Buttriss v Jarvis
[2024] ACTSC 247
•6 August 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Buttriss v Jarvis |
Citation: | [2024] ACTSC 247 |
Hearing Date: | 23 February 2024 |
Decision Date: | 6 August 2024 |
Before: | Taylor J |
Decision: | 1. The appeal is dismissed. 2. The conviction for the charge of aggravated common assault (CC2023/2285) is confirmed. |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – appeal against conviction – whether a miscarriage of justice occurred – whether the verdict was unreasonable or unsupported by the evidence – whether the Special Magistrate made errors of law – assessment of the credibility of prosecution witnesses – error not established – each ground of appeal not upheld – appeal dismissed – conviction confirmed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26(1), 27, 28 Evidence (Miscellaneous Provisions) Act 1991 (ACT) Evidence Act 2011 (ACT) ss 55, 78, 97, 192A Magistrates Court Act 1930 (ACT) ss 207, 208, 214, div 3.10.2 |
Cases Cited: | Alexander v Bakes [2023] ACTCA 49 Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 Garay v The Queen(No 3) [2023] ACTCA 2 Lee v Lee [2019] HCA 28; 266 CLR 129 Liberato v The Queen [1985] HCA 66; 159 CLR 507 Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 M v The Queen [1994] HCA 63; 181 CLR 487 McElholum v Hughes [2016] ACTCA 37 McFarlane v Van Eyle [2022] ACTCA 68 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679. Smith v The Queen [2001] HCA 50; 206 CLR 650 Warren v Coombes [1979] HCA 9; 142 CLR 531 Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645 |
Parties: | Steven Buttriss ( Appellant) Blain Jarvis ( Respondent) |
Representation: | Counsel Self-represented ( Appellant) C Muthurajah ( Respondent) |
| Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions | |
File Number: | SCA 41 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Urbas Date of Decision: 28 June 2023 Case Title: The Police v Steven Buttriss Court File Number(s): CAN 2284/2023 CAN 2285/2023 |
TAYLOR J:
Introduction
1․The appellant was charged with one charge of aggravated choking (CC2023/2284), contrary to s 28(2) of the Crimes Act 1900 (ACT) (the Crimes Act) and in the alternative, a charge of aggravated common assault (CC2023/2285), contrary to s 26(1) of the Crimes Act. The circumstance of aggravation was that the offence occurred in a family violence context. The appellant was found guilty of the alternative charge on 28 June 2023 after a hearing in the ACT Magistrates Court that commenced on 14 June 2023.
2․This is an appeal against that finding of guilt.
Grounds of appeal
3․The appellant was self-represented at the appeal hearing and the documents filed in support of the appeal identified six grounds of appeal. In summary, those grounds are:
(i)Ground One: That a miscarriage of justice occurred.
(ii)Ground Two: That there was insufficient evidence to justify the conviction on the charge of aggravated common assault.
(iii)Ground Three: That the Special Magistrate made an error of law with respect to self-defence.
(iv)Ground Four: That the Special Magistrate made an error of law when he ruled that statements made by a witness were admissible pursuant to s 78 of the Evidence Act 2011 (ACT) (the Evidence Act).
(v)Ground Five: That there was error in the Special Magistrate’s findings in relation to the credibility of prosecution witnesses.
(vi)Ground Six: That the Special Magistrate made errors of fact.
4․The respondent helpfully dealt with grounds two, three, five and six as particulars of an assertion that the verdict was unreasonable and not supported by the evidence. This approach does not prejudice the appellant and reflects the nature of the errors he alleged. For convenience, I will adopt the approach taken by the respondent.
5․For the following reasons, the appeal is dismissed.
Background
The prosecution case
6․The alleged offending occurred on 1 March 2023. The prosecution case was that the appellant choked the complainant while they were in the vehicle together with their son who I will refer to in these reasons as ‘MB’. The complainant was driving the vehicle and the appellant was in the back seat behind her. MB was in the front passenger seat. On the prosecution case, the appellant choked the complainant from behind and pulled on the handbrake. As the vehicle stopped, MB got out of the vehicle and ran to get help from a friend who lived nearby. He spoke to his friend’s mother, who I will refer to in these reasons as ‘Ms H’, who called the police.
7․The choking was particularised in the following way:
(a)The offender reached around the front driver’s seat and pulled the complainant back against the driver’s seat. She felt like she was being choked and thought that the collar of her shirt was being pulled against her throat from behind.
8․The prosecutor in his opening address relied on the alternative charge of common assault if the Special Magistrate could not be satisfied that there was pressure applied to the complainant’s neck, or that the appellant did not intend to apply that pressure, as required by s 28 of the Crimes Act. The appellant’s representative at the hearing submitted that any pressure applied was not intentional.
The proceedings before the Special Magistrate
9․On 14 June 2023 the hearing commenced before the Special Magistrate. The appellant was legally represented at this time.
10․The prosecution case consisted of oral evidence from the complainant, MB, Ms H and the Australian Federal Police (AFP) informant, Constable Blain Jarvis. The prosecution tendered a transcript of an evidence in chief interview with MB, a recording of a triple-zero call and photographs of the complainant’s neck. At the hearing, defence called oral evidence from the appellant and tendered a map marked by the appellant during his evidence.
11․On 28 June 2023, the Special Magistrate found the appellant guilty of the alternative charge of common assault.
Evidence
Evidence of the complainant
12․The complainant’s evidence comprised of an audiovisual recording of an evidence in chief interview with police, as well as evidence given at the hearing. The complainant gave evidence that on the day of the incident she received a message from MB’s teacher that he had been suspended for bringing a knife to school. On her account, MB told her that his father, the appellant, had told him to take the knife to school. The complainant spoke to MB and said they had to go to the school. The appellant was doing some work in either the backyard or the driveway when the complainant and MB got into the vehicle. The complainant told the appellant that she was going to the school and the appellant said that he was coming with her. She said that he should not come, but the appellant insisted. He got in the vehicle.
