Black v Lawrence
[2019] ACTSC 266
•30 September 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Black v Lawrence |
Citation: | [2019] ACTSC 266 |
Hearing Date: | 23 September 2019 |
DecisionDate: | 30 September 2019 |
Before: | Crowe AJ |
Decision: | See [89] |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal against conviction – common assault – where it is claimed that the guilty findings of the Magistrate were unsafe and unsatisfactory – appeal dismissed |
Legislation Cited: | Magistrates Court Act 1930 (ACT) s 208 |
Cases Cited: | ED v The Queen [2019] ACTCA 10 |
Parties: | Peter Black (Appellant) Libby Lawrence (Respondent) |
Representation: | Counsel S McLaughlin (Appellant) J Hiscox (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 32 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Theakston Date of Decision: 15 May 2019 Case Title: Lawrence v Black Court File Numbers: CC2018/8638; CC2018/8639 |
CROWE AJ:
Mr Peter Douglas Black (the appellant) was charged with having assaulted his partner
Ms Kylie Dunn (Ms Dunn) causing actual bodily harm. In the alternative he was charged with assaulting Ms Dunn. He was also charged with assaulting Mr Braiden Dunn (Mr Dunn), Ms Dunn’s son. The appellant pleaded not guilty and the matters came on for hearing in the Magistrates Court on 14 and 15 May 2019.
After hearing the evidence called by the prosecution and the defence, as well as their submissions, Magistrate Theakston (the Magistrate) delivered an ex tempore decision on 15 May 2019. He found the appellant not guilty of assault causing actual bodily harm. However, he found him guilty of the two charges of common assault.
Sentencing of the appellant did not proceed having regard to the notice of appeal filed on 7 June 2019. The only ground of appeal specified in the notice was that the Magistrate’s findings of guilt were unsafe and unsatisfactory.
The appeal is brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT) and the applicable principles are set out in Peverill v Crampton [2010] ACTSC 79 by Refshauge J at [24].
In relation to the challenge based on the assertion that the Magistrate’s judgment was unsafe or unsatisfactory, the approach to be taken by the appellate court is relevantly summarised by the Court of Appeal (Murrell CJ, Mossop and Bromwich JJ) in ED v The Queen [2019] ACTCA 10 at [43] in the following terms:
…
(b) The appeal court is to make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, but in doing so it must give full weight to the primacy of the jury and their “advantage” in “seeing and hearing” the witnesses: M v The Queen (1994) 181 CLR 487 (M v The Queen) at 492–494; MFA v The Queen [2002] HCA 53; 213 CLR 606 (MFA) at [59]; SKA v The Queen [2011] HCA 13; 243 CLR 400 (SKA) at [22]–[24]; Baden-Clay at [66]; Dickson v R [2017] NSWCCA 78; 94 NSWLR 476 at [84]–[85]; BI at [15].
(c) On an appeal against conviction on the ground that a verdict was unreasonable, the ultimate question is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen at 494–495. The question is “whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt”: Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]; M v The Queen at 492–494; Kaddour v R [2019] NSWCCA 90 (Kaddour) at [128].
These principles are applicable to the challenge of a decision of a Magistrate (see Goodwin v Williams [2018] ACTSC 279 at [136]-[140] per Penfold J)
Hearing in the Magistrates Court
The prosecution opened the case by describing events said to have occurred during the early hours of 5 July 2018. It was said that Mr Dunn was staying with the appellant and Ms Dunn at their residence in Palmerston, in the ACT. The appellant had become verbally abusive towards Mr Dunn. At some stage, in an attempt to “de-escalate” the situation, Mr Dunn walked away from the appellant who then struck him in the back of the head. Mr Dunn turned around and was struck in the face and head a further four times. He was knocked to the ground and Ms Dunn stepped in between the appellant and her son. The appellant then struck her in the face.
Ms Dunn and Mr Dunn then sought refuge in the bathroom where the latter called police. After police arrived Mr Dunn took part in a recorded evidence in chief interview. Ms Dunn opted not to participate in such an interview. Photographs were taken of each. Those of Ms Dunn demonstrated a “bleeding cut” on her right cheek.
