Braham v The Queen

[2020] NSWDC 809

District Court

New South Wales

Medium Neutral Citation:	Braham v R [2020] NSWDC 809
Hearing dates:	03 November 2020
Date of orders:	03 November 2020
Decision date:	03 November 2020
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Appeal dismissed.
Catchwords:	CRIME – APPEAL FROM LOCAL COURT – A conviction of common assault of a bicycle rider and of recklessly damaging his bicycle – Inconsistency between evidence adduced by the prosecution and evidence given by the appellant – Magistrate had the advantage of hearing and seeing the witness – Minor inconsistencies of no substance – Inconsistencies between prosecution witness and appellant make appellant’s evidence implausible – Appeal dismissed.
Category:	Principal judgment
Parties:	Appellant – Tony Reuben Braham Respondent – Regina
Representation:	Appellant – J. Byrne Crown – A. Poulos (DPP)
File Number(s):	2019/00140177
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 30 October 2019 Before: Thompson LCM File Number(s): 2019/00140177

Judgment

1. HIS HONOUR: This is an appeal against two convictions recorded by Magistrate Thompson sitting in the Downing Centre Local Court on 30 October 2019. The appellant was charged with the offence of common assault of Michael Ong on 22 November 2018 in this city at approximately 4.45pm. He was also charged with intentionally or recklessly damaging property, the property being a bicycle owned by Michael Ong. That is alleged to have occurred at the same time as the common assault.

2. At the hearing evidence was given in the prosecution case by Constable Lauren O’Dea, by Michael Ong and by Bruce Pyne Perry, a lay witness. In the defence case evidence was given by the appellant.

3. On Thursday 22 November 2018 Michael Ong was riding a bicycle in the northbound bicycle lane on Kent Street in the block behind St Andrew’s Cathedral and the Sydney Town Hall. He was driving in the direction of Druitt Street. He observed a silver coloured BMW emerging from the underground car park. Vehicular traffic is required to travel north in Kent Street. It is a one way street for vehicular traffic although bikes may travel in either direction on the bike lane.

4. In his evidence-in-chief Mr Ong said that when he observed the BMW it was about ten to 15 metres away from him. However, the BMW could not enter the vehicular traffic lanes because of a build-up of traffic. Accordingly it stopped, obstructing the bike lane. Mr Ong applied the brakes of his bicycle. From CCTV footage which is exhibit 2 both in the Local Court and in this Court, it can be observed that Mr Ong was braking his vehicle and managed to bring it to complete stop before it would have struck the BMW. His evidence then continued in this fashion:

“I mounted the front wheel onto the footpath behind the vehicle and…I have a road bike with clipped pedals, so I had to unclip both feet. So walked behind the vehicle and tapped the car, just to make sure that he doesn’t back into…me as I go behind the vehicle and then I went around the vehicle. I started to click back onto my pedals and then the driver came out…”

The witness then said that he tapped the vehicle with the fingers and hand of his left upper limb.

5. After he passed the rear of the vehicle, whilst on the footpath, he said this:

“Q. The driver got out of his vehicle, what happened after that?

A. Then he pushed me off my bike, so I fell onto my back, still with the bicycle between my legs.

Q. How did he push you?

A. With his hands.

Q. Was it one hand or both hands?

A. Both hands.

Q. How many times did he push you?

A. Just once, so - yeah, one is enough for me - one is enough to get me off my bike.

Q. Okay and where did the push make contact with you?

A. The push bike, the..

Q. No, when he pushed you said he used [his] hands..

A. On my chest, on my chest.

Q. Made contact with your chest. As a result you fell to the ground, is that right?

A. Yes.

Q. What happened to your bike?

A. So it fell as well. So it was still between my legs.

Q. Up until this point had the man said anything?

A. He said something before not when I was on the ground so..

Q. Okay, what did he say and when did he say it?

A. He said, ‘Don’t touch my car’.

Q. Did he say that before he pushed you or after he pushed you or during the push?

A. Before he pushed me. As soon as he got out the car.

Q. Can you describe the volume or tone of voice?

A. He was aggressive.

Q. When the push made contact with you, where were you in relation to the driver’s door? Can you estimate a distance between yourself and the driver’s door at the time you were pushed?