13․The complainant told police that she started driving away from the house and then said, “I'm actually gonna go to the police”. The complainant said that after she said this, the appellant, who was sitting in the back seat of the vehicle, grabbed her neck and put the handbrake on. The complainant told police that the appellant choked her from behind. She did not know how he did it, but he was choking her with something. She thought that maybe he had hold of her t-shirt from the back. She told police that she could not remember what her breathing was like, but she did not lose consciousness.
14․The complainant said that she could see the road in front of her, and then MB running away from the vehicle. The handbrake was so tight that she could not let it off. She said the appellant left the vehicle looking for MB, who had run to a house nearby. He spoke to two people who had come out of a nearby house. The appellant then came back to the vehicle and said something to the complainant about her not being able to get the handbrake off. She said that she had no petrol, and they went to the petrol station together. She initially told police that she filled up the vehicle with petrol, but later corrected that when they got to the petrol station the appellant said “you’ve got heaps of petrol. Just take me home. I’ve gotta get my dog”. The appellant was sitting in the front passenger seat at this point. He told her he needed to go home to the dog, and she said she would drop him and then go to find MB. MB called her and told her he was alright and was at a friend’s house. The complainant said she spoke to his friend’s mother, Ms H, who said she was calling the police.
15․The complainant told police that the day prior to the incident she and the appellant had a “big fight” and the appellant had made various threats to her regarding her house and her dog. She said the appellant stayed in the garage all night.
16․At the hearing, the complainant gave evidence that she felt the pressure on her neck at the front of her neck, around the middle, and that it was “slightly” above her “Adam’s apple”. She said that this pressure was applied for two minutes at the most. The driver’s seat she was sitting in had a backrest and a separate headrest, and there was a gap between the backrest and headrest. She demonstrated the width of the gap, which was about 10 centimetres. She did not know where the appellant’s hands were while she was being choked.
17․The complainant gave evidence that she had said she was going to the police station as she did not want to take the appellant to her son’s school in his state and she thought it was the best solution to make the appellant realise she did not want him to be with her and MB. She said that she asked him to leave but he did not want to. After she said she was going to the police station, she felt the pressure against her neck “pretty much straightaway”. She described the appellant pulling up the handbrake while he was choking her from the back seat. She said the vehicle was going about 20 or 40 kilometres an hour in a 60 kilometre per hour zone at the time the appellant pulled the handbrake.
18․In cross-examination the complainant agreed that MB was upset when she came home and spoke to him prior to the incident in the vehicle. She thought MB put the knife in his bag to appease the appellant. She agreed that in her evidence in chief interview she told police about an argument the day before the incident with the appellant and that she did not want the appellant to live with her anymore. She agreed that there was trouble at home around the time of the incident. She confirmed that she put the two dogs in the vehicle because she considered she was going to leave for some time as the relationship was in a bad place, and the appellant had not left when she asked. The complainant agreed that the appellant was in the backyard at the time she got into the vehicle, that he asked where she was going and that she told him she was taking MB to his school to speak to the principal about his suspension. She said she did not want the appellant to get into the vehicle and that when he insisted on getting into the vehicle, she was frustrated.
19․The complainant said that while they were driving she told the appellant that she was in fact going to drive to the police station instead of the school. She thought she was probably driving “a little bit slower than 50 kilometres per hour”. She agreed she never intended to go to the school and always intended to travel to the police station because she wanted the appellant out of her house. She disagreed that the appellant told her to stop the vehicle at least three times while she was driving.
20․The complainant also disagreed that the appellant was yelling while she was driving. She did not remember him doing that. When asked whether she remembered if the appellant had said anything in the vehicle, she said he had and that he was speaking with a raised voice. She disagreed that she was yelling at the appellant and when asked about her tone she said she spoke with a raised tone.
21․The complainant did not agree that MB was upset, crying or hyperventilating while she was driving. When it was suggested to her that MB was in fact crying, she stated she did not remember him crying and clarified this meant she did not agree that he was crying.
22․The complainant gave evidence that she has two small dogs and that they were unrestrained in the back seat of the vehicle while she was driving. She disagreed that they were jumping about throughout the vehicle.
23․The complainant did not recall if she felt anything at the back of her neck, but she remembered the pressure on her neck. She agreed that she had spoken with the prosecutor the day before the hearing and when asked at that time if she could feel anything at the back of her neck, she had said “just his hand there”.
24․When it was suggested that the vehicle stopped approximately 300 metres from her house, she could not give an answer but agreed she had stopped across the road from a “village” on Vansittart Crescent. She agreed that between the vehicle starting and stopping it was less than one minute.
25․The complainant agreed that when the vehicle stopped, MB jumped out immediately and ran in front of the vehicle, and she lost where he went. She agreed that the appellant got out of the vehicle and ran, and that she suspected he was trying to find MB and returned when he could not. When the appellant returned, she agreed he let off the handbrake because it was pulled so tightly that she was not able to release it herself. The complainant said that they drove to the petrol station, then returned home so the appellant could get his dog.
26․The complainant gave evidence that MB was not saying anything while they were driving and disagreed that she was looking at him and the dogs, who were “jumping around” in the back seat while she was driving. She denied that she was looking back at the appellant while driving and disagreed that she was driving in an erratic manner. The complainant disagreed that MB was particularly upset at this point, but that she thought he was wondering what was going on.
27․The complainant agreed that she had only had four hours of sleep the night before, that she had been in an argument with the appellant and was frustrated that he had gotten in the vehicle because she had intended to leave him. She agreed this was the reason she lied to him about intending to travel to the school. She disagreed that her memory of the events was affected by her frustration with the appellant. The complainant agreed she was upset when she spoke to the police.
28․The complainant was asked a series of questions about the skin tone on her neck. When asked about whether the day was hot, she said she did not notice. She disagreed that her skin tone changed across her head, neck and shoulders. She did not think there was a difference in skin colour between her neck and face. She denied that she was ‘flushed’ when she spoke to police.
Evidence of MB
29․The complainant and appellant’s son, MB took part in an evidence in chief interview with police on the day of the incident and gave evidence at the hearing. He said that on the day of the incident, he had been suspended from school and had come home “pretty late”. He told police that he was suspended because he had brought a knife to school that he had left in his bag over the weekend.
