Brown v Fulham
[2024] ACTSC 90
•5 April 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Brown v Fulham |
Citation: | [2024] ACTSC 90 |
Hearing Date: | 27 October 2023 |
Decision Date: | 5 April 2024 |
Before: | Taylor J |
Decision: | (1) The appeal is allowed. (2) The findings of guilt in relation to CC2023/4421 and CC2023/4422 are set aside. (3) A finding of not guilty is entered in relation to CC2023/4421 and CC2023/4422. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against conviction for two charges of common assault – whether the Magistrate erred by failing to direct himself in accordance with s 89 of the Evidence Act 2011 (ACT) – whether the Magistrate erred by making factual findings not open to him – whether the appellant was denied procedural fairness – held that material legal and factual error had affected the findings of guilty – appeal allowed – findings of guilt set aside – findings of not guilty entered |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 5111(2) Evidence Act 2011 (ACT), ss 38, 89 Magistrates Court Act 1930 (ACT), ss 207, 208, 214, 218 Road Transport (General) Act 1999 (ACT), s 72 |
Cases Cited: | Alexander v Bakes [2023] ACTCA 49 Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 EE v The King [2023] NSWCCA 188 Filippou v The Queen [2015] HCA 292; 256 CLR 47 Garay v The Queen(No 3) [2023] ACTCA 2 HT v The Queen [2019] HCA 40; 269 CLR 403 Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 Lee v Lee [2019] HCA 28; 266 CLR 129 Liberato v The Queen (1985) 159 CLR 507; 59 ALJR 792 McFarlane v Van Eyle [2022] ACTCA 68 R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 R v Ralston [2020] ACTCA 47; 285 A Crim R 159 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 331 ALR 550 Tweedie v R [2015] NSWCCA 71 Warren v Coombes (1979) 142 CLR 531; 53 ALJR 293 |
Parties: | Daniel Truman Brown ( Appellant) Luke Robert Lloyd Fulham ( Respondent) |
Representation: | Counsel K Lee ( Appellant) K McCann ( Respondent) |
| Solicitors Aboriginal Legal Service ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 28 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Temby Date of Decision: 11 May 2023 Case Title: Luke Robert Lloyd Fulham v Daniel Truman Brown Court File Number: 234058 |
TAYLOR J:
Introduction
1․The appellant was charged with two charges of aggravated common assault (CC2023/4421 and CC2023/4422). After a hearing in the ACT Magistrates Court on 5 May 2023 the appellant was found guilty in relation to both charges on 11 May 2023. The offences arose out of an incident with his partner on 20 September 2022.
2․This is an appeal against the findings of guilt on the following grounds:
(i)The learned Magistrate erred by failing to direct himself that no adverse inference can be drawn from the appellant’s refusal to assist police; and by drawing an inference unfavourable to the appellant from evidence that the appellant failed or refused to answer one or more questions or to respond to a representation put by an investigating official, in contravention of s 89(1) of the Evidence Act 2011 (ACT) (the Evidence Act);
(ii)The learned Magistrate erred by making findings of facts that were not open to him;
(iii)The learned Magistrate denied the appellant procedural fairness by making findings of fact adverse to the appellant without giving the appellant an opportunity to make submissions on those findings of fact.
(iv)The findings of guilt are unreasonable or cannot be supported by having regard to the evidence.
3․The appeal is upheld for the reasons outlined below.
Background
The prosecution case
4․The alleged offending occurred on 20 September 2022. The prosecution case was that the appellant assaulted his wife, the complainant, while they were in his vehicle in the underground car park of Coles shopping centre in Manuka. The offender was alleged to have been driving the vehicle while the complainant was in the front passenger seat.
5․The assaults were particularised in the following way:
(i)CC2023/4421: the offender striking the complainant multiple times in the head with his left hand, while his right hand was on the steering wheel and then grabbing the complainant’s head with both hands and smashing it against the car window; and
(ii)CC2023/4422: hitting the complainant multiple times in the head while the car was parked.
The proceedings before the Magistrate
6․I note that throughout these reasons, for ease of reference, I will refer to the appellant’s partner at the time of incident and at the time of the Magistrates Court hearing, as the ‘complainant’. As will become clear, she was not a ‘complainant’ in the usual sense as she did not in fact ‘complain’ about any of the appellant’s conduct to police.
7․On 5 May 2023, the hearing commenced before the Magistrate. The appellant was legally represented. At the outset of the hearing by way of opening remarks, the prosecutor identified that the charges arose after the Australian Federal Police (AFP) were contacted by a member of the public, Ms Sharwood, who was in the underground car park at Coles, Manuka where the offender and his wife were in a vehicle. Ms Sharwood complained that the appellant was assaulting the complainant in the vehicle. Ms Sharwood sought the assistance of another member of the public, a Coles store manager, Mr Chohan, who attended the underground car park with Ms Sharwood.
8․The prosecution case consisted of oral evidence from Ms Sharwood, Mr Chohan, the complainant and the AFP informant, Constable Fulham. The prosecution tendered the audio recording of a triple-zero call made by Ms Sharwood at the time the assault allegedly occurred (Exhibit 1), an audiovisual recording filmed on Mr Chohan’s mobile phone by Ms Sharwood (Exhibit 2), a certificate under s 72 of the Road Transport (General) Act 1999 (ACT) confirming the registration of the red Holden Commodore in the appellant’s name (Exhibit 3), body-worn camera footage from police who attended the appellant’s home to arrest him on 20 September 2022 (Exhibit 4) and a police statement from Constable Booth (Exhibit 5). The appellant gave evidence in the Magistrates Court proceedings.
Evidence
Evidence of Ms Sharwood
9․Ms Sharwood gave evidence that on 20 September 2022 she was at the Coles in Manuka. Having finished her shopping she went into the underground car park. Ms Sharwood described hearing “yelling sounds and shrieking”. A red Holden Commodore passed her as she walked into the car park and she said she got a glimpse of the front of the car and observed that:
[T]he guy in the front was hitting the girl in the passenger seat…he kind of did a couple of swings at her and she was edging towards the window and he grabbed her head and smashed it against the window. And then I kind of stayed where I was. They drove a couple of metres down to where the kerb was before you go into the downstairs part of the car park.
10․She gave evidence the car park had very good lighting, that when the vehicle turned in front of her it was no more than a metre from her and that it was “creeping” and going “pretty slow” and that the car windows were “pretty clear” with “no apparent, like, tinting”. She observed that the man was “mostly” using his left hand to hit the woman and that his right hand was “trying to drive”. She described the action she observed the appellant engage in as more of a “swing across” than a punch. She provided a physical description of the couple, saying “they were both Caucasian, the woman had blonde straight kind of shoulder length hair. The guy had kind of like sort of like brown hair”. She was able to say that the male was wearing a light grey top and beige or khaki pants. Ms Sharwood said she observed his clothing when he exited the car in the second interaction, just before they drove off.
11․Ms Sharwood then went back into Coles and spoke to staff members, to get someone to come into the car park with her so that she was not alone. A manager, Mr Chohan went with her back to the underground car park. They went to a ramp from where she could observe the vehicle was parked. She could still hear a lot of shrieking and yelling. Ms Sharwood said:
He was hitting her multiple times, probably about 10 times in the span of a couple minutes, grabbing her hair. And then she tried to open the car door. She only got about, like, a couple of centimetres open and then he reached over and closed it. And there was more yelling and more swings to her. And then he got out of the car, walked about like a couple of metres away from the car, stopped, turned round and got back in the car.
12․She said she observed the man was alternating both hands to hit the woman and that she was leaning towards the passenger side window to try and dodge them. Ms Sharwood gave evidence she could not make out any words in the shrieking and yelling she heard.
13․In cross-examination Ms Sharwood agreed she had told police, in a record of conversation that she first saw the first interaction in the vehicle, front on, for a “split-second”. She agreed that she told the police officer the windows of the vehicle were not very clear, clarifying in evidence that they were “very lightly” foggy, though “nothing that obstructed [her] view”. She agreed she could see the colour of the woman’s hair but not what she was wearing.
14․Ms Sharwood agreed that when she observed the second interaction, she was some distance away from the vehicle though she could not judge the distance. When asked to point out in the footage where the man was hitting the woman and grabbing her hair, Ms Sharwood gave evidence that she was not able to get that part on video and she only recorded the instance where the car door opened and then slammed again. Ms Sharwood explained that she was in the car park longer than the length of the footage. When challenged that she could not have known that the man slammed the door from where she was standing, she disagreed and said she “saw him lunge over and shut the door”. When it was suggested this was an assumption, she stated:
Given that I could see he was hitting her and I could see the actual figures of their bodies and I could see him reach over from the passenger seat. Yes, that’s what I saw.
15․She agreed in cross-examination that when she said the man had to stop hitting the woman to keep driving, it was an assumption on her part. She also agreed it was “obviously” an assumption when she had said that the woman had tried to open the door and get out as she could not “go up and talk to her”. She agreed she had assumed the man locked the car when he walked away from it because the lights had flashed and she believed that to be the usual thing to happen when a vehicle is locked.
16․In response to the suggestion that the man was not hitting the woman at all and what she saw was actually arms flinging around in an argument, Ms Sharwood stated that he was definitely hitting her and she “definitely saw him hit her multiple times”. When challenged again, she gave evidence she knew “very clearly” what she saw, and she was “100 per cent sure” that in the second interaction she had seen the man hitting the woman 10 times and that it was not possible it had just been an argument where they had been flinging their arms around.
17․The Magistrate asked Ms Sharwood, at the end of cross-examination, whether she was able to see things in more detail than could be observed in the video. Ms Sharwood responded:
Yes, okay. No, that makes sense. Yes, no, that’s a very zoomed in iPhone video that obviously is very unclear. I could see a lot better from my perspective and not from the perspective of a camera. There are also events that happened before I managed to start recording which is the hitting and the pulling of the hair which obviously weren’t able to be depicted on camera.