A. I was in line with the rear of the car. Most likely behind, not, not, not beside, was more behind the car.

Q. Are you able to estimate the distance between it in metres or other units between yourself and the door at the time you were pushed?

A. About, I would say, being a four-wheel drive, maybe about two metres.

Q. After you were pushed and you fell to the ground, what happened after that?

A. So he - the driver took a few steps back and then he ran towards me and kicked me just below my armpit. So I raised my hand to protect my head, I wasn’t sure where he wanted - where he was aiming at, so I just raised my hand and he - so he connected just below my armpit.

Q. Which is it, your right or your left armpit?

A. Left armpit.

Q. Do you remember which leg he used?

A. No.

Q. Can you describe the force in the push, was it -

A. So from my observation on the ground, it - it’s as if he’s kicking a field goal or a soccer penalty. So it was a full force, it wasn’t attack, it was with a run up.

Q. After that, what happened next?

A. So there were some bystanders who immediately surrounded me and there was another person who actually put himself between me, and…the driver and then there was another guy who came along as well, so at that point the driver couldn’t do anything, because there were two guys actually who put themselves between the driver and myself.”

6. The first person to come to the assistance of Mr Ong was Mr Bruce Perry. He was a person who intervened physically between the complainant and the appellant.

7. At about 6.50pm that evening Mr Ong presented to the Day Street police station in the city and made a complaint which was recorded by a then Probationary Constable, Lauren O’Dea. It is clear from now Constable O’Dea’s statement that details of Mr Perry were provided to then Probationary Constable O’Dea by Mr Ong which led to Mr Perry providing a statement to the police on the 2 December 2018.

8. On 4 December 2018 the owners of the Wilson car park under the Sydney Town Hall buildings caused CCTV footage to be dropped off at the Day Street police station. On 23 January 2019 Probationary Constable O’Dea and Senior Constable Salman visited the appellant at his home and on a body worn camera obtained a record of interview with the appellant.

9. The appellant was asked whether his car was involved in an incident on 22 November 2018 at approximately 4.55pm although the events in question happened at 4.45pm. The appellant could remember a pushbike rider punching his car and spitting on it and then spitting on him. The next full description of the incident given by the appellant was this:

“…I came out of a car park. It was parked, it was stopped not parked. The driveway comes up then down and I was stopped there waiting to join into traffic. I was stopped there minding my own business to join in. Ahh no, there was nobody walking past me or bike riding past. Nobody else anywhere near me, so it was all perfectly safe. But I couldn’t move into traffic because there was cars. Um so I am sitting there waiting. And then all of a sudden bang. I look and there is this guy punching my car. So I screamed out you know what the fuck are you doing? He said you’re in the bike lane, I said yes I am leaving the building how am I meant to get into the traffic? There was no bike riders there. Um and he spat on my car. I got out of the car. He came round the side, came up to me spat on me and I pushed him away. That is it okay I got in my car and drove off. End of story.”

10. The appellant was then formally cautioned, albeit that he told the police prior to the caution that he was assaulted by the bike rider and he did not assault the bike rider. The appellant went on to say that he had attended a meeting at the City of Sydney Council Chambers or office block. He then was asked, how did he feel when he heard the bang and he said this:

“I heard it and saw it, multiple times he hit my car.

Q. You just need to describe in detail what you heard and saw.

A. Well obviously there was shock, because first off I didn’t see what it was right. It was just a big loud bang. Ahh I looked and the guy’s punching my window. Rear window and the rear corner of the car, the metal. Right and spat on the window and was screaming at me. Uhm and that is why I got out of the car.”

The appellant was then asked whether there was any damage to his car and he said that there was not. He then described Mr Ong as an Asian-looking guy who he thought was aged 30 plus years. He said that Mr Ong spat on his shirt and some of the spittle went onto his face. He identified later that the area of his face where the spittle hit was the chin.