The appellant denied that he had struck either Mr Dunn or Ms Dunn.
Oral evidence in the prosecution case was given by Mr Dunn, Ms Dunn, Constable Libby Lawrence (the informant) and Constable Elias Nikias. The evidence of Mr Dunn and Ms Dunn was given from a remote witness room by audio-visual link. The appellant gave evidence in the defence case.
The video of Mr Dunn’s family violence evidence-in-chief interview with police (which was made at the Palmerston residence at 1:55 am on 5 July 2018) was admitted into evidence as Exhibit “P1”, as was the audio of his call to 000 which occurred at 12:53 am (Exhibit “P2)”. Two photographs of Ms Dunn’s face became Exhibit “P3”. Also in evidence as Exhibit “P4” were three video files recorded by the appellant on his phone. They are described in the electronic file properties summary as having been “modified” at 12:39 am, 12:51 am and 12:52 am on 5 July 2018 respectively. I take this to be a reference to the end point of the recording on the appellant’s phone in relation to each file.
Evidence of Mr Dunn
Mr Dunn’s evidence-in-chief largely consisted of the contents of Exhibit “P1”. He said that he was 25 years of age, and that he lived in Sydney. He claimed that the appellant was very drunk and aggressive. He (the appellant) stood very close and “screamed” derogatory remarks at Mr Dunn while he was trying to prepare some food in the kitchen. He started to walk away and as he did so, the appellant struck him in the back of the head causing him to stumble. He was then punched several more times. Mr Dunn claimed that he had not provoked the appellant who he described as being “on a warpath”. He said that he was punched about five times in total and that his mother had stepped in and the appellant had struck her.
Mr Dunn participated in a demonstration of what had occurred in the sequence of events leading to the assaults. This was shown in the evidence-in-chief interview video. He indicated that the first blow occurred outside the kitchen and adjacent to what appears to be a heater immediately to his left (as he walked away from the kitchen). In response to a leading question, he described being knocked to the ground by the punch to the back of the head, and that he was again knocked to the ground when he was punched in the nose. He said he was terrified. He said that he had consumed three to four glasses of wine since 7:30 pm that night.
Mr Dunn described having pushed the appellant away at one point during the period when he was in the kitchen. He said this was “gentle”, and that he requested the appellant move away. However, he said that at this point the appellant started complaining loudly that Mr Dunn had touched him and that things “escalated” from there.
Under cross-examination Mr Dunn said that the events constituting the assaults against both he and his mother occurred very quickly and that it was only a brief time from the assault on his mother and the time when the both of them moved into the bathroom and locked the door. It took him a minute or so to compose himself before he could call 000. Both he and his mother were distraught. His mother was bleeding on the cheek where she had been struck (he thought it was the left, although he could not be sure).
In relation to the “derogatory” comments which the appellant had made towards him, he said that these consisted of repeatedly calling him “faggot”. That was the main term of abuse. He did not remember the others. He thought the verbal abuse continued over 10 to 15 minutes.
He recalled the appellant as being very intoxicated. His mother was also intoxicated, but not to the same degree.
It was put to him that he was laughing at the appellant and goading him. Mr Dunn denied that. He denied that he had said that the appellant had drunk seven beers and that he had counted them. He also denied that he said he would call the police as the appellant became more and more angry.
Mr Dunn said that he was calm initially but that he had become annoyed as the abuse continued, and that he had said to the appellant to “get out of my face”.
Mr Dunn stated that his mother had been in her office (which is a bedroom in the residence). She had come out at one point and told the appellant to stop it. This had resulted in a short break in the verbal abuse, however, it had started again after a minute or so. Ms Dunn again came out of the office and started telling the appellant to stop yelling at her son.
Mr Dunn was asked about the sequence of blows. He agreed that his account to police on the night was more accurate than his memory at the time of the hearing. He was asked why he had not mentioned being hit in the nose when he first spoke to police. He said that he had remembered it in more detail when he walked through the events later in the interview.