Evidence of Mr Chohan
18․Mr Chohan gave evidence that he was working at Coles in Manuka Plaza on 20 September 2022 when Ms Sharwood approached Coles’ staff members. Mr Chohan spoke to her and she said there was a person trying to “hit” or “beat” a girl in the car park, inside a car. He went into the car park with her to a ramp near the second level of the car park, and while she was calling the police on her own phone, she used his phone to video the vehicle.
19․Mr Chohan said they were standing on the ramp about 50 – 70 metres from the car and he heard some “noise which is girl was [sic] screaming inside the car”, which he said was a red Ute. He said he was standing “just behind” a pillar. He described the screaming as “very loud”, with the car park empty so the sound of the scream was going “around in the car park”. He could not hear any words, just screaming.
20․In cross-examination he agreed that the windows of the car were “black”, meaning “tinted” and that he could not see inside the vehicle or what was happening inside the vehicle. Mr Chohan agreed he could not see what they were wearing, and that he only saw the man when he came out of the car briefly.
21․When the vehicle started to leave, Mr Chohan said he went to put some trolleys away to attempt to conceal the fact he was watching the car. He took a photo of the license plate and was two – three metres from the vehicle but stated he did not observe what they were wearing as he was “trying to hide myself fairly well that I’m just doing my trolleys, whatever”. It was only then that he was able to see that there were two people in the vehicle.
Evidence of the complainant
22․The complainant gave evidence that on 20 September 2022, at some point in the night she woke her husband up as she wanted to go to Coles to get bottled water, as they had run out.
23․As they were driving to Coles, the complainant said that she was “having a go” at the appellant, for various reasons: they had just lost their business and their home and he had not completed some relevant portions of her visa application. They ended up screaming and shouting as they were driving around the Coles car park looking for a park. They pulled up into a park and they were both screaming, and “like, waving our arms around, like, nothing – nothing else happened apart from, like, he was just banging the steering wheel and centre console”. She said she was banging her door and screaming “really loudly”. They decided not to go into Coles as she was crying. Her husband then got out of the car to go into Coles but came back and said, “let’s just go home”. They then went home, made up and cooked dinner, and then the police arrived. She denied that there were any physical interactions between them while inside the vehicle.
24․The complainant was cross-examined by the prosecutor after leave was granted by the Magistrate pursuant to s 38 of the Evidence Act. The complainant agreed:
(a)that she had sent an email in October 2022 to the prosecution describing the appellant as “my husband, my best friend, the love of my life, father to my unborn child and my birth partner”; and
(b)that she was in a relationship with the appellant and he was involved in the care of their daughter and that he was an “amazing dad”; and
(c)that she had limited support networks in Canberra apart from the appellant and his family, and a few friends; and
(d)that she was currently on a partnership visa; and
(e)that the October 2022 email stated that because she was on this visa, she was ineligible for financial support such as Centrelink; and
(f)that her financial stability was “tied up” with the appellant and his business, which she now assisted with and that they were trying to grow this business together; and
(g)that in the October 2022 email she said she had concerns for the appellant’s mental health which he had “always” struggled with; and
(h)That she was concerned about what might happen to the appellant if he was convicted, for example that he might go to jail or have some other kind of punishment.
25․When it was put to the complainant that the appellant had struck her on the head and smashed her head against the window she denied this ever happened and said he would never lay a hand on her. She said that he was banging the console and she was banging her door.
26․When it was suggested to her that she was not telling the truth as she did not want her husband to “get in trouble” she stated she was telling the truth and that she was not scared of her husband. The complainant explained that she would not be with the appellant if it had occurred, as she would not put her child in an unsafe situation.
27․The complainant said in cross-examination that she would not lie under oath for her husband as she did not want to get into trouble herself, especially now that she had a child to think about.
Evidence of Constable Fulham
28․Constable Fulham was the AFP informant allocated to the matter and various exhibits were adduced as part of his evidence.
29․In cross-examination he agreed that he was not there at the time of the arrest but was aware that the officers who attended were there for an hour or so and that they spoke to the appellant and the complainant separately. He stated he was also aware that the complainant told police that nothing had happened.
Evidence of the appellant
30․The appellant said that his wife woke him up to go to Coles to get some bottled water, and he was not happy about it as he had been in bed. He said they got in the vehicle and he drove them to Coles.
31․He stated that in the month preceding the incident they had lost their business and their house so were living in a friend’s place for free as they could not afford their own place at the time. On the way to Coles, he said his wife was arguing with him about various things, such as the fact he had not done a critical piece of paperwork to give to their immigration lawyers, for her visa. He also gave evidence the complainant was saying “you’re so fucking lazy”, “why aren’t you – why don’t you snap out of it”, “you’ve got a baby on the way”, “you need – you need to work”. He said this made him feel “pretty low”, and he “did not respond very well”. He said he was screaming at the complainant. He stated his mental health was suffering due to various recent life events.
32․In relation to the argument had in the car, the appellant said:
I was banging the window; I was banging the steering wheel; I was banging my legs. I was screaming, I was swinging – my arms were swinging everywhere mate…you know, like I exploded, she exploded – like at each other.
33․He denied ever touching or hitting the complainant at any point during the argument in the vehicle. He denied reaching over and slamming the door shut when the complainant opened the door.
34․He described being surprised when the police arrived at the residence, saying:
Like, I couldn’t understand what was happening. Like, you know, like I couldn’t believe it. I couldn’t believe it. You know, I was being torn away from my family. I got – and like, it was just – so, we’ll tell them. Like my wife had no bruises, no cuts, there was no damage. There was nothing wrong with my hands. There was nothing wrong with her and like, they wouldn’t accept my answer. They wouldn’t accept her answer. I was just saying ‘Look, tell them’. No one is listening. Like, all they wanted to do was put me in handcuffs and take me away.
35․The appellant explained that they were both exasperated, exhausted and were “throwing mud at each other, back and forth”. He said they were screaming out words and screaming with an “ah” sound during the argument, because they were both frustrated and it was a “stupid argument”. When asked specifically about whether his wife was screaming words or making a screaming sound, he said she was doing both.
36․The appellant was played the footage taken by Ms Sharwood. When asked if the screaming sound was his wife, he replied that he did not know if it was the complainant that could be heard. He said he could not be sure and he could not see her in the footage. He said he could not recall if at the time he heard any other sounds like that in the car park and was not really sure what was going on outside the car as he was focussing on what was happening inside the car.
37․He agreed that he was under financial pressure at the time as he had lost his business, and that it was a stressful situation to find himself in, especially given they were expecting a baby. He agreed that his relationship with the complainant was currently “quite good” and they had reconciled from the argument.
38․When asked what the reason was for banging the wheel and console, he said he did not know and that they were “screaming at each other. Like, your arms go everywhere when – ”. He said he was not trying to achieve anything by hitting the objects in the car. When asked about the door opening, he stated it was his wife who opened and then shut the door and that he did not try and stop her.
39․He agreed that during the argument he was “a bit wound up” due to the stress he was under. When it was suggested to him that he hit his wife multiple times in the head, he stated “that did not happen”. When it was suggested he grabbed her head and smashed it into the right passenger side window he said “That’s laughable. That is absolutely laughable”. He denied that when they drove to another level and parked that he continued to hit her and grab her head saying he “did not do anything of the sort”.
The Magistrate’s decision
40․The Magistrate reserved his decision and delivered it orally on 11 May 2023. The reasons provided by the Magistrate extend to some 20 pages of the transcript. The Magistrate carefully set out the nature of the charges including the circumstance of statutory aggravation in light of the family violence context of the alleged conduct.
41․After setting out important “preliminary matters” such as the burden and standard of proof, as well as giving himself directions consistent with R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 (Murray) and Liberato v The Queen (1985) 159 CLR 507; 59 ALJR 792 (Liberato), the Magistrate summarised the evidence presented in the prosecution case, observing in relation to Ms Sharwood:
Thirdly, Ms Sharwood was generally speaking – that is, not just in relation to her observations across the lower level car park – very clear in her evidence and very confident in her recollection of what she saw, including under cross-examination. I accept that Ms Sharwood was able to make the observations she described with respect to the incident which occurred on the lower level of the car park even though the defendant’s car was some distance away and even though it was difficult to make out from the video footage what was occurring in the car.
42․The Magistrate ultimately concluded that Ms Sharwood was “an honest and reliable witness”. Similarly the Magistrate concluded that Mr Chohan was an “honest witness” though noted that he only heard very loud screaming and said he could not see inside the vehicle. The Magistrate reconciled this with Ms Sharwood’s assertion that she could see inside the vehicle while she standing next to him, observing “the extent to which [Mr Chohan] was able to comprehensively observe all relevant matters was compromised by his desire to remain hidden from the people in the car”. Accordingly the Magistrate determined that he did not consider that “the fact that Mr Chohan was not able to observe anything inside the car undermines my conclusion that Ms Sharwood was able to do so”.
43․The Magistrate turned to the evidence of the complainant and after summarising it briefly, concluded that he was not satisfied that she was an honest and reliable witness. He found that she had “tailored” her evidence to assist the appellant. The Magistrate identified three reasons that led him to reject her evidence:
(i)the complainant was “seeking to downplay” the incident on the basis that she did not mention the car stopping in the lower level car park; and
(ii)the complainant initially denied that she or the appellant had exited the vehicle and in cross-examination said she did tell the appellant to get out of the vehicle and he did get out, but then returned to the vehicle; and
(iii)the complainant’s evidence did not account for what can be heard in the video where the passenger door of the vehicle opens and he heard the complainant cry out “help me”.
44․The Magistrate concluded that the panicked cry “help me”, was inconsistent with the complainant’s “general narrative” and specifically inconsistent with the version she gave of opening the door and then closing it herself. He found that the panicked cry was more consistent with the evidence of Ms Sharwood about the appellant pulling the door closed at the same time the complainant could be heard to cry out.
45․The Magistrate said this of the complainant:
I find that she tailored her evidence in order to suit a narrative that she thought would assist the defendant’s case. I further find her denial that that the defendant hit her and that he grabbed her head and forced it against the passenger window. and that he closed the door when she opened it, were untrue. I consider she was motivated to do what she could to assist the defendant because she had a strong personal interest in the outcome of the proceedings.