30․MB said in the proceedings that the appellant was holding the complainant “some place around the neck area or the hair, and I’m not too sure. It’s – it’s not that like vivid in my head, but it was – it was some place around the neck or the hair”. He gave evidence that he saw the appellant put his hands around the headrest and grab either side of the complainant’s neck and “kind of” choke her. When asked if the appellant’s fingers were at the front of her neck, he said he believed so. He described it as “around the mid to upper section of her neck”.
31․MB gave evidence that he thought the appellant had pulled on the handbrake. He acknowledged that in the interview with police directly after the incident he stated his mother had slammed on the brakes. MB clarified, saying that when he thought back to it, he knew “somebody pulled on the handbrake, but I’m not too sure who it was”. He was not sure what his mother was doing when the appellant had his hands around her neck; as soon as the handbrake was pulled, he got out. He could not remember if he saw the appellant’s hands around his mother’s neck before the handbrake was pulled. He did not know how fast his mother was driving when the handbrake was pulled.
32․When asked why he said to police that the appellant was pulling his mother’s hair rather than choking her, he said:
Because at – at that point, like I said, I was already kind of getting out so I think it was the neck, but like all I mainly saw was him putting his arms around the bars of the headrest and grabbing her neck.
33․MB gave evidence that before he saw the appellant grab her neck, his mother had said they were going to the police station and he believed the appellant then said, “why the fuck are we going to the police station”, and then approximately five seconds after he said this, grabbed her around the neck. MB then got out of the vehicle a “second or two” after that. He described running to a friend’s place and speaking to Ms H, his friend’s mother. This was about 40 or 50 seconds after the incident in the vehicle. He asked her to call the police and she did.
34․In cross-examination, MB disagreed that the vehicle had been driving for less than one minute, and said it was “maybe” around the one-minute mark. He agreed he had been suspended from school that day for bringing a knife in his bag and that he had previously been suspended from school many times for fighting. He disagreed that he had been in trouble with the appellant when he was suspended in the past. He agreed he had gotten in trouble from his principal and said he was “slightly” upset about being suspended. He agreed the complainant was upset with him when she came home and that she said they needed to go to his school.
35․MB agreed that the complainant put the two dogs in the backseat of the vehicle. He was not sure if they were jumping around in the back seat. He agreed that “maybe” it was possible they were jumping around, but that they would normally “stay pretty still” in the vehicle. He was in the passenger seat and the appellant was in the back seat behind the complainant. They were arguing and it was getting loud, but it was raised voices rather than yelling. When asked if this happened often in car rides, he said “sometimes, but usually at home”. When asked to agree that their arguing could have made the dogs jump around, he said “possibly”. MB agreed that at some point the complainant had said they were going to the police station, and that the appellant asked why. He remembered the appellant saying he did not want to go the police station and said that he wanted her to stop the car. He did not remember the appellant saying stop the car three times, but agreed it was possible. He agreed he was quite scared and crying while they were still driving, and the appellant and complainant were arguing. He disagreed that he was hyperventilating. MB agreed that when the vehicle came to a stop after the yelling, he was quite scared because the appellant is “strict” with him, and he was scared of what the appellant might have done.
36․MB did not remember telling the prosecutors that he thought his dad was chasing him. He agreed he was quite upset when he got to his friend’s house. He agreed he may have exaggerated “a thing or two” when he spoke to police, but that he told them the truth. He agreed his mind was “lightly foggy” when he spoke to police because of how scared he was.
37․When asked if he remembered telling police that the appellant had tried to punch the complainant with metal poles, MB disagreed, saying that he remembered the appellant had poles in his hands, but he did not see the appellant try to punch her with them. When asked if he told police he saw the appellant swing his hand, he said “around yes, but I believe that he dropped the poles on the seat before he did that to get her in a headlock”. He agreed he told police that the appellant had pulled the complainant back by her hair, but now thought it might have been her neck. When asked if that was an example of him exaggerating, he said, “not really”. He clarified in re-examination that “I was not exaggerating about him putting his hands around her neck at all”. He agreed he had spoken to the complainant since the incident, and that he still lived with the complainant. He said she had not explained much about what she said happened that day, except what happened after he got out of the vehicle
Evidence of Ms H
38․Ms H gave evidence that at about 3:30PM on 1 March 2023 she was at home when a friend of her son’s, MB, came “bursting” through her front door. She observed he was very distressed, hysterical, that he could almost not speak, that he was red in the face and very flustered. She described him shouting “call the police. My dad is hitting my mum. Call the police”. She said she attempted to calm him down, and asked what happened. He said “I need you to call the police. My dad is hitting my mum”. She said she called triple-zero and relayed the information to the operator as MB told her what had happened.
39․Ms H explained in her evidence that MB told her that the incident happened in the vehicle. She said it was her understanding that there was an argument in the vehicle and the appellant had started attacking MB’s mother from behind, and that MB had then fled the vehicle on foot and come straight to her house. She said that he would not come out of the back room of the house as he felt safer in there. The vehicle was still visible to her on the junction of O’Halloran Circuit and Vansittart Crescent. She could not see any other vehicles in the same area. By the time police arrived at 4:00PM the vehicle had gone. At about 4:20PM MB participated in an interview with police at her house and she gave a statement.
40․Ms H said that after his interview was completed, MB attempted to call his mother but he could not get through. His mother eventually called him back and asked him to meet her at the school, but as he was too scared Ms H told him to stay at her house. She remembered that after he spoke to his mother, he said “I just want to know my mum is safe”.
41․Ms H agreed that MB was hysterical, crying and hyperventilating; barely able to speak. She agreed that she observed him to be very frightened.
Evidence of Constable Blain Jarvis
42․Constable Blain Jarvis was the AFP informant. He gave evidence that he received a dispatch call to attend an address in the Australia Capital Territory (ACT) regarding an incident involving the complainant on 1 March 2024 at about 3:45PM. By the nature of the report, he considered he needed to conduct a welfare check with the complainant. When he attended the address there was no one there. He called the complainant who provided him with her location, and he attended that address. At about 4:10PM he conducted a family violence evidence in chief interview with her. He also took some photos of the skin around her larynx as he observed “some reddening of the skin”.