He also recalled at one stage before the assaults, while he was still in the kitchen and after the appellant had come back from his bedroom, that the appellant had kneed him in the ribs. He said that that was by way of “an intimidation tactic” but that “it wasn’t particularly hard” and “it did not hurt”. He denied that his mother threw a glass at the appellant. He said that after they got into the bathroom the appellant banged on the door and he could also hear banging around the house. He was leaning against the door. He observed a trickle of blood on his mother’s face.
Mr Dunn rejected the suggestion by the appellant’s counsel that he had manufactured the claimed assaults with a view to having the police remove the appellant from the Palmerston residence.
Evidence of Ms Dunn
Ms Dunn, in her evidence-in-chief, recounted that the appellant had returned home from hockey. She was unsure of the time. He had, at her suggestion, taken the dog out for a walk. After he returned he had at one point taken offence at something Mr Dunn had said. He moved close to Mr Dunn’s face and started verbally abusing him. He called him a “faggot”, “arsehole” and “prick” and said that he wanted to smack him in the head.
She said that the appellant stormed off to the bedroom but returned and started abusing Mr Dunn again. She claimed that Mr Dunn had put his hand up and said “leave me alone”, and then the appellant started to punch Mr Dunn. This occurred in the kitchen. She recalled the appellant punching Mr Dunn in the torso, and possibly in the face. She screamed at him to stop but the appellant bent Mr Dunn over and kneed him in the stomach.
It was after this incident that Mr Dunn began to walk out of the kitchen and the appellant punched him in the back of the head. Mr Dunn turned around and the appellant continued to hit him. She then threw herself in between them and then the appellant hit her in the face – punching her in the right cheek.
Ms Dunn said that she did not want to take part in a family violence evidence-in-chief interview because she was too scared at the time.
Under cross-examination, Ms Dunn said that she believed she had drunk four beers. She said that was the amount she usually drank on a week night.
She did not remember what Mr Dunn had said to the appellant to upset him. She denied that Mr Dunn was goading the appellant.
In relation to the incident in the kitchen, she said that the appellant had punched
Mr Dunn in the torso. It was more than once, but she could not remember how many times. She said “please stop hitting him” at which point the appellant had kneed him in the stomach. Mr Dunn was bent over, but not on the ground. The appellant said “not hitting him.”
Mr Dunn had then started to walk away from the kitchen, which is when the appellant hit him in the back of the head. She did not see Mr Dunn fall to the ground. He turned around and asked the appellant to stop hitting him. It was after that she jumped in between them and was punched by the appellant.
They went into the bathroom and Mr Dunn locked the door. She sat on the edge of the bath crying. Mr Dunn had his foot on the door while he was talking to police. She could not remember whether he had his back to the door.
She could not remember whether she fell to the ground. She could not recall throwing a glass at the appellant. She also could not recall telephoning the appellant’s brother. Although she could remember the appellant causing a “kerfuffle” when she and
Mr Dunn first went into the bathroom, she could not recall him banging on the door.
Ms Dunn adamantly rejected the suggestion that she had hurt her face when she fell over. She said that the injury was caused by the appellant hitting her.
She denied that she had made up her account of what had happened to Mr Dunn.
Evidence of Constable Lawrence
Constable Lawrence provided a brief account of her attendance at the Palmerston house. She recounted that she had observed the appellant talking to another police officer outside the house. He appeared to be calm. She found Ms Dunn and Mr Dunn in the bathroom. They unlocked the door when the police identified themselves. She confirmed that she conducted the evidence-in-chief interview with Mr Dunn. Constable Lawrence described Ms Dunn as very upset and unwilling to participate in a recorded interview. Ms Dunn expressed fear that the appellant might come back and “get me”. Constable Lawrence said that after the police had arrested the appellant it became clear that he was too intoxicated to interview. He was taken to the watch-house. The three videos from the appellant’s phone were tendered through the Constable.
Under cross-examination, Constable Lawrence said that she had formed the opinion that Ms Dunn was intoxicated. She did not believe that Mr Dunn was overly affected by alcohol.