46․The Magistrate next described the body-worn camera footage that captured police attendance at the appellant’s residence. After describing police arrival, including that there was a delay in the complainant opening the door after police loudly knocked, the Magistrate records that the “footage further shows the defendant was very defensive about being asked questions”. The Magistrate went on to observe:
None of these matters point to the defendant being guilty of the offences with which he is charged but they do suggest the defendant and [the complainant], particularly the defendant was not being particularly cooperative and therefore, make me hesitant to accept at face value the statements made by the defendant and [the complainant] once the defendant was arrested, that he hadn’t done anything. Similarly I note when the defendant was arrested the defendant appeared to indicate surprise, but whether the defendant was actually surprised, I do not know.
47․The Magistrate summarises police observations of the complainant as being visibly upset with red-rimmed eyes, consistent with someone who had recently been crying.
48․The Magistrate found that the failure in the appellant’s evidence to account for the decision to drive to the lower level of the car park was suggestive of the appellant attempting to avoid providing a complete account of the incident. Ultimately the Magistrate concluded that his overall impression of the appellant was that he was not an honest and reliable witness, concluding that his view was based on the appellant’s:
[A]voidance of providing a complete account of what occurred on the lower level of the car park and his avoidance of conceding the scream on the video footage came from [the complainant]. I find the answer he provided in relation to those events were [sic] tailored in an attempt to avoid giving evidence and the defendant considered may have been contrary to his case.
49․The Magistrate found that the panicked cry where the words “help me” can be heard he was inconsistent with the appellant’s evidence that he and the complainant “just had a two-way explosive argument with no physical interaction”. The Magistrate finds:
[A]s I’ve indicated, I’m not satisfied that I can accept at face value either the defendant was surprised when he was arrested to the defendant [sic] and [the complainant] being truthful when they denied to police that the defendant had assaulted [the complainant].
50․And further on:
Given my findings in relation to the evident determination not to assist police at the time when and [the complainant] were interviewed by police at their houses I’ve indicated, I’m not satisfied that I can accept at face value the defendant’s [sic] and his protestations at the time the defendant was arrested.
51․The Magistrate concluded that the absence of evidence with respect to injuries suffered by the complainant did not create reasonable doubt about the conduct the appellant engaged in and concluded by identifying the facts upon which he was satisfied the appellant was guilty consistent with the way the prosecution had particularised each charge.
The grounds of appeal
52․The first ground of appeal contends that the Magistrate erred by failing to direct himself that no adverse inference could be drawn from the appellant’s refusal to assist police and by drawing an inference unfavourable to the appellant because of his refusal to respond to a question put by an investigating official, in contravention of s 89(1) of the Evidence Act.
53․The second ground of appeal contends that the Magistrate erred by making findings of fact that were not open to him.
54․The third ground of appeal contends that the Magistrate denied the appellant procedural fairness by making findings of fact adverse to the appellant without giving the appellant an opportunity to make submissions on those findings of fact.
55․The appellant relies on the same two factual errors in support of the second and third grounds, namely:
(i)the finding that the complainant said “help me” when she opened the passenger side door during the second interaction; and
(ii)the finding that the complainant “tailored her evidence”.
56․The final ground of appeal contends that the findings of guilt are unreasonable or cannot be supported by having regard to the evidence.
57․The appellant contends that the legal and factual errors identified at grounds one, two and three directly contributed to the findings of guilt as they relate to facts used by the Magistrate to assess and reject the evidence of the complainant and the appellant. The errors therefore directly influenced the Magistrate’s findings of guilt and accordingly, resulted in a miscarriage of justice.
Determination
The standard of review
58․The Supreme Court’s jurisdiction and conduct on appeal from the Magistrate’s Court is governed by Div 3.10.2 of the Magistrates Court Act 1930 (ACT) (the MCA) – Appeals in criminal matters (ss 208 – 219). This appeal is brought pursuant to ss 207 and 208 of the MCA and is by way of re-hearing: Alexander v Bakes [2023] ACTCA 49 (Alexander).
59․Pursuant to s 218 of the MCA the Court may:
(a)confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or
(b)give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order; or
(c)set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceeding to the Magistrates Court for further hearing and decision, subject to the directions the Supreme Court considers appropriate.
60․Pursuant to s 214 of the MCA, the Court must “have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact”. Recently in Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 (Alfred), Baker J usefully outlined the development of authority in relation to the standard of review to be applied to a conviction appeal under s 208 of the MCA. I need not traverse those matters here except to note, as her Honour does at [38], that the Court of Appeal resolved the standard to be applied in Alexander at [18], clarifying and confirming that:
…[A]n appellant may succeed in an appeal under s 214 of the MCA by demonstrating that the magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed. Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision.
61․Justice Baker goes on in Alfred to usefully collate at [40], further observations from Alexander that I bear in mind when assessing whether there is a material legal, factual or discretionary error in the Magistrate’s decision:
(i) The onus is on the appellant to demonstrate that there is error in the Magistrate’s decision: Alexander v Bakes at [22], citing Allesch v Maunz [2000] HCA 40; 203 CLR 172 at 180; [23] and Lukatela v Birch [2008] ACTSC 99; 223 FLR 1 at [19].
(ii) It is incumbent on the appellant to identify the alleged error in the Magistrate’s decision in their grounds of appeal: Alexander v Bakes at [22], citing Carroll v The Queen [2009] HCA 13; 254 CLR 259 at [8]; R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [127].
(iii) The appellate court must observe the ‘natural limitations’ of proceeding on the record, noting the disadvantages of an appellate court in comparison to the trial judge, both in evaluating witness credibility, and in being deprived of the “feeling” of a case: Alexander v Bakes at [20], citing Fox v Percy at 125 [23]. See also Garay v The Queen (No 3) [2023] ACTCA 2 at [31].
(iv) Where an appellant identifies the ground of appeal as being that the verdict is unreasonable, the Court will proceed on the basis that the appellant challenges the Magistrate’s ultimate factual finding: at [23]. Where an appellant wishes to challenge an intermediate finding, such a challenge should be pleaded as a specific ground of appeal: Alexander v Bakes at [23].
62․In Alexander the Court of Appeal was careful to observe that consideration of error in a Magistrate’s decision must take account of the pressures of the Magistrates Court (at [21]) and that an appeal by way of rehearing requires an appellate court to conduct a “real review of the evidence given at first instance and the judge’s reasons for judgment and while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion”: at [13], citing Warren v Coombes (1979) 142 CLR 531; 53 ALJR 293 at 551, reinforced by the High Court in Lee v Lee [2019] HCA 28; 266 CLR 129 at 148-149; [55]-[56].
63․I bear in mind the advantage that the Magistrate had in the environment of the hearing given the nature of the case, in particular when assessing the credibility of all the witnesses, heeding the observation of McCallum CJ in Garay v The Queen(No 3) [2023] ACTCA 2 at [31]:
Whatever differences exist between trial by jury and trial by judge alone, the advantage of being immersed in the atmosphere of the trial is one thing they undoubtedly have in common; an advantage not shared by the appellate court. The assessment of credibility involves more than a lawyerly analysis of the words on the page of a transcript. The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness.
64․There was no fresh evidence presented on the appeal. During the course of the hearing of the appeal the appellant, without objection, played a portion of the footage captured by Ms Sharwood and the body-worn camera footage taken by police, in order to seek to demonstrate some of the submissions made about the evidence.
Leave to amend the notice of appeal
65․A notice of appeal was filed on 17 May 2023. It did not properly particularise the grounds of the appeal. An amended notice of appeal was filed on 19 October 2023. In the amended notice of appeal the grounds of appeal were identified as they appear above at [2]. While initially opposing leave in relation to ground one, ultimately the respondent did not oppose a grant of leave. Leave is granted to the appellant pursuant to r 5111(2) of the Court Procedures Rules 2006 (ACT) (the CPRs) to rely on the amended notice of appeal filed on 19 October 2023.
Grounds of appeal
Ground one: the Magistrate erred by failing to direct himself that no adverse inference could be drawn from the appellant’s refusal to assist police and by drawing an inference unfavourable to the appellant because the appellant failed to respond to a question put by an investigating official, in contravention of s 89(1) of the Evidence Act
66․Respectfully, the Magistrate was in error when he failed to direct himself that no unfavourable inference could be drawn from the appellant’s failure to respond to a question put by an investigating official. This failure was in contravention of s 89(1) of the Evidence Act. For the following reasons, the appellant succeeds with respect to this ground.
67․The Magistrate did not specifically direct himself in relation to the right to remain silent nor did he direct himself that the appellant was under no obligation to ‘assist’ investigating police. The first part of this ground of appeal, namely that the Magistrate erred by failing to direct himself “that no adverse inference could be drawn from the appellant’s refusal to assist police” seeks to capture those failings in so far as they relate to the specific complaint under s 89 of the Evidence Act. The parties approached the appeal hearing on that basis.
68․As will become clear the broad crafting of the first part of this ground of appeal is of no real moment, as I am satisfied that the specific error as to s 89 of the Evidence Act has been established. I am satisfied that the error is established in circumstances where the Magistrate also failed to direct himself that the appellant was under no obligation to assist police.
69․Section 89(1) of the Evidence Act provides:
89 Evidence of silence
(1)In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or someone else failed—
(a)to answer 1 or more questions; or
(b)to respond to a representation;
(c)put or made to the party or other person by an investigating official who at the time was exercising functions in connection with the investigation of the commission, or possible commission, of an offence.
Note Fail includes refuse (see Legislation Act, dict, pt 1).
(2)Evidence of that kind is not admissible if it can only be used to draw an inference mentioned in subsection (1).
(3)Subsection (1) does not prevent use of the evidence to prove that the party or other person failed to answer the question or to respond to the representation if the failure is a fact in issue in the proceeding.
(4)In this section:
inference includes the following:
(a)an inference of consciousness of guilt;
(b)an inference relevant to a party’s credibility.
70․The appellant’s interaction with police when they arrived at his residence was almost entirely captured on the body-worn camera footage, including the moment and immediate aftermath of the appellant’s arrest. In the body-worn camera footage the appellant engages with police by answering some of the questions they ask of him but does not answer a specific question about the timing of their trip to Coles. In this sense he is both exercising his right to silence and freely volunteering information to investigating officials.