43․Constable Jarvis was taken to the photos in his evidence and when asked what he could observe in the photo he said, “a reddening of the skin that, to me, was inconsistent with the rest of [the complainant]’s skin”. He also described it as “irritation”.
44․In cross-examination Constable Jarvis agreed there was no medical documentation included in the brief of evidence and that he himself had no medical training. He was taken to the first photograph of the complainant which had been marked up, with various portions of her neck, chest and shoulder circled and labelled. It was suggested to him that the skin tones as between the various portions, were distinct from one another. The Constable disagreed that there was a difference in skin tone between:
(a)The shoulder and upper chest.
(b)The upper left and upper right neck.
45․Constable Jarvis agreed that the upper right neck was distinct from the portion just under the chin due to some “shading”. He agreed that this may also explain the distinction between the shoulder and just under the chin. When taken to the third photograph he gave evidence that he considered the complainant’s neck to have varying skin shades.
Evidence of the appellant
46․The appellant said that he was at home on 1 March 2023 when his son MB arrived home from school looking “pretty down”. He asked MB what was wrong and they had a conversation for about five minutes before the complainant arrived home. He said that MB “abused” him but he managed to calm him down, until the complainant pulled up in the driveway and then MB started crying instantly and ran out to meet her. The complainant said she was going to take MB to the school to discuss the suspension and she got back into the vehicle two or three minutes after she returned home. He said that he should come to the school as well; he thought she was making “strange decisions” and that she needed support. He said that she was screaming “No, you can’t come. I don’t want you to come” and that MB was crying. He turned the vehicle off and suggested that they should all “calm down”. The complainant then said he should get in the car. He got into the back seat on the right-hand side, behind the complainant who was driving. MB was in the passenger seat. He said that MB was crying the whole time.
47․The appellant estimated that the entire trip took less than a minute. He said that the vehicle stopped because he reached over and “applied the emergency brake”, due to the complainant speeding and not watching where she was going, and because the dogs were being “frantic” and jumping around because of the shouting in the car. The appellant said that one of the dogs jumped in between the complainant’s legs, into the driver’s side footwell.
48․The appellant said that the complainant revealed she was going to the police station by saying either that she was going to the police station or that she was taking him to the police station. He said he asked her why and to pull over three times. When she did not comply, and instead accelerated, he asked her to pull over again. He then described using the headrest to pull himself forward with his right hand and applying the emergency brake with his left hand. The vehicle stopped within seconds of him pulling the brake, approximately 200 to 250 metres from the intersection of Vansittart Crescent and Ragless Circuit. He identified on a map the route the vehicle took and where it stopped. The marked-up map formed part of Exhibit Five at the hearing.
49․The appellant said that he had checked that there were no other vehicles on the street. He said he could not have exited the vehicle via the door as they were going over 60 kilometres per hour. He said the complainant was aggressive, emotional, not watching where she was going, and that the dog had jumped into her footwell, which made him decide he had to pull the emergency brake. He then reached forward and turned the hazard lights on. Later in his evidence he reiterated that he was scared and referenced an event in his past when he had been in a major collision as a passenger in a vehicle. He said that MB was “howling” the entire time. He said that after he pulled on the handbrake he told the complainant to “hop out”, that he then got out, opened the door for her and she got out, and then he pulled the keys out of the ignition, locked the vehicle and then started heading in the direction that MB had ran. When he realised that MB was gone, he turned around and saw the complainant getting into the vehicle, and realised she had a spare set of vehicle keys. He went back over to the complainant and saw that she was struggling to let the handbrake off, so offered to help her. He gave evidence that she had “calmed down”.
50․The appellant said that he was a professional driver, having driven trucks and heavy vehicles for a living for about 20 years on and off.
51․In cross-examination, the appellant explained that he and the complainant were in a relationship at the time of the incident. He said that when MB came home, he told him he had been suspended for taking a knife to school. When the complainant came home, MB was “pretending to cry”. The appellant was up on a ladder in the middle of drilling a hole, and heard the complainant say, “oh what’s he done now”, which he believed to be a reference to him. When the complainant got into the vehicle, she had a dog under each arm. When he saw them trying to get into the vehicle it seemed like she was trying to “get moving” before he could speak to her and he thought it was unusual that she would put the dogs in the vehicle, so he came down from the ladder, ran over to them and asked what was going on.
52․The appellant asked the complainant where she was going and when she said she was taking MB to the school, he said “I should come too”, as he thought they were both emotional and needed a “calm sort of mind”. She told him she did not want him to. She was “screaming” and began reversing the vehicle while he was talking to her. He then reached into the vehicle and turned off the ignition. The complainant told him that he could get into the vehicle, and he got into the back right-hand passenger seat. At this point, he said, MB and the complainant had a dog on each of their laps.
53․The appellant said the complainant reversed “emotionally”, clarifying that he meant “quickly”, out onto the road. He believed she was going about 60 kilometres per hour and the road they were on had a speed limit of 50 kilometres per hour. He said she was driving erratically and that she was not paying attention, was not focused on the road, and was looking over her shoulder and around the inside of the vehicle. He thought that the dogs were trying to jump out the windows because they were “frantic”. The windows were closed. He recalled that just after they went through the intersection the complainant said they were going to the police.
54․The appellant said they may have been speaking in moderately raised voices. He said the complainant was yelling and MB was crying, but that he thought MB was “acting”, though starting to get “pretty stressed”.
55․The appellant said he asked the complainant to stop three times, then said to her “pull the fuck over”, and she was still accelerating down Vansittart Crescent. One of the dogs jumped into the complainant’s footwell at some point and the appellant said he thought she was not “emotionally paying attention, but now she physically can’t stop if she needs to”. She did not stop the vehicle. The appellant sat up, pulled himself forward but could not go further because of his seatbelt. He took his seatbelt off, then sat forward again, put his hand on the back of the driver’s seat around the head rest. He said he was “pretty sure” his hand did not make contact with the complainant. He reached forward and used his left hand to pull on the handbrake which brought the vehicle to a stop. He then turned the hazard lights on.