Evidence of Constable Nikias
Constable Nikias confirmed that he attended on the call to the Palmerston property with Constable Lawrence. He said that he had taken the photographs of Ms Dunn which became Exhibit “P3”.
Under cross-examination he advised that he had made a note of what Ms Dunn had told him about the assault on Mr Dunn. The note said “doesn’t like Mr Dunn, starts on and off with him, hit Mr Dunn, when in the kitchen.”
Evidence of the appellant
The appellant in his evidence-in-chief said that he had never struck Mr Dunn as alleged. Nor had he struck Ms Dunn. He said that he had returned from hockey at about
8:30 pm - 9:00 pm. He had started drinking beers, including while he was walking the dog for an hour or so. He continued drinking after he returned home. Later in the evening he said that Ms Dunn and Mr Dunn were talking about money owed to
“the grandfather”. They came up to the bedroom door, which was when he started the video application on his phone.
The appellant said that in response to what Mr Dunn was saying about him he walked out (presumably from the bedroom) and started to tell Mr Dunn what he thought of him. The first video contained very little actual footage. It ran for over 8 minutes, only recording audio. The appellant said that he must have put the phone in his pocket or perhaps up his sleeve.
The appellant said that he went into the kitchen and was standing between 80 cm to a metre away from Mr Dunn. He admitted that he was yelling and being abusive. He said Mr Dunn was “being a smart arse and laughing at me”. He claimed that Mr Dunn was trying to get him arrested.
He said that during the second video Ms Dunn had come up to him and pushed him physically. He said he told her off for assaulting him. On another occasion, in the kitchen, Mr Dunn had yelled out that he (the appellant) had kneed him. This caused
Ms Dunn to come out of the office yelling at him claiming to have seen the incident. The appellant said, “I was looking at you. How could that have happened.” He said they were trying to get him riled up and arrested again.
The appellant claimed that he found that he had bruising on his hand (from when he hit the fridge) and bruising on his ribs, the back of his head and on his shoulders. He said that this had been caused when Mr Dunn hit him in the back of the head and when he grabbed him and twisted him.
He did not see Mr Dunn on the floor at any stage. He saw Ms Dunn sitting on the floor in front of the bathroom door. He did not know how she got there.
Ms Dunn and Mr Dunn went into the bathroom just after the end of the third video. He went to the bedroom and then went out the front door. He said he did not make noises around the house while they were in the bathroom.
When police arrived he was still upset. He told police that he had video to prove that he had not done anything.
The appellant said that he had drunk six beers and that Ms Dunn must have drunk 10.
Under cross-examination the appellant said that Mr Dunn was trying to pick a fight and that the appellant had “walked away from him and asked him to leave me alone”. He said that they were being “physically aggressive” by following him to the bedroom. That was why he turned on the video function on his phone.
The appellant said that Mr Dunn was trying to make him angry so that he would get arrested again. He agreed that he was doing that by being a smart arse and laughing. When he was asked “why didn’t you just leave?” he said that it was the middle of winter and cold. He also said that he had to go to work the next day. He could not lock himself in his van because it was not in good condition, and he had no friends who lived nearby.
In relation to Ms Dunn being on the floor, he recounted that she was kneeling “like she usually does” and she might have thrown something at him.
In relation to the conversation with his brother on Ms Dunn’s phone, he agreed that he had said that he was “…sick of being treated like shit by this little fucking poofter, little fuckwit that tries to start fights” and that “he needs a fucking kick up the arse…”.
The appellant claimed that he had evidence on his phone that Mr Dunn had lied to police in his evidence on an earlier occasion. However, he did not inform police about that on 5 July 2018 because he was “saving it”. He also claimed that he had evidence on his phone of Mr Dunn threatening to kill him.
It was put to the appellant that Ms Dunn had in fact contacted his brother to try and
de-escalate the situation. He agreed with that. He said that she did not like police coming to the house.
He said that when he spoke to his brother he walked away from Mr and Ms Dunn and went outside the house. He claimed that this occurred when he first started talking to his brother. However, he then said that when Ms Dunn said “get off my son. Get off my son…” and he responded “I didn’t touch your son, he fucking touched me...” that had occurred when Mr Dunn had pushed him into the fridge.