71․In his reasons, the Magistrate deals with a “delay” in answering the front door when police knocked on it. The body-worn camera footage captured that the front door of the residence was almost entirely glass. A television can be seen on in the room immediately to the left of the front door. For the period police are out the front waiting for the door to be answered no one can be observed in the visible front foyer, hallway or part of the kitchen. There is around 42 seconds between the first and the second knock on the front door. A further 18 seconds elapses before police knock on the lounge room window and at that point announce themselves as police and ask the complainant to answer the door. The complainant promptly opens the door. She appears to be wearing a dressing gown and she lets police into the residence. After some initial exchanges the appellant and the complainant both tell police that they want to remain together when a request is made for them to separate for a “chat” with police. The appellant can be heard to say, “I would like to stay with my wife please”, followed by the complainant who says, “I’d like to stay with my husband”.
72․The appellant's interaction with police once they were permitted entry is described by the Magistrate as follows:
The footage further shows the defendant was very defensive about being asked questions. The defendant and [the complainant] confirmed they had been at Coles, but the defendant refused to answer the question that was asked as to what time he and [the complainant] went to Coles. When advised of the allegation of assault, the defendant said he and [the complainant] are fine. He asked [the complainant] if she was fine. She confirmed she was. None of these matters point to the defendant being guilty of the offences with which he was charged but they do suggest the defendant and [the complainant], particularly the defendant, was not being particularly cooperative, and therefore, make me hesitant to accept at face value the statements made by the defendant and [the complainant], once the defendant was arrested, that he hadn’t done anything. Similarly, I note when the defendant was arrested, the defendant appeared to indicate surprise, but whether the defendant was actually surprised, I do not know.
73․Further on, as extracted in part above at [50], the Magistrate finds:
Given my findings in relation to the credibility of [the complainant] and the defendant, and given the defendant’s evident determination not to assist police at the time when he and [the complainant] were interviewed by police at their house, I’m not satisfied that I can accept at face value the defendant’s [sic] and his protestations at the time the defendant was arrested. The defendant had not done anything wrong, nor can I infer from the apparent surprise on the defendant’s face, that he had not hit [the complainant].
74․The appellant points to these particular extracts from the Magistrate’s reasons as revealing the complaint he asserts under this ground of appeal. That is, the drawing of an adverse inference against him in contravention s 89 of the Evidence Act. Respectfully, it is difficult to see it any other way. The Magistrate described the defendant as not being “particularly cooperative” and as having “evident determination not to assist police” with the refusal to reveal the timing of the Coles trip specifically identified as conduct in support of those views.
75․While clearly unhappy with police attendance at his home (perhaps unsurprising in the context of the circumstances and timing of their arrival) and clear in his desire to remain with the complainant, it is not clear from the body-worn camera footage in what material respect the appellant was ‘uncooperative’ or determined not to assist police. He provides police with information. He is not aggressive or even what might be considered disrespectful. The appellant initially asks, not unreasonably, “may I ask what this about please?”.
76․It is useful to set out the exchange where the appellant is directly asked about the timing of their trip to Coles. It occurs after police enter the residence and the appellant and his wife both indicate to police they want to stay together:
Police: Where have you been tonight?
Complainant: We’ve just been to Coles
Appellant: We’ve just been to Coles
Police: What time was that?
The appellant: Why? Why? Why?
Police: Because we’ve just had an offence happen down there and we are making enquiries in relation to an assault.
The appellant: What?
Police: A vehicle matching your description was seen in that area. What time were you there?
Appellant: Hang on, no, no, no, please I don’t like this. My wife and I are fine. [Wife’s name] are you ok?
Complainant: Yes.
77․Not long after this exchange the appellant says to police “Please leave. I would like you please to leave”. Once police move to formally arrest him, the appellant and the complainant immediately verbally protest to the effect that the appellant “hasn’t done anything”. The appellant asks police to “please” remove the handcuffs they apply to him, saying “What is going on?”. The appellant presents as very upset, perhaps even crying when he says to police “The evidence is wrong. What is going on? I haven’t assaulted my wife. I love my wife”. Despite his protestations he is cooperative with his physical arrest. I accept that the request to remain together could be viewed as ‘uncooperative’, police having asked them to separate. It is difficult to see how the delay in answering the front door in the circumstances revealed by the body-worn camera footage is demonstrative of the appellant’s lack of cooperation. The only other conduct demonstrating a lack of cooperation was the failure to answer the question as to the timing of the Coles trip.
78․The Magistrate, while reminding himself that the delay in answering the door, asking to remain together and failing to answer the question about the timing of the Coles trip did not point to the appellant being “guilty”, goes on to include those factors as demonstrative of a lack of cooperation. It is clear from the Magistrate’s reasons that this significantly influenced his assessment that the denials made by the appellant (and indeed, the complainant) could not be accepted “at face value”.
79․During the course of the hearing in the Magistrates Court the prosecutor made no submissions targeting the appellant’s refusal to answer police enquiries about the timing of their Coles visit or indeed about the body-worn footage more generally. Defence counsel sought to rely on the body-worn camera footage only to demonstrate the appellant’s “surprised” presentation when police arrived and in particular once they made clear their intention to arrest him for assault. This surprise was submitted to be entirely consistent with his (and the complainant’s) version of events that no assault had taken place.
80․There was no allowance made by the Magistrate in assessing the appellant’s “evident determination not to assist” for the unexpected arrival of police at the appellant’s home late in the evening in circumstances where neither he, nor his wife, had sought police attendance. There was no reference by the Magistrate to the cooperative approach taken by the appellant to the entry of police into his home, immediately offering that they had been to Coles and to his physical arrest. In my view, the Magistrate approached what he considered to be the appellant’s lack of cooperation (including, critically, the failure to answer the question), as only operating to undermine the appellant’s credibility, without considering the alternative view of the appellant’s conduct consistent with no assault having taken place. This approach was adopted where there was no direction about the appellant not having any obligation to assist police. In any event, s 89 of the Evidence Act provided protection against adverse use of the failure to answer a question from police.
81․The respondent accepted that the Magistrate relied on the appellant’s refusal or failure to answer the question as to the timing of the Coles trip. Nonetheless the respondent submitted that the appellant was not exercising his right to silence nor failing to respond to a representation in doing so. In those circumstances the respondent asserts that s 89 of the Evidence Act had no application. I disagree.
82․It is uncontroversial that the Magistrate was entitled to scrutinise what the appellant did say and do in his interaction with police as part of assessing the credibility or authenticity of the appellant’s denials. That acknowledgement does not entirely grapple with the approach taken by the Magistrate to scrutinising the appellant’s conduct that saw an adverse inference drawn against the appellant for his “evident determination not to assist” (including the failure to answer a question).
83․The appellant was entitled to selectively respond to police questions. His failure to answer the question invoked the protection against adverse use in s 89 of the Evidence Act. If it was not a failure to respond to a representation (s 89(1)(b)) then it was certainly, in my view, a failure to answer a question (s 89(1)(a)) in the circumstances contemplated by s 89(1)(c). Section 89 does not draw distinction between an accused who remains entirely silent in the face of questioning from investigating officials and an accused who selectively answers questions or responds to representations. A failure to answer one or more questions is sufficient to invoke the protection contained in s 89 of the Evidence Act as to the use that can be made of that evidence.
84․I am satisfied s 89 of the Evidence Act did have application. It prohibited reliance on the appellant’s failure to answer the question as to the timing of the Coles trip to draw an unfavourable inference about his credibility. The Magistrate’s inclusion of the appellant’s refusal to answer the question as part of his “evident determination not to assist” led to a rejection of the appellant’s denials at the scene of his arrest and was inextricably linked to the adverse assessment made of the appellant’s credibility generally. That adverse assessment was the foundation of the Magistrate’s finding that the evidence he gave in the proceedings ought to be rejected.
85․It is true to say that neither prosecution nor defence counsel raised s 89 of the Evidence Act as part of the matters they drew to the Magistrate’s attention during their closing submissions. It may be that a reference by counsel in their closing addresses was the safer approach, but as the respondent conceded, there was no real basis to do so, where the prosecution had not relied on any of the conduct or words of the appellant in the body-worn camera footage as part of the case against him.
86․I am satisfied that error has been demonstrated by the Magistrate’s failure to direct himself that the appellant was not obliged to assist police. I am satisfied that the Magistrate went on to draw an unfavourable inference as to the appellant’s credit arising from his failure to respond to a question. I am this is contrary to s 89 of the Evidence Act. In my view, this was a material legal error. It was an error that influenced the Magistrate’s view of the appellant’s credibility and whether his evidence could be accepted, the rejection of which directly contributed to the ultimate findings of guilt.
87․The appellant succeeds with respect to this ground.
Grounds two and three – errors of fact and denial of procedural fairness
88․It is convenient to consider grounds two and three together as the factual errors relied upon are common to both grounds. The appellant contends that the errors of fact were made and additionally, that he was denied procedural fairness in relation to those factual findings. The appellant contends that the erroneous factual findings (either by themselves or in combination), their influence on the ultimate findings of guilt and the denial of procedural fairness, amount to a miscarriage of justice.
89․The respondent approached grounds two and three as having limited utility in circumstances where the appellant was also asserting the finding of guilt was unreasonable, citing Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou) per Gageler J (as his Honour then was) at 77; [88] and EE v R [2023] NSWCCA 188 per Beech-Jones CJ at CL (as his Honour then was, Adamson JA and Ierace J agreeing). This was not on the basis that factual error could not ever amount to a miscarriage of justice, but that in this instance even if established, they did not amount to such, and ground four requires the Court to make its own assessment on the entirety of the evidence in any event.
90․The appellant sought to distinguish grounds two and three from asserting “mere error of fact” and advanced a characterisation of the factual errors and the denial of procedural fairness, as errors “going to the trial process” that directly contributed to the findings of guilt.
