reach her verdict.
Furthermore, she focused on her assessment that the complainant was a truthful witness and Ms Aynsley was not in deciding what weight to give to the complainant's identification evidence, thus overlooking the fact that truthfulness and reliability in giving evidence are two separate issues. A witness may be telling the absolute truth as she perceives it but may be completely wrong in what she perceived at the time or in what she remembers.
In this case, however, her Honour's conclusion that the complainant was an honest witness has led her Honour to find explanations for the inconsistencies in the complainant's identification evidence, in effect pulling the complainant's evidence up by its own bootstraps.
For instance, her Honour dealt with the complainant's evidence that there were frangipani stickers on the back window of the car, despite evidence accepted by her Honour that this was not so, by saying:
For example, talking about the Frangipanis on the window when I would accept certainly, on the balance of probabilities that there probably were none on the defendant's car on the night in question but it seems to me that in a moment of emergency and panic one could easily mistake seeing something on a window for what one expected to see there. That is Southern Cross stickers rather than Frangipanis so I am not sure that that would be the basis on its own for me to reject her evidence.
That is, her Honour has explained a mistake by the complainant about the frangipani stickers as mistaking “something on a window for what one expected to see there”. The problem is that this could also be an explanation for a mistaken identification of Ms Aynsley by the complainant; once the frightening assault had begun, involving a car which the complainant recognised, correctly or not, as Ms Aynsley's car or as a car of a similar colour and model, and having regard to the bad blood between the complainant and Ms Aynsley it would not be surprising if the rest of the complainant's perceptions were coloured by her belief that she was being threatened by Ms Aynsley – as her Honour put it, having first formed that belief, she then saw and heard what she expected to see and hear.
Furthermore, her Honour concluded that the complainant's evidence of recognising Ms Aynsley's voice bolstered her visual identification of Ms Aynsley, whereas it is equally possible in my view that the complainant's visual identification of Ms Aynsley strengthened the complainant's perception that the voice she heard was Ms Aynsley's.
Her Honour addressed the difficulties in the complainant's identification arising from the taxi-driver's different perceptions of the kind of car he saw and the driver's hairstyle by comments about whether the taxi-driver properly understood the questions he was asked and whether his evidence was generally reliable.
Her Honour also relied on the incident having taken place near the home of the man over whom the two women had fallen out. The complainant had given evidence to the effect that this man lived at Sky Plaza, near the Southern Cross Club.
However, her Honour, in considering the likelihood of Ms Aynsley having recognised the complainant as she stood outside the Southern Cross Club with her hood on, said:
... it does seem to me that if somebody is where you expect them to be, outside Reece's house, it is not surprising perhaps you drive by and have a look the first time.
It may be that the proximity of Reece’s home to the Southern Cross Club explained that Ms Aynsley's presence in the area would not have been a complete coincidence.
However, her Honour's conclusion that Ms Aynsley would have recognised the complainant standing outside the Southern Cross Club, despite the complainant wearing a large hooded jacket with the hood over her head, because Ms Aynsley expected the complainant to be “outside Reece’s house” between 4.00 and 5.00 am does not seem to reflect the evidence, being that the complainant was outside the Southern Cross Club, not outside the apartment block where Reece lived.
As well as the complainant's direct evidence, there was significant circumstantial evidence against Ms Aynsley. However, there were also some gaps or weaknesses in the circumstantial evidence, such as the absence of any other evidence that Ms Aynsley was in the area at the relevant time or that she would have had any reason to expect to find the complainant there at that time of the morning, that must have been resolved, or dismissed entirely, by reference to her Honour's conclusions about credibility.
Certainly the evidence would seem to have been explicable by alternative hypotheses, either that the attack was committed by someone else with a grudge against the complainant, or that it was an entirely random attack by someone who, having seen a solitary young woman standing in an otherwise deserted driveway in the early hours of the morning, decided for no good reason to give her a fright.
Whether those hypotheses were rational would have depended to a significant extent on the weight placed on the complainant's identification of Ms Aynsley as the offender, an identification which, as already indicated, was inconsistent with some of the independent evidence and could also have been otherwise unreliable given the speed with which events unfolded and the fear to which the complainant testified before the Magistrate. To the extent that the complainant's identification sprang from an initial assumption that the car was Ms Aynsley's car, the certainty of her evidence is unsurprising, but does not establish the reliability of that evidence.
Finally I note the degree to which her Honour focused on excluding the possibility that the complainant was deliberately making a false accusation against Ms Aynsley, for instance, by noting that she, the complainant, could not have assumed that she could give a false description of the car involved in the incident without the taxi-driver confidently giving conflicting evidence. As already indicated, the complainant may have been telling the whole truth as she observed and recalled it, and a false attempt to implicate her former friend is not the only alternative explanation for the inconsistencies in the evidence before her Honour.
There is then the question whether the doubt I experience in relation to this matter is a doubt that should have been experienced by the Magistrate, or whether it is a doubt that could have been effectively resolved by the Magistrate's capacity to assess the credibility of the witnesses, and I refer, of course, to the test in M v The Queen (1994) 181 CLR 487 at 494-495.
There is no doubt that the Magistrate dealt with any doubts she felt by reference to her assessment of the respective credibility of the complainant and Ms Aynsley. However, as noted, her Honour seems to have given that assessment too much weight, to the extent that she relied on the credibility of the complainant as a witness to bolster the identification evidence given by the complainant against doubts about the reliability of that evidence that were raised by the other evidence before the Magistrate.
Conclusions
Given the extent to which the guilty verdict depended on the Magistrate's conclusions that the complainant was a truthful witness and therefore that her evidence, in particular the identification evidence, was reliable, I find, with some hesitation, that the verdict was unsafe and unsatisfactory.
Accordingly, the appeal is upheld, the verdict is set aside and a verdict of not guilty is entered.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: |
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