11. When asked about pushing the bike rider the appellant said that he pushed with both his hands and demonstrated that to the police. He then said that the complainant on his bicycle fell over. A little later the appellant was asked what occurred after the bike rider fell over. The appellant said that he continued to scream at him and to spit on him. When asked to be specific as to what he said, this is recorded:

“He called me a fucking cunt and all that sort of stuff. Mm and I said mate what are you doing? You hit my car, you are spitting on me. All I am trying to do is to get into traffic….you can’t be in the fucking lane, it is for the bike riders. You’re not allowed here. All very, massively aggressive.”

When asked to explain about his fear of his car being damaged he said this:

“I thought there should have been damage. Because it was very loud hitting. But obviously a hand hitting a car is different to, ‘cause my assumption was the bike. I wanted to get out of there because he was very aggressive to me. I’m in my suit in the city, I have never had an incident with anybody ever in my whole life. I’m a 48 year old man with a family and children. Um and it came on quite a shock to me to be assaulted that way. I wasn’t doing anything wrong. So um after it happened, it happened and that was it. No harm done I had I have had my shirt washed.”

12. The appellant went on to say that he received a phone call from a friend of his who was a property worker, Brendan O’Sullivan, who told the appellant that he saw what had happened and made a comment about crazy bike riders being so aggressive. The appellant gave the telephone number of Brendan O’Sullivan to the police. However, it is clear that Mr O’Sullivan did not return a number of phone calls made to him by Constable O’Dea on the 2nd, 4th, 14th and 20 February 2019.

13. The appellant also gave some information about the person who is clearly, Mr Perry. He said this:

“There was somebody who came along, and screamed at me and said what are you doing? And I said what do you mean, what am I doing. The guy hit my car and spat on me. Then he screamed at me and said he is a person. And I said what do you mean he is a person? I’m a person and he has just assaulted me. He said you can’t push him off his bike, and I said I can because he just assaulted me. And I got back in my car and drove off.”

It was then suggested to the appellant that he may have kicked the bike rider as well but he firmly denied that. He also denied seeing any damage to the bicycle. However, he did go on to say that his leg or the cuff of his trousers may have caught in the wheel of the pushbike and caused him to stumble a bit. He went on to say that he pushed the complainant away because he was scared of what the complainant might do to him and he said that he was “defending myself basically”.

14. When called to give evidence the appellant said that when he was interviewed by the police he told the truth and he adopted on oath what he told to the two police officers who interviewed him at his home on 23 January 2019.

15. Mr Bruce Perry did not know either the complainant or the appellant. There is no evidence of any interaction between the complainant and Mr Perry after the events of 22 November 2018 other than a friendly exchange of text messages. Mr Perry had parked his bicycle in the Wilson car park. He was riding to exit that car park and clearly used the same exit ramp that the appellant had. He said that there was a large white car in front of him heading up the ramp a few metres in front of him. He said that when he got to the top of the ramp he noticed the car was stopped across the bike path so he stopped as well. He then said that he saw the driver get out of the car and walk over to the man on the bike who was standing straddling his bike. He then said that he saw a person, clearly the appellant, push the bicycle rider over and that he then saw the appellant kick the bicycle rider.

16. There is a little inconsistency in that brief description. The appellant’s car is a silver BMW. The closed-circuit television footage shows the appellant’s silver BMW being driven up the ramp and out onto Kent Street followed by a large white Audi. That Audi had to stop in the exit of the ramp because he could not proceed to block the footpath as the appellant was blocking the bike lane. However, it is likely, in my view, that the witness, Mr Perry, probably then passed the white Audi to reach the top of the ramp but did not proceed further because of the silver BMW and he has confused the two vehicles. One has to reconstruct somewhat what must have occurred because of inadequate cross-examination of Mr Perry.