91․I have approached this appeal consistent with Alexander. This appeal was argued prior to the Court of Appeal’s decision in Alexander where, as I have already identified, the Court affirmed that it is sufficient for an appellant to demonstrate a material legal, factual or discretionary error in order to succeed: at [18]. It is not necessary for the appellant to establish a ground “pitched” at the level of an unreasonable finding in order to succeed for an appeal in the Territory pursuant to s 214 of the MCA: Alexander at [17].
92․The errors relied upon as the foundation of both grounds are:
(i)the “help me” finding; and
(ii)the “tailored evidence” finding.
93․For the reasons that follow, the appellant has established material factual error and a denial of procedural fairness with respect to error (i). I do not consider that the factual error alleged or the complaint about a denial of procedural fairness at (ii) has been made out.
94․Arising from the ‘utility’ argument, the respondent preferred to address the asserted factual errors as part of the response to ground four of the appeal. As will become clear, I do not intend to consider ground four and I have taken those matters raised by the respondent about the asserted factual errors into account when considering grounds two and three.
(i) The “help me” me finding
95․The prosecution did not ever particularise that the complainant called out “help me” when she opened the door of the vehicle in the Coles car park. Mr Chohan described hearing the woman screaming in the car saying, “I can’t say we heard any words. She was just, like screaming, like, she was very loud”. Similarly, Ms Sharwood described hearing “shrieking” and “yelling” and she could not make out any words. The prosecutor did not suggest any specific words were used, either in opening or closing submissions.
96․The Magistrate found, on listening to the footage during the period he reserved his decision, that the complainant specifically cried out “help me”. This finding was identified as the third reason underpinning his finding that the complainant was not an honest and reliable witness, the Magistrate stating:
The third is the video footage taken by Ms Sharwood. Demonstrates that when [the complainant] opened the passenger door she yelled out a panicked cry. It was not a scream in the nature of someone yelling at another person during an argument. Indeed, I could hear [the complainant] cry out “help me”.
97․He went on:
The panicked cry is inconsistent with [the complainant’s] general narrative of events that she and the defendant just yelled at each other with no physical interactions and is specifically inconsistent with her evidence that she opened the door but then decided to close it herself. It is inconsistent with the observation that Ms Sharwood gave to Police Emergency that [the complainant] opened the door and the defendant pulled it closed at the same time that [the complainant] can be heard screaming in the background.
98․The finding was relied upon to reject the evidence of the complainant. It was also relied upon to reject the evidence of the appellant:
Relatedly as I noted in relation to [the complainant’s] evidence, the video footage taken by Ms Sharwood demonstrates when [the complainant] opened the passenger door, she yelled out a panicked cry which heard to contain the words “help me”. The panicked cry is inconsistent with the defendant’s evidence that he and [the complainant] just had a two way explosive argument with no physical interaction.
99․The Magistrate refers to the “help me” finding again as part of the factual findings he makes, stating:
Further [the complainant] was seeking to exit the car and the defendant prevented her from doing so. At the time [the complainant] opened her door, she screamed out a panicked cry. She said, “help me”. [the complainant] cried out for help and told the defendant to stop on several occasions.
100․I observe here that the reference to the complainant telling the appellant to “stop” appears to come from the triple-zero call made by Ms Sharwood. It was not ever put to the complainant during her evidence that she told the appellant to stop on several occasions during the incident. There is no complaint made about that aspect of the Magistrate’s findings.
101․The “help me” finding, while intermediate, was nonetheless a material fact that directly contributed to the Magistrate’s determination that he could not accept the evidence of the complainant or of the appellant. The rejection of their evidence was critical to the ultimate findings of guilt. The finding that the words “help me” were used in combination with the “panicked” nature of the words, was significant in the context of the Magistrate’s rejection of the complainant and the appellant’s narratives that they were engaging only in a verbal, albeit heated, argument.
102․Given that the prosecution case did not ever rely upon those words being used by the complainant, the appellant submits it was not open to the Magistrate on the evidence to find that the complainant said the words “help me”. It is significant in my view that the Magistrate did not have the benefit of any evidence from the complainant about the use of those specific words, as it was not ever suggested to the complainant that she said or screamed the words “help me”. Unlike Ms Sharwood, Mr Chohan and the appellant, she was not played the footage and asked to orient her version of events by reference to it.
103․The prosecutor, in closing submissions, suggested that the screaming heard from the vehicle was “a shriek or a cry for help, out of desperation or out of being in a situation of danger”, though did not submit that the words “help me” were used. Despite being granted leave to cross-examine the complainant pursuant to s 38 of the Evidence Act the prosecutor did not suggest at all, even generally, to the complainant that she cried, screamed or yelled out because she was desperate or in danger. The complainant was not ever asked to comment on the nature, tone or purpose of any screaming or yelling that she might have engaged in during the incident. The complainant said:
We were arguing like both of us were, like, screaming, like waving our arms around, like nothing – nothing else happened apart from, like, he was just banging the steering wheel and centre console. I was banging, like, the – my door and things, I was screaming, like, really loudly. I probably shouldn’t have been screaming as loudly as I should and neither should he. And we both like, understand that. But that’s, basically what happened. The we went home. We decided not to go into the – into Coles to buy water because I was crying. We were both like, let’s just go home and sort this out. As we were going home we were like a bit calmer. We got home, we made up, we cooked dinner and then the police turned up.
104․Counsel for the appellant submitted to the Magistrate in his closing address that neither the complainant nor the appellant “shied away from the fact that they – it [the argument] was intense, that they were screaming, they were yelling, they were gesticulating”. Counsel described the appellant as “very forthright” in offering that he was “thumping the steering wheel, thumping the console”, highlighting that the complainant said that she was exasperated and “throwing her arms around as well” before concluding “to suggest that the only inference is that that scream was someone who was in fear of being assaulted is just not available on the evidence”.
105․It is uncontroversial to observe that the Magistrate was entitled to draw his own reasonable inferences from the evidence, determine whether to accept or reject evidence and determine the weight to place on the evidence before him. In the circumstances of the “help me” finding, the appellant contends he was not given the opportunity to meet the finding. The Magistrate, having reserved to consider his decision and then determined that he could hear the words “help me”, could have provided the parties with the opportunity to make submissions about the “help me” finding. That opportunity was not provided.
Denial of procedural fairness?
106․The appellant points to the failure to provide an opportunity to be heard on the finding as one aspect of the way in which he was denied procedural fairness. The second aspect of the denial of procedural fairness is said to be the failure for the finding to be put to the complainant where it was relied upon as a basis to reject her evidence.
107․In HT v The Queen [2019] HCA 40; 269 CLR 403 at 416-417; [17]-[18] per Kiefel CJ, Bell and Keane JJ, the High Court explained the obligation to accord procedural fairness in this way (footnotes omitted):
17. It is a fundamental principle of our system of justice that all courts, whether superior or inferior, are obliged to accord procedural fairness to parties to a proceeding. This obligation requires not only that courts be open and judges impartial but that the person against whom a claim or charge is made be given a reasonable opportunity of being heard, which is to say appearing and presenting his or her case. In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made .
18. Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept; rather, it is essentially practical. The concern of the law is the avoidance of practical injustice.
108․The respondent asserted there was no denial of procedural fairness that gave rise to practical injustice, citing Landmark Roofing Pty Ltd v Safe Work NSW [2021] NSWCCA 95 (Landmark Roofing) at [51] per Cavanagh J (Gleeson JA and Garling J agreeing). The respondent described the appellant’s complaint about procedural fairness as having “an air of unreality” for three reasons that can be summarised as follows:
(i)Judicial proceedings cannot be conducted in such a fashion as to require the Magistrate to afford a party the opportunity to be heard on each possible intermediate finding that might be contemplated: Tweedie v R [2015] NSWCCA 71 at [12], adopted in Landmark Roofing at [58].
(ii)The Magistrate was entitled to act on the evidence before him in exercising his judicial function. As part of discharging this function the Magistrate was not prohibited from making findings because they had not been the subject of specific submission or challenge by one of the parties.
(iii)The appellant’s lawyer made forensic decisions about the conduct of the trial. The prosecution case from the outset relied upon the complainant screaming and yelling because she was being assaulted by the appellant. The appellant’s representative did not cross-examine Ms Sharwood about the contents of the triple-zero call she made to police in so far as she purported to describe the nature of the complainant’s screams.
109․There is, I think, distinctions to be drawn in the circumstances of this case in terms of the application of those factors.
110․First, in this case the intermediate fact was not ever identified as a possibility on the evidence before the Magistrate and so was not the subject of submission or challenge. Unlike the procedural fairness ground in Landmark Roofing, this was not the tribunal of fact resolving an apparent conflict in the evidence of two witnesses in order to make a finding of fact (see Landmark Roofing at [53]-[54]). This was the tribunal of fact making a specific factual finding about which no witness had given evidence.
111․Second, the particular circumstances of this case, there being no complaint from the complainant, meant that the “help me” finding was a particularly significant intermediate finding. The reasons of the Magistrate demonstrate that the finding elevated a panicked cry consistent with a heated, emotional argument to a cry that unequivocally supported an assault occurring.
112․Third, the significance of the finding to the rejection of the complainant’s version, in my view, underscores the significance of the failure to provide the complainant with the opportunity to comment on her screaming. It is not only that the complainant was not asked about the specific words “help me”, but also that she was not asked anything about the screaming at all, including the tone of it or by reference to the representations contained in the triple-zero call from Ms Sharwood that the complainant was “yelling and saying stop” and “you could hear her like, cries for help and telling him to stop”. In circumstances where Ms Sharwood, Mr Chohan and the appellant were all shown the footage during the course of giving their evidence, for reasons unexplained, the complainant was not.
113․The reliance by the prosecution on the complainant’s screaming generally as indicative of an assault occurring makes the absence of any questions during the prosecutor’s cross-examination of the complainant, inexplicable. Evidence from the complainant had the potential to directly influence the “help me” finding whether providing justification or context for the specific words heard or challenging their use at all. Ms Sharwood’s evidence was only ever her own interpretation of the nature and tone of the scream. The appellant was entitled to approach the case on the basis that no words were ever particularised and that the versions of both the appellant and the complainant accounted for screaming to be heard. The Magistrate’s finding was not just that a panicked cry could be heard, but that the words used lent strength, not just to ‘panic’ but to the complainant being assaulted. The words identified made it less likely that the complainant and the appellant were being truthful when they said that no assault took place.