The appellant maintained his denials in relation to the assaults on Mr Dunn and
Ms Dunn.
The Magistrate’s Decision
His Honour commenced by setting out the legal principles applying to the decision making process in a case of this nature. He noted the appellant’s claim that he was goaded by Ms Dunn and Mr Dunn, but that he did not strike either of them. His Honour refers to the video evidence from the appellant’s phone as “telling”. However, contrary to the submission of the appellant’s counsel, his Honour found that the video was inconsistent with the appellant’s evidence. His Honour concluded that the video demonstrates the appellant’s aggressive behaviour, both verbally and physically. His Honour also saw the video footage as showing Ms Dunn and Mr Dunn backing or moving away from the verbal aggression of the appellant. He saw them as acting defensively, not aggressively.
In relation to the reasons given by the appellant for failing to avoid the goading of
Mr Dunn and Ms Dunn, the Magistrate pointed to his failure to retire to the bedroom and close the door. On the contrary, he turned the video on (but failed to actually record events in a clear way) and then continuously verbally abused them and followed them around the living space. This caused his Honour to suspect that the appellant intended to capture video which only supported his claims, and which he might be able to use when dealing with the police.
His Honour noted the contrast between the behaviour of the appellant as shown in the videos and THE calmness he displayed when the police arrived.
In relation to the evidence of Ms Dunn and Mr Dunn, the Magistrate recorded the apparent inconsistency with the former’s account of the assaults said to have occurred in the kitchen. However, at T 22 l40-45 on 15 May 2019, his Honour said:
… When the video is seen, it reminds us all that what happens on occasions such as these occurs over a period of time. There’s a lot of colour and movement, a lot of things are said, a lot of things happen, and it can be difficult for a witness to remember everything in precise detail, in the order that it occurs.
His Honour did not think that the variance in the evidence as to whether
Mr Dunn had his foot or his back to the bathroom door was of much significance. Overall, he rejected the evidence of the appellant, saying:
In all the circumstances, I simply cannot accept any of the (appellant’s) evidence. His claims of being struck, his claims of being pursued are simply implausible, and are inconsistent patently with the video evidence. In those circumstances, I reject his evidence in total.
The Magistrate did have some reservations about whether Mr Dunn was actually knocked to the floor. He also noted that Mr Dunn appeared to smile and laugh during the evidence-in-chief interview. However, his Honour saw this as a nervous reaction. He thought that this also explained some of his behaviour as seen and heard on Exhibit “P4”.
Overall, his Honour accepted Mr Dunn’s evidence. He thought that it was internally consistent. In relation to Ms Dunn, noting her lack of precision, he determined that where there were inconsistencies between the two, he preferred Mr Dunn’s account of events. On that basis he concluded:
In those circumstances, I make the following findings. I find on the night in question the (appellant) struck the back of Mr Dunn’s head. Mr Dunn turned around and received a second blow to the right side of his face near the temple region.
Shortly thereafter the (appellant) struck Mr Dunn again to his face in the area of his nose and shortly after that, the (appellant) struck Mr Dunn two further times to each side of the head once.
At some point during that event, probably shortly thereafter, the (appellant) struck Ms Dunn to her right cheek and caused her to go to the ground. It also caused a small cut to her cheek that bled. Shortly thereafter, both Ms Dunn and Mr Dunn locked themselves in the bathroom and called the police.
I find that on each occasion the (appellant) intentionally struck the complainants, did so unlawfully and did so without consent…
His Honour then went on to explain why he was not satisfied that the appellant was guilty of assault causing actual bodily harm in relation to Ms Dunn.
Submissions
Submissions of the appellant
The appellant argues that the Magistrate’s findings of guilt were unsafe and unsatisfactory on the basis of:
(1) The discrepancies between the evidence of Mr Dunn and Ms Dunn;
(2) The questions raised by the video footage; and,
(3) The questions raised by the 000 call.