17. Mr Perry said that he was about three metres away from the complainant who was on his right. He was standing with the bike straddled underneath him. He thought that the complainant was about two to three metres away from the other vehicle meaning the appellant’s vehicle. He said that the complainant was heading in northerly direction which was the direction in which he had been riding on Kent Street before the bike lane was obstructed by the appellant’s vehicle. He then said that he saw the appellant pushing the complainant with two palms held outwards and that he made contact with the complainant in the “shoulder-chest area”. Mr Perry said that he had seen the appellant alight from his vehicle and walk over to the complainant “at a quickish pace”. Initially he said that he did not hear any conversation passing between the driver and the cyclist before the push. After he saw the push he was asked what happened next. He said this:

“..the push and then a kick, I then yelled out ‘Get away from him’, twice, in a loud voice. The driver looked at me stepped away, said ‘He ran into my car’ and started to walk towards his car. I said something else in relation to, you know, a person is worth more than a car, something along those lines and he said again, ‘He ran into my car’, and then he entered the car and drove off into Kent Street.”

He maintained that the driver of the motor vehicle kicked the complainant when he was on the ground using his right foot and hit the complainant around his chest area. When asked to describe the kick he said: “Like someone kicking a soccer ball”. The witness went on to say that he, at the time he started speaking about the cyclist, he had dropped his bicycle and probably took about two steps towards them, that is the appellant and the complainant.

18. It is significant in this case that both Mr Ong and Mr Perry deposed on oath to the appellant’s kicking the complainant when the complainant was lying on the ground, in essence, unable to defend himself. Unlike the learned magistrate I have not had the opportunity of hearing and seeing the witnesses. As required by law I can only rely on the written depositions.

19. Her Honour’s reasons comprised some three pages. She recited the evidence given by the complainant, the evidence given by Mr Perry, the closed-circuit television which was played, the recorded interview with the appellant which was put into evidence in the prosecution case, and also directed herself in law.

20. Her directions to herself were completely appropriate. She pointed out that the prosecution bore the onus of proof and that the onus of proof never shifted to the person she described as the defendant, the current appellant. She pointed out it was not for the defendant to prove that he was not guilty but for the prosecution to prove his guilt and to prove that guilt beyond reasonable doubt. As a corollary of that basic proposition the prosecution was required to exclude the version of events given by the appellant as a “reasonable possibility”.

21. Because it is succinct I will quote what her Honour said about the CCTV footage:

“I have had the opportunity to re-watch the footage multiple times in my deliberation including enlarging the segment of the footage where the incident took place. It shows the complainant on his bike moving up the bike lane, when he passes the parking metre, which is able to be observed on the screen. The defendant’s car can be seen to move into the bike lane ahead of him. The defendant’s vehicle stops and the complainant can be seen at the back rear left corner of the defendant’s vehicle before moving behind the car. At the point that he moves behind the car a figure can be seen moving to the right rear of the vehicle in a falling motion. That figure becomes stationary a distance behind the car.”

22. Her Honour’s reasons are succinct. After directing herself in law her Honour said this:

“I note that the witness, Mr Perry and the complainant were not known to each other. There was no evidence before me that they had spoken about the details of the incident before they made their statements to police. The evidence of the witness, Mr Perry, supports the complainant’s account to a significant degree. Mr Perry saw the defendant leave the motor vehicle and approach the complainant. He saw the defendant push, then kick as described by the complainant. It is of note that Mr Perry did not hear the defendant say anything at the scene regarding spitting, nor did he give evidence that the push took place in the vicinity of the driver’s door. Rather his evidence is that it took place at the rear of the vehicle. There was no evidence that Mr Perry’s view was obstructed in any way.

CCTV footage also supports the account of the complainant. He can be seen in the rear quarter of the vehicle before moving behind the car. It is the area behind the vehicle that he is seen falling over. This is consistent with his account that the defendant approached him as he moved behind the vehicle. The evidence of Mr Perry in the CCTV directly contradicts the account of the defendant. The defendant’s account that he pushed the complainant as he moved towards him at speed near the driver’s door is not supported by either Mr Perry or the CCTV.