114․Finally, the appellant’s lawyer did not cross-examine Ms Sharwood about those specific representations, instead focussing on her ability to observe and hear the incident and assumptions made in her account. This is in circumstances where the appellant and complainant’s evidence accounted for an explosive argument that saw them both screaming loudly at one another. The forensic decisions made were not made in the face of the “help me” finding.
Conclusion on the “help me” finding
115․In my view, the state of the evidence before the Magistrate about the screaming and yelling as discussed above, did not provide a basis for the “help me” finding to be made. That finding was not open on the evidence. The erroneous factual finding directly contributed to the rejection of the complainant and appellant’s versions of events.
116․Procedural fairness, where the prosecution case did not ever include that the complainant screamed out “help me” and where she was not given the opportunity to give evidence about it, demanded that the appellant be given the opportunity to address the finding. The absence of opportunity for the appellant to make representations on the finding is the kind of practical injustice the law is concerned to avoid: per Gleeson CJ at 13-14; [37] in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1.
117․A material factual error has therefore been established. So too, a denial of procedural fairness in relation to the finding. The appellant succeeds with respect to factual error (i).
(ii) The “tailored evidence” finding
118․The Magistrate found that the complainant “tailored her evidence in order to suit a narrative that she thought would assist the defendant’s case” and that the evidence of the complainant and the appellant about what happened in the car “was tailored in order to avoid or minimise the prospect of the defendant being found guilty of the offences with which he was charged”.
119․There was no evidence that the complainant knew the detail of the allegations or the evidence that made up the prosecution case. Further the appellant points out that it was never suggested to the complainant that she had “tailored” her evidence to favour a particular outcome or that she had colluded with the appellant regarding the evidence they would give. In support of this the appellant highlights that upon police arrival at the residence on the night of the incident there appears to have been no opportunity for the complainant and the appellant to ‘get their stories straight’ and when the complainant was separated from the appellant after he was arrested she told Sergeant Booth that nothing had happened, though did report that there had been an argument between them.
120․The appellant sought to draw a careful distinction between evidence that is untruthful and evidence that is purposefully “tailored” that is, designed to align with a particular narrative or to answer a version of events on the prosecution case. While I accept there may be cases where such a distinction can be drawn, in this instance, I am not satisfied it has any substantive application.
121․While it was suggested to the complainant that she was being untruthful about what happened in the Coles car park because she did not want the appellant to get into trouble it was not specifically put to her that she was “tailoring” her evidence to align with the evidence of the appellant or to account for the version of events from Ms Sharwood. Indeed, there was no evidence that the complainant was aware of the version of events given by Ms Sharwood. The prosecution in closing submissions described the complainant as “clearly invested in the outcome” and stated, “there is a real clear reason that has been put before the court as to why she would be withholding from telling the truth in today’s proceedings”.
122․In determining that the complainant had “tailored” her evidence to a narrative that would assist the appellant, it does appear perhaps because of the structure of his reasons, that the Magistrate relied only on his assessment of the “strong personal interest the complainant had in the outcome of the proceedings”:
I consider she was motivated to do what she could to assist the defendant because she has a strong personal interest in the outcome of the proceedings. In this respect I note that [the complainant] sent an email to the prosecution in October, seeking to influence the prosecution in the matter by describing the importance of the defendant to [the complainant], for example, as the love of her life, as the father of her then unborn child. [The complainant] has subsequently given birth to her child and gave evidence the defendant is an amazing dad. [The complainant] gave evidence that she is from the UK and has limited-ish [sic] support network in Australia, consisting of the defendant’s family, a few friends and the defendant.
123․The prosecutor as part of the cross-examination of the complainant produced an email sent by the complainant to the ACT Office of the Director of Public Prosecutions in October 2022. The complainant readily agreed she was the author of the email and that in it she described the appellant as “the love of her life” and her source of financial support.
124․The prosecutor finalised cross-examination of the complainant by putting propositions to the complainant consistent with the version of events provided by Ms Sharwood. The complainant unequivocally rejected those propositions. Defence counsel asked “but would you lie under oath for your husband? Would you lie to the court for your husband?”. The complainant responded:
No. No I wouldn’t because that would put me in jeopardy also of getting into trouble and I’ve got a daughter now to think about so, yes.
125․There was no evidence that the complainant had any knowledge of the nature and extent of the evidence to be presented by the prosecution in order to establish that she was assaulted. The prospect of the complainant “getting into trouble” if the prosecution case demonstrated her evidence to be deliberately false, was not excluded as a reasonable possibility in her mind.
126․Returning to the email the complainant agreed she authored, the Magistrate referred to it as seeking to “influence” the prosecution. There was no evidence at all about the purpose of the email. It was not suggested to the complainant that the email was an attempt to have the charges against the appellant withdrawn, or an attempt to avoid participating in the proceedings. Indeed the prosecutor, in the absence of the complainant, told the Magistrate the email had been tendered as part of bail proceedings though that was not clarified with the complainant nor was she asked why she had sent the email.
127․The Magistrate used the email to lend support to his view that the complainant had a strong personal investment and that her evidence was “tailored”. The Magistrate approached the email as being an attempt to influence, consistent with her giving a false account. Of course, an attempt to “influence” a prosecution might be entirely justified if, as the complainant asserted, she had not been assaulted by the appellant and she was concerned that the appellant would be wrongly convicted.
128․Further, whether the appellant had assaulted the complainant or not, it was not unreasonable that she might be genuinely concerned about the appellant being exposed to some punishment arising from the proceedings. They remained in a romantic relationship, he was the father of her child, she was relatively socially isolated and remained financially dependent on the appellant – matters she readily accepted. Indeed it may have been quite strange in the face of those circumstances, had the complainant been equivocal or nonchalant about the prospect that the appellant “might go to jail or have any other adverse punishment if it was necessary”. Given that the complainant consistently maintained that no assault occurred, she might be especially concerned about the appellant being punished for something he did not do.
129․This was not a case where the complainant had complained of an assault and then recanted. The complainant, from the time of police interaction, maintained that no assault took place. A strong personal investment in the outcome in those circumstances, where the purpose of the October 2022 email was unknown, did not provide a sound basis upon which to determine that she had “tailored” her evidence.
130․All of that said, when the reasons of the Magistrate are read as a whole, it is clear in my view that he is not invoking “tailored” as a term of art consistent with the careful distinction the appellant sought to draw nor solely based entirely on his assessment of her “strong personal investment”.
131․In my view, the Magistrate, when using the term “tailored” was referring to the overall effect of the complainant’s evidence being generally helpful to the position of the appellant. I do not consider, on a reading of the entirety of the Magistrate’s reasons, that he was intending to convey a more sophisticated or sinister finding such as the complainant deliberately crafting her evidence having colluded with the appellant to mislead the Court or in answer to the detail of the evidence of Ms Sharwood.
132․In characterising the evidence as “tailored” the Magistrate was simply articulating his view that the complainant was not being honest when she said the appellant did not assault her. On any view this was a version that “assisted” the appellant. It was squarely put to the complainant that she was not being truthful and she rejected that proposition. In the sense in which I consider it was invoked, the Magistrate was entitled to form the view that the complainant’s evidence was “tailored” to assist the appellant. It follows, in light of the nature of prosecutor’s cross-examination of the complainant, that the appellant was not denied procedural fairness with respect to the finding.
133․With respect to factual error (ii), grounds two and three have not been established.
Consequences of success on ground one and partial success on grounds two and three
134․I am satisfied that the errors established under grounds one, two and three were material to the finding of guilt in the sense that they “might reasonably have affected the ultimate finding of guilt”: Filippou at 76; [85] (per Gageler J as his Honour then was). The basis upon which the Magistrate rejected the evidence of the appellant and the complainant, a necessary step in order to find the appellant guilty, was infected by material legal and factual error. In my view this resulted in a departure from trial according to law. The appellant’s success with respect to ground one, and partial success with respect to grounds two and three being sufficient grounds to enliven the intervention of this Court, it is unnecessary in my view, to go on to consider the final ground. However, it does not necessarily follow that the appellant is entitled to an acquittal.
135․The appellant sought orders allowing the appeal, setting aside the findings and replacing them with findings of not guilty, or alternatively that the matter be remitted for further re-hearing (differently constituted, according to law). The respondent contended that notwithstanding any error that might be established, this Court upon reviewing the evidence and paying regard to the advantages of the Magistrate on seeing and hearing the evidence, would dismiss the appeal. Section 218(1)(b) of the MCA empowers the Court to give the judgment, or make the order that it considers appropriate in all the circumstances.
136․Having concluded that the Magistrate fell into material legal and factual error, and this being a re-hearing, I am required to conduct a “real review, make [my] own findings and to formulate [my] own reasoning based on those findings”: Alfred at [39] citing Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 at [43].
137․As Kennett J observed in McFarlane v Van Eyle [2022] ACTCA 68 at [101], “it is preferable for this Court, where it can properly and efficiently do so, to make orders that dispose of a case rather than remitting it for further hearing”. In effect, this is the position adopted by the parties in this matter. The respondent did not seek the opportunity, if error were to be established, to rely on the impugned factual finding. I consider that I can properly assess the case on the record before me and it was not suggested otherwise.
138․Of course, I do so without falling into the same error I am satisfied attended to the Magistrate’s ultimate findings. As part of the consideration of the case, the matters raised by the parties in relation to the evidence under ground four will be necessarily addressed.
The case against the appellant: has guilt been established beyond reasonable doubt?
Directions
139․In considering whether the appellant’s guilt has been established beyond reasonable doubt I have directed myself in accordance with the onus and standard of proof, resting as it does at all times with the prosecution and requiring proof beyond reasonable doubt. The appellant gave evidence in the proceedings, and I am entitled to scrutinise that evidence in the same way as all the other evidence. I remind myself that in giving evidence the appellant did not assume any obligation to prove anything.