In relation to (1), counsel for the appellant points to the evidence of Ms Dunn regarding the initial assaults in the kitchen (including punches to the torso and a knee to the stomach) and Mr Dunn’s rather dismissive account of a knee to the ribs. This flows into the different accounts of the alleged blow to the back of Mr Dunn’s head. On Ms Dunn’s account, that blow is just one among a flurry of blows. Whereas, on
Mr Dunn’s account, it was the first real assault and a significant escalation of what had occurred up to that point. Finally, there is the evidence of Mr Dunn that he fell to the ground after the blow to the back of the head and again fell after being punched on the nose. His Honour appeared to reject that evidence.
In relation to (2), it is submitted that reference to the third video shows Mr Dunn to be acting calmly but then, moments later, in the audio record of the 000 call he is nearly hysterical. Moreover, the video footage is said to be corroborative of the appellant’s account and inconsistent in numerous respects with those of Ms Dunn and Mr Dunn. Thus:
(1) In the early part of the first video some argument can be heard about money.
(2) Mr Dunn can be heard to tell the appellant “you’ve had seven beers tonight, I’ve counted…”. This directly contradicts his denial during cross-examination.
(3) While the appellant is berating Mr Dunn about his failure to adequately contribute financially, the latter responds “no, no, go on, go on”. This was said to be goading, which he denied.
(4) At one point (in the second video) Mr Dunn asks “is that why you kicked me in the ribs?”. On the evidence of Ms Dunn and Mr Dunn this must have been after each had been punched by the appellant. It therefore makes no sense that
Mr Dunn would refer to what he described in his own evidence as an insignificant attempt to knee him in the ribs, rather than the substantial assaults which Mr and Ms Dunn claimed to have suffered by that time.
(5) Mr Dunn, after the point in the video referred to in (4), asserts a number of swings/punches which are not actually seen on the video. The point is made that if these occurred they are not the assaults the subject of the charges.
(6) Towards the end of the second video it can be inferred from the appellant’s exclamations that Mr Dunn had taken hold of him, which was consistent with the appellant’s evidence and inconsistent with that of Mr Dunn.
(7) In the third clip, Ms Dunn can be seen, while on the floor, to throw an object which looks and sounds like it is made of glass. Neither Mr Dunn nor Ms Dunn remembered that, while the appellant said that that she may have thrown something while she was on the floor, although he was not sure.
The appellant contends that the end of the third video demonstrates that the appellant appeared to be walking away, perhaps into a bedroom. This is said to be inconsistent with the Magistrate’s finding as to the appellant’s failure to avoid what he alleged to be the provocations of Ms Dunn and Mr Dunn.
In relation to the audio of the 000 call, it is submitted that at no point, and particularly at the point where Mr Dunn says “he’s trying to bash the door down”, can any such noise be heard in the background. This is said to demonstrate a serious inconsistency in Mr Dunn’s evidence.
Submissions of the respondent
The respondent submits that in order to understand the Magistrate’s conclusions it is important to analyse the context in which he rejected the appellant’s evidence. Reference is made to the following:
(1) The appellant denied striking Mr and Ms Dunn. However, there is objective evidence (bleeding cheek) observed by police for which there is no other logical explanation, other than assault as alleged by the complainants.
(2) The appellant claimed that Ms Dunn pushed him during the filming of the second video. That is not consistent with the video itself.
(3) The appellant also claimed that Mr Dunn assaulted him so as to deliver bruises to his ribs, back of head and shoulders. Again, this is not consistent with the videos.
(4) The claim that the complainants pursued the appellant around the house was clearly false.
(5) The appellant’s assertion that he had nowhere to go to get away from the provocation of the complainant’s was false. He could have returned to his bedroom. He chose to pursue Mr Dunn in an aggressive manner, even though Mr Dunn remained calm.
(6) He maintained aggression, even though efforts were made to de-escalate the situation by Mr Dunn (e.g. sitting down) and Ms Dunn (ringing his brother).
(7) The appellant’s changing reasons for why he commenced filming.
(8) The conduct of the complainants in their movements, as seen in the videos, being entirely at odds with the appellant’s version of events.
(9) The contrast between the demeanour of the appellant demonstrated in the videos and that observed by police.
(10) The appellant’s state of intoxication.