56․The appellant described getting out of the vehicle, opening the complainant’s door and taking the keys out of the ignition. The complainant then got out of the vehicle. The vehicle was in the middle of the left lane on Vansittart Crescent. Two vehicles had come to a stop behind their vehicle. He did not move the vehicle out of the way at that point, as he thought there was a safety buffer from the two other vehicles, and his main concern was going after MB.
57․The appellant said that when he leaned forward and pulled the handbrake, the complainant was sitting with her back flush against the seat. There was a slight gap between the headrest and her head, and she was in a natural or neutral sitting position.
58․The appellant remembered she looked shocked or surprised when he pulled the handbrake. He could not remember exactly where his hand was on the driver’s seat when he grabbed the handbrake but that it was definitely his right hand. He agreed he could remember all the details he had given in his version of events and that he had a positive recollection of an incident that went for a minute or less. He said he could see events happening in the driver’s seat because he was leaning into the middle of the vehicle, as he considers he is “driving in [his] mind” when he is a passenger. He said he was not making up his version of events.
59․The appellant agreed that when he pulled the handbrake, the vehicle was in motion, that the complainant had rounded a corner, that she was accelerating, and the vehicle was going “as fast as it could at that point”. He thought she was going faster than 40 kilometres per hour. He agreed that he had to release his seatbelt to lean forward to pull the handbrake, and he had to come off the seat and had put a “fair bit of weight” on the complainant’s seat. He accepted this could have been dangerous for him as he was relying on his right hand only, but said he was fairly strong and understood vehicle dynamics so was relying on the “decelerating forces” to throw him backward rather than forward. When questioned about where precisely his arm was on the complainant’s seat, he said that he thought the right hand-side of his chest was against the left side of the driver’s seat, and his right hand was slightly around the front of the seat, and then he reached with his left hand and pulled the handbrake. He was leaning towards the centre of the vehicle. He agreed he did not give the complainant warning that he was going to pull the handbrake. He agreed that the complainant and his son, who he cared about, were in the vehicle and that there were people on the side of the road.
60․The appellant agreed, that during the incident in the vehicle he thought it was best to grab the driver’s seat while the vehicle was moving. He agreed that there was a risk he could have touched the complainant and surprised her, which could have made things worse. When asked if he thought leaning forward and pulling on a handbrake could likely have made her driving worse, he said it was a “quick and intense situation”, that he did not have a plan, but that they needed to stop or slow down. He accepted pulling the handbrake could have caused the vehicle to skid, especially if the driver moved the wheel after being surprised from behind. He did not agree that he could have waited to stop at some traffic lights, as he said he did not feel safe.
61․The appellant disagreed that he was not actually concerned about road safety. He said he was not angry at the complainant, saying that he did not think she had lied to him at that stage about where they were driving to, and just thought she was being erratic. He disagreed that there had been an argument between them the previous night, saying “there were some emotional words said”. He described the complainant as emotionally unstable.
62․The appellant disagreed that he was concerned that she was driving to the police station and that he wanted to stop her. He said he was concerned because he thought it was an erratic decision. He disagreed that he lost his temper. He disagreed that he grabbed the complainant from behind and deliberately pulled her backwards. He disagreed that he pulled her so that her shirt was pressing against her neck. He disagreed his hands were around her neck. He agreed his son jumped out of the vehicle and that he went to look for him but could not find him, so he came back to the vehicle. He agreed he asked the complainant to take him home to get his dog. He agreed the complainant and him had a disagreement about whether he told MB to take a knife to school.
63․The appellant said the evidence of the complainant and MB did not “add up”.
64․The appellant described MB’s evidence as a lie, and that everything he (the appellant) had said about the incident was the truth.
65․The appellant said that a possible explanation for the pressure on her neck was that he had grabbed her seatbelt inadvertently. He said if he had attempted to strangle someone from behind then it would be likely that it would be “highly successful” and it would be “obvious”.
The Special Magistrate’s decision
66․The Special Magistrate reserved his decision on 15 June 2023 and delivered it orally on 28 June 2023. He set out the offence the appellant was charged with, including the statutory circumstances of aggravation, the offending having occurred in a family violence context. He noted that the prosecution relied on a charge of aggravated common assault as the statutory alternative to the charge of intentionally or unlawfully choking, suffocating, or strangling another person. He summarised the prosecution case and noted that the complainant and her son MB gave evidence from a remote witness room pursuant to their entitlements under the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
67․The Special Magistrate gave reasons for a ruling made pursuant to s 192A of the Evidence Act during the course of the hearing in relation to the admissibility of three answers in the interview of MB, pursuant to ss 55(2)(b) and 78 of the Evidence Act. The relevant answers were:
A 44: And I could tell that he was starting to – he was going to get violent.
A 46: He seemed like he – it looked like he was possibly thinking about hitting me.
A 65: Because he has been very violent in the past.
68․Answers 44 and 65 were objected to as opinion evidence and answer 46 was objected to as tendency evidence. The prosecution submitted answers 44 and 65 were admissible subject to the exception contained in s 78 of the Evidence Act for lay opinion evidence. The prosecution also submitted that answer 46 was admissible as relationship evidence. The Special Magistrate considered answers 44 and 65 fell within the lay opinion exception as they were based on what the witness saw, heard or otherwise perceived, referring to Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 (Lithgow City Council) at 368 [40] and Smith v The Queen [2001] HCA 50; 206 CLR 650 at 670 [60].
69․The Special Magistrate further considered, pursuant to s 78(b) of the Evidence Act, that the evidence was an opinion necessary to obtain an adequate understanding of the witness’s perception of the matter or event and accepted the evidence was necessary as it was the only practicable way for the child witness to describe what he was observing about the appellant’s behaviour: Lithgow City Council at [51].