140․The appellant had a right to remain silent in the face of questions from investigating officials and had no obligation to assist investigating police. I direct myself in accordance with s 89(1) of the Evidence Act. I direct myself, as the Magistrate did, in accordance with Liberato. Like the Magistrate, it is for me to determine the evidence upon which I can rely. I can determine to accept parts of the evidence of a witness and reject other parts of their evidence. The prosecution case rests almost entirely on the evidence of Ms Sharwood. Accordingly, and consistent with Murray, I direct myself that I must be satisfied beyond reasonable doubt that she is both an honest and a reliable witness before I can find the appellant guilty.
The evidence of Mr Chohan
141․Mr Chohan came to stand with Ms Sharwood “behind the pillar” later clarifying in cross-examination that he was “just behind the pillar. I just don’t want to be – I was with the uniform, with my work uniform”. Unlike Ms Sharwood, who was less certain of distances, Mr Chohan said they were “definitely 50 to 70 metres” from the vehicle. He said he could not see into the vehicle from where he was standing with Ms Sharwood. He said it was not until the car was about “maybe two or three metres” from him that he was able to see the two people in the vehicle. It is significant in my view that Mr Chohan was unequivocal that he could not see inside the vehicle from where he was standing with Ms Sharwood to make any observations of the occupants, because the windows were “black”, agreeing in cross-examination that he was describing tinted windows.
142․The respondent contended that “it was clear from Mr Chohan’s evidence that he was largely, if not entirely obstructed by the pillar and that he was attempting to avoid being seen”. I accept that the effect of Mr Chohan’s evidence was that he was generally concerned not to be seen by the appellant and the complainant. The evidence of his desire to avoid being seen by the appellant and the complainant was connected to when the vehicle moved from its position across the carpark from Mr Chohan, drove closer to him and out of the car park. He said he tried to make it appear as if he was attending to trolleys. He did not specifically say that when he was standing just behind the pillar he was also attempting to avoid being seen.
143․Accepting that his position just behind the pillar might also have been influenced by his desire not to be seen, it does not follow that Mr Chohan’s view of the vehicle was largely or entirely obstructed by the pillar because of his position just behind it. His position does not mean he did not have or take the opportunity to observe the vehicle. Indeed his evidence was to the contrary when he said he “could see clearly”. The entire purpose of his attendance in the car park was to assist Ms Sharwood with the couple who she identified as connected to the vehicle. It makes no sense that he would not look at the vehicle. I do not accept that his position just behind the pillar provides a basis to doubt his assertion that he could not see inside the vehicle, particularly when the entirety of his evidence is considered.
144․Mr Chohan did not say that he could not see the car because he was standing behind the pillar. He did not say he could not see into the car because his view was obstructed by the pillar. Mr Chohan identified a very specific reason why he could not see into the vehicle – the tinting of the windows. He was unequivocal in the evidence he gave about his ability to see into the vehicle from where he was standing with Ms Sharwood saying, “no I couldn’t see inside, no” and “I didn’t see anything inside the car, no”.
145․There is no basis for Mr Chohan’s evidence to be rejected. Indeed, it is consistent with the tinted window that can be observed in the video footage and the distance he was standing from the vehicle with Ms Sharwood, also revealed in the video footage.
The evidence of Ms Sharwood
146․It can be readily accepted that there is a distinction to be drawn between reliability and credibility. At the outset I observe, consistent with her status as an independent bystander, that Ms Sharwood was doing her best to tell the truth and describe what she observed in the proceedings before the Magistrate. A witness may give an honest version of events that is ultimately determined to be an unreliable version.
147․Ms Sharwood was described as having “no skin in the game”. So much is true. She was a stranger to the appellant and the complainant. Her bystander status lends itself to enhancing her credibility, but it does not in and of itself, enhance or bolster her reliability.
148․As will become clear in my view there are a number of details that emerge from the evidence of Ms Sharwood that give me real hesitation in relation to her reliability. Contrary to what the respondent submitted, this is not a view that necessarily speaks to dishonesty on her part. It is a view that acknowledges Ms Sharwood may well believe that she witnessed the incident as she described it, but the standard to which I must be satisfied cannot be established when her version is carefully scrutinised.
149․At the risk of repetition, I do consider it necessary to set out some of the detail of Ms Sharwood’s evidence in order to demonstrate some of the inadequacies in her account that affect her reliability. It is necessary to do so in circumstances where her evidence is critical to the prosecution case.
150․Ms Sharwood described initially hearing screaming and shouting. She said of the first assault, “the Holden Commodore was passing me and I just managed to get a glimpse of the front and the guy in the front was hitting the girl in the passenger seat”. She said she was about a metre away and the appellant was striking the complainant “mostly with his left hand” and that he did “a couple of swings” later saying “it wasn’t a punch. It was more like a swinging across”. Ms Sharwood agreed she told police that she had observed the appellant and complainant in the car for a “split second” front on and then from side on as the vehicle moved slowly past her.
151․Ms Sharwood described the second assault as “he was hitting her multiple times, probably about 10 times in the span of a couple of minutes, grabbing her hair”. Ms Sharwood specifically described the appellant using “alternating hands” when he was hitting the complainant on the second occasion. Ms Sharwood described seeing the first assault on the “top” level of the car park and the second assault on the level below. This is important because of the positioning of the vehicle on the level below and the distance Ms Sharwood was from the vehicle when she said she observed the second assault.
152․Ms Sharwood described the windows of the vehicle as “pretty clear. No apparent, like tinting or anything”. In cross-examination Ms Sharwood she agreed she had told police that the windows did not seem very clear, clarifying that they were “very lightly” foggy. The vehicle was on the very opposite end of the car park when she said she witnessed the second assault. Mr Chohan was with her by this stage.
153․Ms Sharwood said the video footage was taken while she was on the phone to the triple-zero operator from where she was standing when she observed the second incident. The triple-zero call was made after the second assault, on her evidence.
154․In the second assault Ms Sharwood said she saw:
(i)the appellant “lunge over and shut the door”; and
(ii)the appellant hitting the complainant, the actual figures of their bodies and the appellant reaching over from the passenger seat.
155․I have already referred to some of representations contained in the triple-zero call made by Ms Sharwood. The call also relevantly records Ms Sharwood saying:
(i)“he was bashing her head and ah, yelling so loud that I could hear from outside the car across the car park”; and
(ii)“she just tried to open the door and get out. And he’s slammed it on her and pulled her back in”; and
(iii)“I’ve got some probably crappy footage, um, zoomed in from very far away”.
156․Ms Sharwood did not describe the second assault in any real detail in the triple-zero call. This second assault is the conduct closest in time to the triple-zero call, and Ms Sharwood said that both assaults occurred before she made the triple-zero call. On any view the second assault was a significant assault, being described as 10 occasions where the appellant was hitting the complainant and grabbed her hair. Ms Sharwood maintained in cross-examination that 10 was the specific number of occasions that she saw the appellant strike the complainant, despite not mentioning that detail of the second assault in the triple-zero call.
157․I do consider this to be a compelling difference between the version she gave in the proceedings and the contemporaneous complaint to the emergency operator. On Ms Sharwood’s evidence she had just seen the second assault occur. Ms Sharwood’s unwavering certainty when she gave evidence in the proceedings as to the very specific number of occasions she saw the appellant strike the complainant is difficult to reconcile with its absence in any real detail from the triple-zero call.
158․Ms Sharwood’s evidence that the windows were “very lightly” foggy before adding “but nothing that obstructed my view” was entirely inconsistent with Mr Chohan’s description. The video footage does not support Ms Sharwood’s evidence on this point. Indeed it demonstrates at least the back window of the vehicle to be very darkly tinted. To describe it as “black”, as Mr Chohan did, would not be inaccurate.
159․The triple-zero call was made while Ms Sharwood was standing in the same position she said she observed the second assault. It is curious then that she begins the triple-zero call with “I don’t want to walk over and go see if they’re in the car, but that’s their car and there’s no exit from down there”. I reiterate that on her evidence this is said after the second assault had occurred. The only interpretation of that remark is uncertainty as to whether the appellant and the complainant were in the vehicle at the beginning of the triple-zero call. It begs the question, why would Ms Sharwood need to go and see if they were in the car, having only moments earlier observed the appellant quite seriously assault the complainant in the vehicle? That Ms Sharwood was uncertain about whether the pair were in the car is entirely consistent with the size and appearance of the back window in the video footage, with the distance she was from the vehicle and with Mr Chohan’s evidence that he could not see into the vehicle from where he was standing with her while she was on the phone to the triple-zero operator.
160․The footage provides an independent record of just how far away from the vehicle Ms Sharwood and Mr Chohan were standing. The opening scene depicts the vehicle to be parked some distance away consistent with the 50 – 70 metres described by Mr Chohan. I observe that apart from the red colour of the vehicle, its’ general utility vehicle appearance and a dark coloured back window, no other detail is able to be observed. The window appears to be small in the further away footage. Whether the vehicle is occupied is not able to be determined. The footage reveals Ms Sharwood to be filming from behind wire fencing. The video footage demonstrates a number of matters relevant to the reliability and accuracy of Ms Sharwood’s account.
161․First, Ms Sharwood said that the video footage was “a very zoomed in iPhone that obviously is very unclear. I could see a lot better from my perspective and not from the perspective of a camera”. The close-up footage is somewhat unclear in the sense that the images in the footage are not sharply focussed. The inability to discern, in the zoomed in footage, what may be occurring inside the vehicle is not only a result of the operation of the zoom function. The difficulty with seeing what is going on inside the vehicle arises as a result of a combination of the zoom function and the very dark, plainly tinted, back window. Had the window not been so dark the zoomed in footage may have revealed some of what was occurring inside the vehicle. It is from the further away perspective that Ms Sharwood says she observed the second assault. It could only have been through the dark back window, the side windows being completely out of view. The darkness of the window was not made lighter when the footage is captured from further away. Indeed the back window appears to be darker in the footage taken further away, the position where Ms Sharwood was standing while she filmed the footage.