Further, there is an inherent implausibility in his account, namely that the complainant with the bike between his legs, manoeuvres at speed towards him, all the while balancing the bike. His action in leaving the motor vehicle is consistent with the conduct as alleged. Namely, he was angry his vehicle had been struck and sought to confront the complainant. On the totality of the evidence, I reject his account as a reasonable possibility. I accept the complainant’s account beyond reasonable doubt, taking into account the eye witness testimony of Mr Perry, supported by the CCTV footage. On that account, self-defence does not arise as a matter of fact. The defendant approaching the complainant, pushing him over and kicking him.

Even on the complainant striking the defendant’s car, the prosecution have clearly negatived the conduct as a reasonable response in the circumstances as the defendant perceived them, noting that the level of the contact on the complainant’s account which I have found beyond reasonable doubt was striking the vehicle once. I am satisfied beyond reasonable doubt that the offence of assault was made out.”

23. As to the second charge her Honour accepted that the damage was occasioned by the reckless behaviour of the appellant in pushing the complainant over as he was straddling his bike causing damage to the bike. There was in evidence a quotation from the Clarence Street Cyclery for damage to a Canyon road bike in the amount of $1,112.95.

24. The first thing to note is this. The subtle effect of demeanour upon the tribunal of fact cannot be overlooked. The learned magistrate had the advantage of hearing and seeing the witnesses and making her own assessment of the evidence. She clearly accepted the evidence of the complainant and Mr Perry and rejected the evidence of the appellant. One cannot exclude demeanour as having the role to play in that.

25. There was the major inconsistency of whether the kick occurred or not. Her Honour accepted that it did. Therefore she was required to reject the evidence of the appellant that he did not. That is a major inconsistency not a mere bagatelle. It is a major factor in the case not something that could be blurred from memory and certainly it was not blurred from the memory of either the complainant or Mr Perry.

26. The submissions put to me on behalf of the appellant concern the unreliability of Mr Ong and Mr Perry. I again point out that the relevant events occurred over four seconds on 22 November 2018 and the evidence was given in the Local Court on 30 October 2019, over 11 months later. That there may be inconsistencies in detail is completely explicable by the fallibility of human memory. Often memory of details fades with the passage of time. For example, there was an inconsistency, if one wants to call it that, as to where the appellant’s push struck the complainant’s body. I have already quoted the evidence in which the appellant said that he was pushed in the chest. This piece of cross-examination was directed to that issue:

“Do you agree with that - you’re nodding your head, sorry, you have to give an oral answer so that it’s recorded?

A. Yes, yes, upper body yes.

Q. When you said “chest” today, didn’t you?

A. Yes.

Q. You want to resile from that a bit now and say “upper body” because you know you said something different in your statement, correct?

A. Yes.

Q. What you said in your statement was that [he] pushed you to your shoulders?

A. Yes.”

I should have mentioned before quoting that, that shortly before that time the witness was shown his statement which had been marked for identification “B”. Clearly he saw the words “shoulders’ there and realised that he had said in evidence “chest” and wanted to compromise by saying “upper body”. This is alleged to be an unreliable aspect in his evidence but what it can also be described is a mere forgetting of detail. The important point is that it is common ground that the appellant pushed the complainant with both his hands causing him to fall with his bicycle.

27. The next issue was when did the appellant say to the complainant, “Don’t touch my car”. I have already quoted his evidence-in-chief that it was said before the push but in cross-examination at p 17.18 of the transcript he said that he agreed that in his statement he did not say that until after the appellant had pushed him over. Really nothing hangs on that inconsistency.

28. It was also pointed out that there was additional evidence given in chief that did not appear in the statement commencing at T16.31. The evidence commences thus:

“Q. But then he pushed you, he said, ‘Don’t touch my car’?

A. No he said, ‘Don’t touch my car’ and he came running towards me before he pushed me.

Q. So you say he yelled those words before he pushed you?

Q. He ran towards you?

A. Yes.

Q. When you gave your statement to police on the day, you didn’t say anything about the male running at you, do you agree with that?