70․The Special Magistrate determined that answer 46 was admissible on a non-tendency basis, as being relevant to the admissibility of answer 44, and that s 55(2)(b) of the Evidence Act provided a basis for the evidence’s relevance.
71․The Special Magistrate gave himself the Liberato v The Queen [1985] HCA 66; 159 CLR 507 (Liberato) direction. The Special Magistrate summarised the evidence of the witnesses, including that of the appellant. He then turned to his findings.
72․The Special Magistrate found the complainant to be a credible witness. He described her as lucid, noted that she answered questions as they were asked and paused to remember details. He considered that her account of events in the lead up to the incident was plausible and consistent with that of her son and the appellant. He noted there were some details that “did not sit comfortably with other evidence”. Despite that, the Special Magistrate considered that she did not exaggerate the choking and was clear about what she could feel, although she could not see behind her. He considered she did not add any details of which she could not have been aware. He noted that while she described her neck being grabbed from behind, she admitted she did not know how it had occurred or where the appellant’s hands were, and her acceptance that her t-shirt may have been pulled. He noted she described the pulling of the handbrake as a separate but overlapping act to the choking, saying that the handbrake pull was “in the middle” of the “choking”. The Special Magistrate considered the complainant’s estimate as to the timing of the incident to be unreliable noting it was inconsistent with MB’s evidence and the overall length of the drive.
73․The Special Magistrate found MB to be a generally credible witness. He found his demeanour in the police interview was calm and measured. He gave detailed descriptions and admitted parts that he was unsure of or that were hazy or foggy. He considered that MB’s description of the appellant reaching around and choking the complainant, was “detailed, repeated and consistent”. The Special Magistrate noted, however that MB did not report an actual choke in the police interview; rather, an attempted choke after the hair pulling. The witness alternated in his evidence between saying that he had seen the complainant’s hair or neck grabbed. The Special Magistrate identified a further inconsistency, with the witness saying in his recorded interview that the complainant slammed on the brakes and in his evidence at the hearing, that the appellant grabbed the handbrake. He found that MB made reasonable concessions, in particular conceding that he may have exaggerated some aspects, apart from the attack on the complainant. He noted however that MB initially reported to Ms H that the appellant was “hitting” the complainant rather than “choking” or “pulling hair”.
74․The Special Magistrate found Ms H to be an honest and credible witness but that she could only relay what MB had told her immediately after the incident.
75․The Special Magistrate found the appellant’s evidence to be self-serving. The appellant had put forward a version where his motive was to stop the vehicle from being driven erratically and that he was concerned for passenger safety. The Special Magistrate noted that while the appellant’s evidence appeared disingenuous, the actions he described taking in the vehicle were not physically impossible or improbable.
76․The Special Magistrate determined that he could not rely on the photographs of the complainant’s neck to draw any inferences regarding the degree of force used, or anything else about the contact with the complainant.
77․The Special Magistrate was satisfied that the complainant experienced some kind of contact from the appellant that could be considered choking within the meaning of s 27 of the Crimes Act, being to “apply pressure to any extent to the person’s neck”. He considered this inference could be drawn from the complainant and MB’s evidence and the positive adoption as part of the appellant’s case that she had felt her shirt being pulled back and that the appellant’s hand was at the back of her neck. The appellant submitted that the contact was not intentional choking.
78․The Special Magistrate was not satisfied beyond reasonable doubt that the physical contact that occurred was an intentional choking as required by s 28 of the Crimes Act. He found that while pressure had been applied to the neck, it could not be established that it was applied intentionally. The charge of choking was dismissed, and the Special Magistrate turned to the alternate charge of common assault. He was satisfied that there was an intended use of bodily force on the complainant without her consent, by the appellant grabbing either her neck, hair or clothing. He then moved to consider whether that contact was unlawful and moved to consider the role of self-defence, applying the test from Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645 (Zecevic).
79․The Special Magistrate rejected that the contact the complainant experienced, consistent with the forceful pull MB observed, was an unintentional product of the appellant grabbing the headrest as he pulled the handbrake. He also rejected the alternate explanation offered by the appellant that he accidentally pulled on the complainant’s seatbelt and that caused the choking sensation. The Special Magistrate inferred intention, referring to Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 (Fagan), from both the nature of the physical action and the context of the appellant having been told they were going to the police station and the escalating argument in which it occurred. He noted that while motive is not necessary to infer intent, he considered that the evidence established that the conduct of the appellant occurred as a result of anger rather than “a concern for passenger safety”.
80․The Special Magistrate rejected the appellant’s account of events and noted he was then required to consider the prosecution case and determine whether he was satisfied beyond reasonable doubt. He recorded that he was so satisfied and found that there was an application of physical force to either the complainant’s body, neck, hair or clothing by the appellant’s actions and that it was done intentionally.
81․The Special Magistrate found that the appellant had failed to discharge his evidential burden in relation to self-defence and the intentional physical contact he made with the complainant. He further found that even if the appellant had discharged that burden, the prosecution had excluded reasonable grounds for any such belief, beyond reasonable doubt. The Special Magistrate found that the evidence did not demonstrate that there were reasonable grounds for a belief on the part of the appellant that he needed to apply physical force to the complainant as an act of self-defence. He noted the intentional act of making contact with the complainant was more likely to have threatened safety, rather than to have ensured it.
82․Accordingly, the Special Magistrate found the offence proved and the appellant guilty of aggravated common assault.
Determination
The standard of review
83․The Supreme Court’s jurisdiction and conduct on appeals against convictions on summary offences from the Magistrates Court is governed by div 3.10.2 of the Magistrates Court Act 1930 (ACT) (the MCA), namely ss 207-219. This appeal is brought pursuant to ss 207-208 and is by way of re-hearing: Alexander v Bakes [2023] ACTCA 49 (Alexander). On a re-hearing, “the Supreme 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”: s 214 of the MCA.
84․The standard of review to be applied in conviction appeals from the Magistrates Court brought under s 208 was clarified and confirmed in Alexander at [18]:
…[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.