162․Second, there was no real explanation for the advantage Ms Sharwood asserted she had via her eyesight, compared to the close-up footage, in circumstances where she was standing so far away. Ms Sharwood told the triple-zero operator that the footage “was zoomed in from very far away”. The footage confirms this. The zoomed in footage does not allow for the identification of anything inside the vehicle with any certainty. Putting aside the pillar as an explanation for Mr Chohan’s visibility as I have, there was no other evidence that explained why Ms Sharwood was able to see the kind of detail she described seeing inside the vehicle when Mr Chohan was standing with her, and he could see nothing at all inside the vehicle. Mr Chohan’s evidence is consistent with both the distance and the visibility through the back window that can be observed in the footage.
163․Third, the action Ms Sharwood described as the appellant lunging across the vehicle and pulling the door shut (in the triple-zero call she describes the appellant slamming the door and pulling the complainant back in the vehicle with him) must have occurred while the footage was being filmed with the zoom function activated. The footage does capture the passenger side door opening and shutting again. It was not possible in my view to see a person inside the vehicle lunging across to slam the passenger door shut in the zoomed in footage. So too a person using “alternate hands” to hit another person in the vehicle. The footage reveals that it was just not possible from the zoomed in perspective to identify anything or anyone inside the vehicle with certainty or precision. The perspective further away (where Ms Sharwood was standing) makes that possibility even less likely. In those circumstances it is difficult to accept that Ms Sharwood was able to observe the kind of precise detail she described, from 50 – 70 metres away through a small, dark window.
164․In my view, when compared to what can be viewed in the footage, Ms Sharwood’s account of seeing the second assault as she described it, is implausible. In particular, the assertion that she could specifically see the appellant “alternating hands” to strike the complainant and lunge across the vehicle to slam the door shut, when weighed against the actual video footage and Mr Chohan’s evidence, is somewhat incredible.
165․Ms Sharwood did accept that she had made some assumptions in her evidence. While not especially significant in and of themselves they do reveal a willingness on her part to fill gaps in her own narrative. I observe here that the version contained in the triple-zero call, contemporaneous to the action occurring, had the appellant pulling the complainant back in the vehicle with him. Apart from the fact that the description of the appellant pulling the complainant back into the vehicle was not repeated in her evidence, it is implausible that conduct of this kind, for the reasons I have outlined, could be observed from where she was standing.
166․While I do not consider that any exaggeration or enhancement of the incident occurred deliberately, I do consider that Ms Sharwood demonstrated a capacity to describe what she assumed was occurring, rather than what she was actually observing. Accordingly, I consider that once Ms Sharwood determined that she had seen the appellant strike the complainant, there is a real possibility that her evidence was constructed to fit that narrative. The inadequacies in her version about the second assault give me real pause in relying to the requisite standard, on her version of the entire incident.
167․In addition to that uncertainty as to the reliability of Ms Sharwood, there are other matters that affect the assessment of the case against the appellant. While perhaps unnecessary in light of the view I have expressed about Ms Sharwood’s evidence and the critical nature of it to the prosecution case, for the sake of completeness I turn to consider those matters.
168․The respondent submitted there was no evidence that Mr Chohan or Ms Sharwood heard a male yelling or screaming. This was said to be inconsistent with the version of the appellant and the complainant about there being an argument in which they were both participating by screaming or yelling and accordingly, a factor relevant to rejecting their version of events. The submission mistakes the evidence with respect to Ms Sharwood. She did give a version where the appellant could be heard “just yelling at her at incredible, like, top of his voice” and “he was bashing her head and ah, yelling so loud that I could hear from outside the car, across the car park”.
169․The respondent pressed the point made below, that the nature of the screaming (that can briefly be heard in the footage) was irreconcilable with the argument described by the complainant and the appellant. I do not accept that submission. While the appellant was shown the footage and asked to explain it, the complainant was not. This is significant in my view in terms of what can made of the screaming. The complainant and the appellant both described an emotional, intense argument where the complainant was screaming (“really loudly”) and crying, banging on her door, and where the appellant was also screaming, banging the steering wheel and console, and both were waving their arms around in the vehicle. The argument occurred against the background of significant personal stressors. Mr Chohan did not offer his perception of the nature of the screaming, nor was he asked, describing it simply as “very loud”. In circumstances where Ms Sharwood does not know the complainant and there is no evidence from the complainant about the nature and tone of her screaming generally or the brief scream that can be heard on footage specifically, I do not consider that the “screaming” is necessarily inconsistent with the version of the appellant and the complainant.
170․The respondent submitted that the sequence of events described by both the appellant and the complainant lacked substance. The complainant’s version failing to account for the vehicle moving to the lower level of the car park, the appellant’s explanation for the opening and closing of the passenger door during the second incident and his evidence about the scream on the footage were identified as examples of the shortcomings in their evidence.
171․First, the respondent submitted that the appellant would not concede there was any scream in the video footage. This misstates his evidence. Once played the footage in cross-examination the first question he is asked is this:
Prosecutor: So just to be clear, it’s your evidence that – look, did you hear that sound in that?
Appellant: I heard that sound, yes.
Prosecutor: Was that your wife?
Appellant : I don’t know
….
Prosecutor: So I’ve asked you if that came from your wife and you just said you don’t know?
Appellant: I can’t be sure. I can’t see her, I can’t…
172․The appellant did not refuse to concede the scream occurred. His answer was that he could not be sure who was responsible for it. I do not consider this to be a significant aspect of his evidence.
173․Second, the failure of the complainant’s version to account for the move to the lower car park, is in my view, of no moment. So too, the appellant’s explanation for the opening and closing of the door. It demonstrates that neither were attempting to craft a version to match or meet the allegations of Ms Sharwood or indeed, the specifics of the version of the other. In my view the examples given do not have significance in the context of what both the appellant and the complainant described – an emotional, irrational argument in the context of significant personal stress including a failed business, a temporary housing situation and a baby on the way. It was not unreasonable that it was the argument they were focussing on, it having diverted them from the purpose of their trip to Coles and accounting for some aspects of their versions that might appear inexplicable. On a version of the incident limited to a loud, emotional argument, that the appellant and complainant could not account for each movement of the vehicle or each other, was not implausible.
174․The appellant touched on the nature of such an interaction when he said “Yes, we drove the car down the car park. We were actually trying to leave but we ended up on the other car park. I don’t know how. It just happened. We were in the middle of an argument, mate”.
175․The “we were in the middle of an argument” response accounts for some of the conduct described as unexplained on the appellant and complainant’s version including the opening and closing of the door and the failure to go into Coles, it being the purpose of the trip. The complainant explained that the nature of the argument meant the visit to Coles was abandoned because she was crying. The appellant said that he told the complainant that he would go into Coles and then once out of the vehicle:
I just felt yucky, like, my wife and I just been in a massive argument, you know. Like, I couldn’t even remember what I was going to get by the time I have walked five metres. I didn’t feel like being there. I wanted to go home. I wanted to go back to bed.
176․And further:
I wanted to go home. I think it’s fair to say neither of us wanted to be there at that point. Like, we both wanted to go.
177․The significant personal stressors in their lives provided a compelling explanation for the emotional, explosive nature of the argument. There was nothing far-fetched or ridiculous about the heated conflict derailing the purpose of the visit and explaining the abrupt change of mind of the appellant when he got out of the vehicle with the intention of going to Coles. The footage revealed that to be exactly what he did – walk away from the vehicle, only to return within moments. In light of his explanation and the complainant’s evidence that she did not want to go into Coles because she had been crying, the act of returning to the vehicle, cannot be said to be more consistent with a physical assault.
178․The lack of injuries was not, as the respondent submitted, fatal to the prosecution case. That said, given the nature of the description of both assaults, a mark or injury may have been reasonably expected. It is difficult to conceive of a person’s head being “smashed”, “slammed” or “bashed” into a window as well as being struck and then being further struck at least 10 times, and there being no apparent physical consequences of such, thirty or so minutes later. Police attended upon the appellant and complainant’s home within a fairly short space of time and made no observations consistent with injury. While they observed that the complainant appeared to have been crying, this is entirely consistent with an emotional argument having occurred between them. Sergeant Booth had a conversation directly with the complainant without the appellant present and did not observe any physical signs of the kind of assault described by Ms Sharwood. While, as I have accepted, this is not fatal to the prosecution case, the absence of injuries was consistent with the verbal argument the appellant and complainant both described.
179․Finally, I observe that the denials of an assault occurring made by both the appellant and complainant (including when the complainant had the opportunity to speak with attending police privately) were made immediately and maintained by virtue of the substance of their evidence. The substance of their versions was not so incredibly or neatly matched either to the version of the other or to the prosecution case, such as to raise the prospect of being carefully rehearsed or the result of collusion. As the Magistrate noted, the complainant’s version did not account for the vehicle moving to the lower level. The complainant had an awareness of some consequence for misleading a court and pointed to her child as motivation not to do so. Significantly, the complainant told police that there had been argument but no assault, in circumstances where there was no opportunity to consult with the appellant between the allegation of assault and his arrest. There is no evidence that the appellant and complainant were aware that police had been contacted about their conflict in the car park. There was no basis for them to have considered then, prior to police arrival, the version they would offer in explanation.
180․The respondent submitted that a rejection of the evidence of Ms Sharwood requires this Court to find that she was entirely dishonest with the Court. I disagree. The appellant and the complainant both gave evidence of an explosive, emotional argument that included screaming, yelling, banging on the steering wheel and the centre console. There can be no doubt that at least an argument of that kind in fact occurred. The inadequacies and inconsistencies in Ms Sharwood’s evidence as outlined, provide a basis for real hesitation about relying on the entirety of her evidence. It leaves open the real possibility that while she was honest in her account, she may have been mistaken in substantive respects and cannot be relied upon to the requisite standard. Accordingly, the appellant is entitled to the benefit of the doubt that I have after carefully considering the evidence.
Orders
181․Accordingly, I make the following orders:
(1)The appeal is allowed.
(2)The findings of guilt in relation to CC2023/4421 and CC2023/4422 are set aside.
(3)A finding of not guilty is entered in relation to CC2023/4421 and CC2023/4422.
| I certify that the preceding one hundred and eighty-one [181] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: A Turner Date: 5 April 2024 |
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