In relation to Mr Dunn, his evidence was consistent throughout the 000 call, his evidence-in-chief interview and in cross-examination. His credibility was not effectively challenged.
In relation to Ms Dunn, while her evidence was more general, it coincided with that of Mr Dunn as to the core events. Allowance had to be made for the passage of time between the events in question and her testimony at trial.
In relation to the differences between the evidence of Mr and Ms Dunn the following points are made:
(1) The asserted strike to the torso is explainable based on her position and the speed at which events unfolded. She was behind Mr Dunn and may well have believed he received such a blow.
(2) The timing of the punch to the back of the head is not as important as the fact that it occurred. In that context the fact that Ms Dunn may have confused the order of events is of little significance.
(3) At one point Ms Dunn perceived Mr Dunn as being bent over. She did not see him falling to the ground, however it is apparent from the video footage that at times she was not looking in the direction of the appellant and Mr Dunn.
The Magistrate properly recognised the inconsistencies between the evidence of the complainants and explained why they did not create reasonable doubt. There is no cogent reason why this Court should view the evidence in a different way.
In relation to the video footage, the respondent submits that there was no inconsistency in Mr Dunn’s demeanour. It is not surprising that he was emotional by the time he and his mother had reached the bathroom having regard to the assaults. Conversely, the change in demeanour of the accused when talking to police stands in stark contrast to his aggression towards the complainants.
The asserted corroboration in the video of the appellant’s version relates to peripheral matters. It does not assist his credibility in relation to the central allegations. Furthermore, the tone of Mr Dunn’s voice when he says “no, no, go on, go on” does not support the appellants proposition that Mr Dunn was “goading” him. It is evident that Mr Dunn was merely accepting that the appellant would continue to be abusive.
The appellant’s submission as to the Magistrate’s criticism of the appellant for not retreating to his bedroom is misconceived. The Magistrate was dealing with the opportunity to avoid the alleged taunting at the beginning. The fact that the appellant went to the bedroom at the very end of the events in which the assaults occurred is not to the point.
The throwing of the bottle by Ms Dunn is a matter of no real significance.
In relation to there being no evidence of banging on the recorded 000 call, the respondent says that the evidence was not sufficient to allow this inference to be drawn. There was no evidence as to the quality of the phone, nor that of the
Australian Federal Police recording system. If the appellant was to succeed on this issue he should have called appropriate expert evidence. Moreover, it is noted that it is at times extremely difficult to hear Ms Dunn’s voice and the volume seems to change during some sentences.
There is no basis in any of the appellant’s submissions for finding a reasonable doubt as to the assaults by the appellants on the complainants.
Consideration
As to ground (1) relied on by the appellant (see paragraph [67] above), it seems to me that the Magistrate was conscious of those discrepancies and explained his reasoning for nevertheless accepting the evidence of Mr Dunn and the broad thrust of the evidence of Ms Dunn. I accept that his Honour probably rejected the claim that
Mr Dunn was actually knocked to the floor. However, he was entitled to reject that part of the evidence and still accept Mr Dunn’s evidence of the assaults. Although
Mr Dunn gave his oral evidence by audio-visual link, the Magistrate still had the considerable advantage of seeing and hearing him, particularly under cross-examination. I do not see these issues as requiring the Magistrate to form a reasonable doubt as to the evidence of Mr Dunn in respect of the punching episodes.
I have watched the videos comprising Exhibit “P4” several times. I have also listened to the audio of the 000 call (Exhibit “P2”). The quality of videos two and three of “P4” are very poor. There is a split second towards the end of video three showing Mr Dunn doing something with a mobile phone. He may be calm, or he might be in shock – it is hard to tell. There is certainly not enough there to allow an adverse conclusion to be drawn as to his reliability from the contrast with the degree of distress evident in “P2”.
In relation to the other issues identified in paragraph [68] above, I would comment as follows (by reference to the sub-paragraph numbers):
(1) The point made is accurate. However nothing turned on it. In rejecting the appellant’s evidence it seemed to me that his Honour was dealing with his evidence as to the substance of the assaults and the appellant’s claim that
Mr Dunn and Ms Dunn were just trying to stir him up to cause trouble for him with the police.
