Barber v Director of Public Prosecutions

[2021] NSWDC 7

District Court

New South Wales

Medium Neutral Citation:

Barber v DPP [2021] NSWDC 7

Hearing dates:

03 February 2021

Date of orders:

03 February 2021

Decision date:

03 February 2021

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 33

Catchwords:

CRIMINAL LAW – conviction appeal – domestic violence offence – whether inconsistencies in complainant’s evidence – whether appellant acted in self-defence – whether appellant’s actions were a reasonable response to provocation

Legislation Cited:

Crimes Act1900 (NSW), s 418

Cases Cited:

AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218

Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244

Douglas v R [2005] NSWCCA 419

Fox v Percy (2003) 214 CLR 118

R v Katarzynski [2002] NSWSC 613

Category:

Principal judgment

Parties:

Mr A Barber (Appellant)
Director of Public Prosecutions (Respondent)

Representation:

Counsel:

Mr M McAuliffe for the appellant
Solicitor Advocate for the Director of Public Prosecutions

File Number(s):

2019/60843; 2019/60824

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Citation:

Unreported

Date of Decision:

21 February 2020

Before:

Magistrate L McManus

File Number(s):

2019/60843; 2019/60824

JUDGMENT

1. This is an appeal against the determination of her Honour Magistrate McManus of the Local Court in Burwood on 21 February 2020 to convict the appellant of the offence of common assault, under s 61 of the Crimes Act1900 (NSW). The offence was perpetrated against the appellant’s then partner, Ms Kumpor, at their home, in Campsie on 24 February 2019.

APPLICABLE PRINCIPLES

2. There is no dispute as to the principles that this Court should apply. They include that whilst due weight should be accorded to the decision of the Magistrate, this Court is to give the judgment which it thinks should have been given. However, the nature of the appellate task is constrained by the circumstance that the appeal is by rehearing, based upon certified transcripts of the evidence of witnesses (albeit supplemented by the tender of the exhibits). Necessarily, the Court will defer to credibility findings of witnesses; at least to the extent that such findings are derived from the Magistrate’s seeing and hearing those witnesses: Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244. It was said in Fox v Percy (2003) 214 CLR 118, albeit in an appeal from a civil case, findings made at first instance based upon the credibility of a witness may only be set aside upon appeal where incontrovertible facts of uncontested testimony demonstrate that the decision at trial was glaringly improbable or contrary to compelling inferences. It must be acknowledged that different considerations arise in a civil trial, particularly in relation to the standard of proof, but the proposition from Fox v Percy which I have referred to underscores the difficulty for an appellant in an appeal of this kind in persuading the Court that error has been demonstrated on the basis of findings influenced by a Magistrate’s assessment of credibility of witnesses, based on demeanour. The same difficulty arises where, as in a case like this, witnesses purport to give physical demonstrations as to how a physical altercation occurred.

3. Different views may have been expressed as to what constitutes error which would justify this Court’s intervention. It may be accepted that the Court will intervene where error below is demonstrated, but how that is established is debateable: AG v DPP [2015] NSWCA 218. In the circumstances, it is not an especially demanding test: ultimately, the practical requirement is for the Court to determine what was the determination which the learned Magistrate should have reached on the evidence before her.

4. The appellant’s written submissions, fundamentally, raise two points.

5. First, on the basis of inconsistencies in what she told the police and her evidence, and also internal inconsistencies within her evidence in the Local Court, the complainant was not a credible witness and, accordingly, the prosecution did not prove that the assault occurred to the requisite standard.

6. Secondly, and alternatively, if an assault did occur, it was done in self-defence and the Crown did not negative that defence to the requisite standard.

7. In considering these contentions, it is pertinent to observe that both the complainant and the appellant gave evidence in the Local Court. Further, the learned Magistrate, with the advantages of having seen and heard the evidence of these witnesses:

1. determined that the complainant was a credible witness; was open and honest about other incidents as between herself and the appellant; and

2. did not find the appellant’s account of the relevant incident to be credible.

WERE THE ELEMENTS OF THE OFFENCE PROVEN?

8. By way of elaboration, the effect of the appellant’s evidence was to accept that he did grab the complainant, which caused her to fall to the ground; and that he did grab her by the neck (1/11/19, T 78).