85․As Baker J set out in Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 at [37], where there is a complaint that the verdict is unreasonable, the Court must “ask itself whether it thinks that upon the whole of the evidence it was open to [the tribunal of fact] to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen [1994] HCA 63; 181 CLR 487 at 49 [7] (per Mason CJ, Deane, Dawson and Toohey JJ) (M v The Queen). As Baker J further observed in Ji v Stone [2023] ACTSC 54 at [153] “there may be little difference in the practical outcome between the two formulations” and at [154] whether “applying the test in M v The Queen or applying “rehearing” principles in the Court’s determination of whether factual error is established, the Court will be required to perform its own assessment of the evidence, but in doing so, the Court must also take into account any advantage that the tribunal of fact had in the proceedings below”.
86․If error is established the Court is obliged to make its own findings and to formulate its own reasoning based on those findings: Robinson Helicopter Company Inc v Mc Dermott [2016] HCA 22; 90 ALJR 679 at [43].
87․Any consideration of error in a Magistrate’s decision must take into account the pressures of the Magistrates Court: Alexander at [21]. Appeals by way of re-hearing require 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”: Alexander at [13], citing Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551 [18] and Lee v Lee [2019] HCA 28; 266 CLR 129 at 148-149 [55]-[56]. The onus is on the appellant to identify and demonstrate error in the Special Magistrate’s findings: Alexander at [22].
88․I must bear in mind the advantage that the Special Magistrate had in the environment of the hearing given the nature of the case, in particular when assessing the credibility of all the witnesses. I do so, 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.
Fresh evidence
89․The appellant sought to adduce fresh evidence, namely, a photograph of the complainant at a time he identified as being prior to the incident. He submitted that the photograph demonstrated the “natural complexion” of the complainant's neck. No application in proceeding was filed by the appellant seeking the admission of the photograph. Given the appellant’s unrepresented status and to facilitate the real issues to be ventilated, the respondent fairly did not oppose leave being granted for the application to be made orally at the hearing, though ultimately opposed the admission of the evidence.
90․The photograph the appellant wished to rely on was on his own mobile phone. He did not have a copy of the photograph. He produced his phone with the photograph on the screen to the Court. He submitted that the photograph was of the neck of the complainant and that it demonstrated the “normal” appearance of her neck including some redness.
91․The point the appellant attempts to make with the photograph is that the red marks on the complainant’s neck as depicted in photographs relied on by the prosecution in the hearing before the Special Magistrate were consistent with the usual appearance of the skin around the complainant’s neck.
92․Sections 214(3) and (4) of the MCA provide as follows in respect of the adducing of further evidence on an appeal from a decision of a Magistrate:
(3)In an appeal to which this section applies, the Supreme Court must—
(a)if it considers it necessary or expedient to do so in the interests of justice—
…
(iii) receive the evidence, if tendered, of any witness; and
(b)receive evidence with the consent of the parties to the appeal.
(4)If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if—
(a)it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and
(b)the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
93․The respondent did not consent to the tender of the photograph and argued that there was a question as to the credibility and admissibility of the photograph in the proceedings below. The appellant conceded that he had drawn the photograph to the attention of his legal representative in the proceedings below who did not “seem to think that it was important”. That said, the transcript records that the complainant was asked questions in cross-examination about her “patchy complexion” and her “distinct skin tone”. The complainant disagreed that there was any “difference” between the skin on her neck and the skin on her face.
94․There was nothing in the appeal by which the authenticity of the photograph could be measured. The photographs of the complainant’s neck tendered by the prosecution at the hearing do not reveal the complainant’s face. It was not possible to look at the photograph the appellant wished to rely upon in the appeal and definitively determine that it was indeed a photograph of the complainant.
95․The appellant declined the opportunity offered to him at the appeal hearing for an adjournment of the appeal to enable him further time to prepare.
96․The Special Magistrate while referring to the photographs of the complainant’s neck, made clear what is plain from looking at those photographs and that is, that the discolouration of the images themselves makes it difficult to draw any conclusion as to the nature and extent of any injury or marking captured in the image, stating:
I find myself unable, in the absence of any medical evidence to draw any significant, reasonable inference about the degree of force or other circumstances about the contact involved from those photographs.
97․This finding demonstrates that the Special Magistrate, correctly in my view, did not place any weight on the photographs of the complainant’s neck tendered in the prosecution case when determining the outcome.
98․The appellant, while making complaint about the use the Special Magistrate made of the photographs, does not appear to have appreciated that he did not place any weight on the photographs in making the finding he did as to guilt. In those circumstances, leaving aside the significant question as to the authenticity of the photograph, whether the photograph the appellant now wished to rely upon demonstrates anything at all about the complainant’s neck is of no consequence in the appeal.
99․I am not satisfied that the evidence would afford any ground for allowing the appeal and accordingly, I do not consider it necessary to receive the evidence on the appeal.
Grounds of appeal
Ground One: A miscarriage of justice occurred as the appellant’s legal representative failed to pursue the case as he requested
100․The appellant complains that a miscarriage of justice occurred as the appellant’s legal representative failed to pursue the case as he requested. This is a complaint made in written submissions and is not supported by any evidence on affidavit. There is some real difficulty for the appellant establishing this ground in the absence of any evidence in support of it.
101․In written submissions the appellant identified two matters in support of this ground. First, the appellant described instructing his solicitor to ask specific questions of the complainant during cross-examination in relation to their living arrangements and the details of an argument between them, the night prior to the incident. The appellant submitted that this line of questioning would demonstrate to the Court “just how hurt and better (sic) her feelings towards [him] were at the time of the incident” and that she never intended to go to the school when she left the residence in the vehicle.
102․Secondly, the appellant identified that a request for his legal representative to subpoena Child and Youth Protective Services (CYPS) in relation to records held regarding the appellant was not fulfilled.
103․In relation to questions put to the complainant in cross-examination, the transcript of the complainant’s evidence reveals that she agreed in cross-examination that there had been an argument between them the day before because she did not want the appellant living with her anymore. This was consistent with what she told police in her evidence in chief interview on the day of the incident. The appellant gave evidence that there was no argument between them the night before, describing it instead as “some emotional words”. The Special Magistrate made no reference to any conflict between the parties the day before the incident in his reasons for decision.