A. I don’t remember not saying it, but now that I think about it - he was - it wasn’t a walk, he was actually charged towards me.”

The witness was then shown his statement and this question was then put:

“Q. If you look at paragraph 4, for me, please sir, on the first page? Do you agree that nowhere in that paragraph do you mention the word “run” or “moving quickly” towards you or “charging” or anything that describes the driver moving at speed towards you?

A. Yes, I recognise it’s an omission, yes.”

29. Was this an omission or was it embellishment? There is some support for the appellant’s moving at a brisk pace towards the complainant, from Mr Perry. It may well have been an omission from the statement but it represents perhaps an impression left on the witness by the pace at which the appellant had moved. However, it does not deny the very essential fact that it was the appellant who approached the complainant and not vice versa as the appellant would have it.

30. There was also a suggestion made that the complainant may have embellished his account because it is clear from the statement of Constable O’Dea, exhibit 1, at [5] that the complainant gave her details of a witness but the appellant said at T10.47 that two people gave him their details after the incident. That was taken up in cross-examination commencing at T18.32 but it is clear that one of the persons who provided details to him was the lady who took a photograph of the registration number of the appellant’s vehicle. If the complainant were able to give those details to the Senior Constable she really did not need to record the source of that information unless it became critical and it was not because clearly the appellant agreed that he was the driver of the vehicle involved in the interaction between the appellant and the complainant.

31. The alleged inconsistencies, in my mind, are of no moment whatever and clearly result from the fallibility of human recollection for fine details of event that occurred over a fleeting four seconds almost a year earlier.

32. Similarly there was an attack upon the reliability of Mr Perry. Clearly he mistook the appellant’s silver BMW for the white Audi. The witness, himself, that is Mr Perry cannot be seen in the CCTV footage taken at the P2 exit ticket machine.

33. There was an issue as to what exactly the witness did see and Mr Byrne for the appellant, who did not represent him in the Court below, pointed out this evidence commencing at T29.37:

“Q. Were you looking to keep an eye out for pedestrians as you rode out of the car park as well?

A. Yes, yes.

Q. So your attention was split between what you were seeing with the car, this other cyclist and also pedestrians around the place?

A. Yes.

Q. When the driver pushed the cyclist, did you see the bike was falling, he got caught up in the bike with his legs? That is the driver?

A. The driver, no, I didn’t notice that no.

Q. He could have though, you didn’t see it or you..

A. I suppose it’s possible, but I didn’t notice it, no.

Q. And he might have stumbled as a result of getting caught up in the bike?

A. I didn’t notice that no.”

What the witness failed to notice was something relied upon by the appellant and the witness’ not noticing it makes it implausible or improbable that what the appellant said happened, did happen.

34. There was an also an issue as to what the witness heard, the suggestion being that because it was inconsistent with what the appellant said, that his recollection might be faulty. However, all that the witness said that he heard was the appellant saying, “He hit my car”. He probably did not say that but he may have said, “You hit my car” but the gist of the thing is there.

35. There was no mention made by the witness of his hearing a complaint of there being spitting, a fact relied upon by the magistrate, to find it improbable that that is what occurred. After all, it was the spitting which is alleged to have caused the need to push the complainant away which push amounted to the common assault as well as the kicking.

36. I have carefully read the transcript and I find no blaring inconsistency making the finding of the learned magistrate improbable. Indeed, everything I have read points in the direction that the finding made by the learned magistrate was correct in substance.

37. I mention a question earlier to which I should return and that is the issue as to how far away the complainant was from the appellant’s vehicle at the time that he noticed it. There is inconsistency between whether it was ten and 15 metres or five to ten metres and the appellant eventually said ten metres. On my viewing of the film it appears to be more like 20 to 25 metres but many witnesses are spatially challenged, have difficulties estimating distances, and often are temporally challenged as well, have difficulties estimating the time it takes for things to occur. These are common human failings but it does not mean that they make the evidence untrue, implausible or unacceptable.

38. In my view this appeal is without any merit. The appeal is dismissed.

**********

Decision last updated: 13 January 2021