9. In the face of that evidence, and the learned Magistrate’s demeanour-based findings accepting the credibility of the complainant, in my view, it is untenable for the appellant, in this Court, to maintain, as he did in his written submissions, that the elements of the offence of assault were not made out to the requisite standard. This is so notwithstanding some differences as to matters of detail concerning the circumstances as to how the appellant engaged in the acts constituting an assault, although it may fairly be acknowledged that such inconsistencies, if they were material, may be relevant to the appellant’s alternative suggested basis for this Court’s intervention, being whether he acted in self-defence, to which I will return later in these reasons. As to the suggested materiality of inconsistencies in detail in the complainant’s account, the Magistrate observed that the complainant had certain issues with her language, which she was entitled to take into account. That said, as the Magistrate noted, it was not only the complainant’s account of what she said in Court which would have facilitated acceptance of her account of how she was assaulted. The Magistrate took into account also her report of being choked in her 000 call to the police. That provided some additional evidence capable of sustaining her evidence of being assaulted. Further, the deference that this Court makes to demeanour-based credibility findings is accentuated also in the circumstance that the learned Magistrate saw the complainant and appellant each give demonstrations of how the assault occurred.

10. In oral submissions on the appeal, Counsel for the appellant did not seriously press this basis for appeal. The appellant’s argument that the Crown did not prove that the elements of the offence of common assault were not made out beyond reasonable doubt is rejected.

THE DEFENCE OF SELF-DEFENCE

11. As his Counsel urged in oral argument, the appellant’s real ground of appeal was whether the Crown negatived the appellant’s defence that he acted in self-defence, under s 418(1) of the Crimes Act. The Crown carried the onus of proving, beyond reasonable doubt, that the appellant did not carry out the conduct in self-defence: s 418(2).

12. It was for the Crown to negative:

1. that there was a reasonable possibility that the accused believed that his conduct was necessary in order to defend himself; and

2. there was a reasonable possibility that what the accused did was a reasonable response to the circumstances as he perceived them (R v Katarzynski [2002] NSWSC 613).

13. These requirements, though conceptually separate, are inter-related.

14. There is no dispute that the appellant’s state of mind has to be assessed with reference to the circumstances that he faced at the time of his conduct. As the appellant’s solicitor argued in written submissions, with reference to authority, it is not essential that an accused give evidence as to his beliefs or perceptions if that state of mind is ‘raised’ on the basis of the evidence as a whole: Douglas v R [2005] NSWCCA 419 at [100].

15. In this case, however, the accused did give evidence, which was exposed to cross-examination, and which was the subject of demeanour-based adverse credibility findings made by the learned Magistrate.

16. The appellant’s case before the Magistrate was that he was trying to “restrain her from attacking me back”. In this Court, the appellant’s Counsel argued that it was the complainant who was the initial aggressor, in the verbal sense of ‘yelling’ at the appellant and then in the physical sense of throwing keys at the couch and a make-up a bag, which struck the appellant’s laptop computer. But this submission neglects the immediate context for the altercation and why the complainant acted as she did. It was that the appellant was sitting on the couch, playing a computer game on his laptop and that he was not paying any attention to the complainant’s repeated requests that he pay her the favour of retrieving sunscreen from the car.

17. If nothing else was known about the relationship between appellant and complainant, it was very much to be doubted whether the complainant’s conduct could have led the appellant to think that even if the complainant’s conduct might reasonably be construed as an unnecessary overreaction to the appellant’s neglect of her, the appellant could sensibly have apprehended violence against him or damage to his property.

18. The strength of the appellant’s case as to this ‘subjective’ limb, such as it was, is that he was not only responding to the immediate circumstances of what was occurring in the house on the day of the incident, but more broadly in the context of a relationship with the complainant about whom the Magistrate had accepted was prone to act erratically or unpredictably.

19. Thus the appellant made reference to:

1. the ‘city’ incident of January 2018, whereby the complainant hit the appellant on the face;

2. the ‘city shoe’ incident, also of January 2018, whereby the complainant grabbed the appellant’s shoes before running down the road and scratched him, after the appellant had grabbed her;

3. the ‘rice’ incident, whereby the complainant, on 19 February 2019 (only 5 days before the assault) threw the appellant’s clothes on the floor after he incurred her displeasure (by throwing out left-over food); and

4. the ‘passport’ incident, whereby it was also said that, also on 19 February 2019, she ostentatiously threatened to destroy his passport.