(2) Again, the point made is accurate. That being said, it is a peripheral detail. No submission about this was made to the Magistrate. His Honour plainly did not think that it affected Mr Dunn’s overall reliability as a witness of truth. It is not surprising that Mr Dunn did not recall the detail of everything said on the night in question. His evidence was given more than
10 months later. He had not seen (or heard) the video record constituting “P4”.
(3) The comments in (2) apply here. Also, it appeared to me that the exchange in which Mr Dunn said those words was one in which he was reacting somewhat sarcastically to what appeared to be an escalating series of insults directed at him from the appellant. I would not classify it as “goading”.
(4) The comment about the “kick” was made just after the start of video two. I read the file log that ended at 12:51 am. It is just over two minutes in length. It must have commenced at 12:49 am, which is 10 minutes after video one finished. Having regard to the location shown in the video it seems likely that the punching assaults alleged by Mr Dunn must have occurred during that
10 minutes. However, the comment about the kicking was made in the context of the appellant having commenced the video by saying:
This is a new recording that is going on about you fuckwit that has just fucking pushed me against the fucking fridge and tried to call your mum for assaulting you…
It seems to me that Mr Dunn’s comment was directed very much at what had happened in the kitchen. On that basis I do not see any real force in the appellant’s submission on this point.
(5) Insofar as it is possible to make out what is occurring in videos two and three, I should say that I agree with the Magistrate. The videos show the appellant pursuing Mr Dunn and reacting violently at Ms Dunn’s attempts to get in the way. Although it is not entirely clear, it appears to me that it was in the course of the latter that Ms Dunn was struck and fell to the floor.
(6) Given the attempted self-serving nature of the videos, I suspect that the Magistrate placed little weight on the verbalised claims made by the appellant at various stages in these videos. I agree with that approach, particularly given the defensive posture adopted by Mr Dunn and his attempt to help his mother as the appellant continued to come forward.
(7) Given the confused sequence of events, and the likelihood that the appellant had the chance to refresh his memory from the videos while Ms Dunn and
Mr Dunn did not have that opportunity, I do not see any substance in this point.
The final point made by the appellant relates to the absence of a banging noise on the 000 audio (Exhibit “P2”). The appellant’s counsel at the hearing did cross-examine
Mr Dunn about the noise being made by the appellant during the time when Mr Dunn and his mother were in the bathroom (see 14 May 2019, T 27 to 28). Mr Dunn maintained that the bashing sound might have been “fists on a door”. It did not last very long and then he could hear bashing around the house. In relation to the banging on the door, Mr Dunn agreed that the sound “would be very loud”. He was then asked “it was very loud?”. He answered “yes, I think so.”
The difficulty with all of this is that it was not actually put to Mr Dunn that the appellant did not bang on the door. Nor was it put to him that the absence of background banging on “P2” was significant in demonstrating that it did not happen.
I am not able to assess whether the mobile phone being used by Mr Dunn was one which was capable of picking up all background noise. I note that there are a couple of times when Ms Dunn speaks. She is in the bathroom sitting on the bath. It is very difficult to make out what she is saying. Mr Dunn said he had his back on the door. It may well have been that if the appellant had banged on the door with his hands at the point where Mr Dunn was leaning the sound would have been muffled. There is force in the submission of the respondent that the appellant required expert evidence if he was to make anything of this point. In the absence of such evidence, I am not able to draw a reliable inference either way. I am certainly not able to draw an inference sufficient to demonstrate that Mr Dunn’s evidence should not have been accepted.
Conclusion
Having regard to the above, it seems to me that it was open to the Magistrate to be satisfied beyond reasonable doubt that the appellant was guilty of the two common assault charges. Having reviewed the evidence, I do not consider that his Honour’s conclusions in that regard entailed a miscarriage of justice. The appeal should be dismissed.
Orders of the Court
The order of the Court is:
| I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Judgment of his Honour Acting Justice Crowe Associate: Date: |
(1) The appeal is dismissed.
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