20. The Crown submitted that the first two of these incidents was remote in time to the subject incident and the last incidents did not involve any physical threats. I do not agree that the first two incidents were remote in time: they occurred just over one year before the subject incident. Those incidents, and the later ones, were relevant to informing the context of the relationship: the Crown did not lead evidence, for example, that the relationship was more or less different than in February 2019 then what it was in January 2018. Further, although it may be accepted that the later incidents only involved mishandling of his property when the complainant was in an emotive state, all incidents evinced a struggle in the complainant to control her emotions.

21. In my opinion, given the history of incidents that occurred just over the year, there is a reasonable possibility that the complainant’s acts in throwing items at the accused and his laptop, at close range, in what appeared to be a fit of frustration and irritation with the appellant, the appellant might have perceived that a further attack, towards him or his property, might emanate from the complainant.

22. However, the issue remained whether, at the time when he assaulted her, the appellant honestly believed that he needed to do so to prevent attacks to himself or his property. Contrary to the Crown’s submission, it was not necessary for the appellant himself to speak of his mental state in such precise terms when he gave evidence at trial. It was more than plausible for him to say, as he did, that he “did not know what she was going to do next” (1/11/19, T 76.15).

NO REASONABLE RESPONSE?

23. However, the question remains whether his response was reasonable. The question is entirely objective. The appellant’s Counsel candidly, but fairly, acknowledged that it was difficult to challenge the learned Magistrate’s reasoning in this respect.

24. In this regard, it is necessary to consider the nature, degree and means by which force was used by the appellant against the complainant. One might also add what were the available alternatives to the appellant at the time.

25. However, the appellant’s Counsel argued that it was relevant also to consider the nature of the threat against which the objective quality of the response had to be assessed. Here the appellant’s Counsel relied upon certain inconsistencies in the complainant’s evidence which, so it was argued, might put the events in a more favourable complexion for the appellant. Reliance was placed here upon differences in what the complainant said happened after the appellant had initially grabbed her, and the level of force with which the hand-bag struck his laptop computer, at close range. As to the former, it was submitted that if her evidence was that she was chased by the appellant (albeit only for a short time), rather than having turned away, this might alter the reasonableness of the appellant restraining her as he did. As to the latter, it was submitted that if she hurled the bag at the computer, the level of threat might reasonably have been perceived as more serious than if she had simply dropped it.

26. Neither of these submissions have any merit. Whilst I have accepted, as at least a reasonable possibility, that the appellant may have perceived further attack, the objective limb of the defence is a vastly different matter.

27. Further, contrary to the appellant’s submission, to the extent that there were alternatives available to the appellant to diffuse a ‘volatile’ situation, then the presence of those alternatives is a material circumstance to the question of whether the appellant’s response was ‘proportionate’.

28. Critical, in this regard, was the learned Magistrate’s acceptance of the complainant’s account of how the assault was perpetrated. There was little challenge to that account on this appeal. This was not surprising in circumstances where the account was substantially premised upon the learned Magistrate’s acceptance of complainant’s credibility, and her stated rejection of the appellant’s account, also affected by an adverse credibility finding. In relation to the complainant, the Magistrate took into account, as she was entitled to do, the content of the complainant’s report to the police.

29. Ultimately, therefore, there was no serious challenge to the Magistrate’s finding that it was the appellant who grabbed the complainant, brought her to the ground, and then proceeded to grab her neck and apply force to her neck, thereby choking her, for a period of 5 seconds.

30. The appellant accepted under cross-examination that although the complainant stood before him, a relatively short distance away from him (1 metre), it was open to him to move around her to depart the room (with his laptop). Given concessions that the appellant made that: (a) she was not actually moving towards him; and (b) had no property of his in her hands (1/11/19, T 102) capable of being thrown against him, it could not be said that any attack by her against him was imminent. It was plainly right for the Magistrate to find that there was no immediate threat to the appellant’s person or property. Another way of putting the matter is to say that although there was a reasonable possibility that the appellant subjectively perceived the prospect of further attack, a reasonable person would not have shared the same belief. There was, in truth, nothing to stop him from diffusing the situation simply by leaving the room.

31. On the basis of these findings, it was not only open to the Magistrate to accept that the appellant’s actions did not constitute a reasonable response to his perception of what the complainant might do, the finding was compelling.

32. The Crown discharged its onus of negativing self-defence.

Order

33. The appeal is dismissed. Although not strictly necessary to do so, I also confirm the conviction.

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Decision last updated: 05 February 2021