104․Further, the complainant gave evidence in response to questions from the prosecutor and under cross-examination about her intention of driving to the police station. The complainant agreed that she had initially intended to drive to the school but determined instead to drive to the police station. She described forming the view that she would not take the appellant to the school in the “state” he was in and “that the best possible solution” was for her to say that she was “going to go to the police station”. The appellant gave evidence that while in the vehicle the complainant said to him “actually, I’m going to the police – taking you to the police or we’re going to the police station”. The complainant did not ever deny that she initially told the appellant she was driving to the school. She did not deny that she told him she was going to the police station. She did not deny there was an argument between them. Indeed, she volunteered to police that she did not want the appellant living at the residence. It is not clear from the submissions of the appellant the significance of the complainant not ever having the intention to go to the school or of the argument between them the previous evening. In any event, the complainant gave evidence in relation to both of those matters and was asked questions in cross-examination about both matters.
105․The appellant submitted that the CYPS records would have demonstrated that he had not been charged with offending against his son in the past. The appellant connected this to evidence from the complainant and their son that he had been violent in the past and as a result child protection authorities had been involved. The appellant claimed child protection authorities had “cleared him of any wrongdoing”. The appellant was provided the opportunity at the outset of the appeal hearing to adjourn the appeal for the purposes of pursuing a subpoena to child protection authorities. He declined that opportunity. Of course, that the appellant had not been charged with an offence for being violent toward his son did not necessarily undermine evidence from the complainant and their son that the appellant had been violent towards them sometime in the past. Similarly that child protection authorities had “cleared” him in relation to particular allegations of wrongdoing did not necessarily mean that the complainant and their son were fabricating evidence of violence directed toward them in the past. The Special Magistrate made no reference to any involvement of CYPS in the family in the reasons for his decision.
106․The appellant did not produce any evidence at the appeal regarding the failure of his legal representative to pursue aspects of his case or a particular line of questioning as instructed by the appellant. Further, the appellant did not waive legal professional privilege and accordingly there was no affidavit evidence from his legal representative in relation to this ground.
107․A miscarriage of justice may occur where defence counsel fails to call relevant evidence: TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at 134 [29].
Even though there is no defect or irregularity in a trial, a question may arise whether there was a miscarriage of justice…[t]he question may also arise if counsel fails to call evidence that was available or fails to elicit evidence in cross-examination. In that situation, it has been customary to focus on the competence of defence counsel, it being said that there must be "flagrant incompetence", an "egregious error", "extreme conduct" or "significant fault".
108․The appellant has not developed this ground of appeal to any real degree. The details included in his written submissions in support of this ground do not, on any view, describe conduct on the part of his legal representative that would even approach conduct considered to be “flagrant incompetence” or “egregious error”. Indeed the matters the appellant relied on, that he brought to the attention of his lawyer, are matters that, in the scheme of the evidence, could have been considered largely irrelevant to the issues the Special Magistrate was required to resolve. On the matters raised under this ground I am not satisfied that a miscarriage of justice occurred as a result of any failing on the part of the appellant’s legal representative.
109․This ground of appeal has not been established.
Ground Four: an error of law occurred when the Special Magistrate admitted evidence pursuant to s 78 of the Evidence Act
110․The appellant submitted that the Special Magistrate’s decision was attended to by an error of law, namely that some of MB’s evidence was admitted under s 78 of the Evidence Act. The evidence consisted of three answers MB gave in the evidence in chief interview he participated in with police:
111․The relevant answers were:
A 44: And I could tell that he was starting to – he was going to get violent.
A 46: He seemed like he – it looked like he was possibly thinking about hitting me.
A 65: Because he has been very violent in the past.
112․The appellant submitted that the Special Magistrate misused that evidence as tendency evidence, to find that the appellant’s actions were motivated by anger rather than a genuine “concern for passenger safety”.
113․The Special Magistrate’s reasons for the ruling regarding the evidence, is extracted above at [67]-[70].
114․The appellant referred only to s 78 of the Evidence Act in his submissions on this ground. The Special Magistrate also relied on s 55(2)(b) of the Evidence Act. Those sections provide:
55Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to present evidence.
78Exception—lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if—
(a)the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b)evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.
115․The Special Magistrate determined that answers 44 and 65 were admissible pursuant to s 78 as they were based on what the witness saw, heard or otherwise perceived about the event and they were “necessary to obtain an adequate account or understanding of the person’s perception of the matter or event and I accepted that evidence of the child’s opinions was necessary in the form given as it was the only practicable way for witness to describe what he was observing about the defendant’s behaviour” citing Lithgow City Council.
116․The Special Magistrate ruled that answer 46 was admissible on a “non-tendency” basis pursuant to s 55(2)(b) because it was relevant to the admissibility of answer 44, providing a basis for the opinion expressed in that answer. The Special Magistrate specifically recorded that the evidence, once admitted, could not be used as “tendency evidence”.
117․The appellant submitted that it was an error of law to admit the evidence as “lay opinion” without identifying the nature of the error. Read carefully, the appellant’s submissions detail that the substance of his complaint under this ground is really about the use of the evidence once it was admitted. The appellant submitted that the “Special Magistrate then applied these statements as tendency evidence by declaring my actions where [sic] a result of anger rather than concern for passenger safety”.
118․Nonetheless, I will address the admissibility of the three answers given by MB. Section 78 provides an exception to the prohibition on opinion evidence found in the ‘opinion rule’ at s 76. The exception in s 78 is limited in two ways. First, the evidence must be ‘necessary’ in the sense contemplated by s 78(b) and second the evidence must be relevant as defined in s 55; that is it could rationally be probative of a fact in issue.
119․The fact in issue was the occurrence of the choking/assault event. MB was an eyewitness to the event. His evidence as to the conduct and demeanour of the appellant could rationally affect (directly or indirectly) the assessment of whether or not the appellant engaged in the conduct making up the choking event. The evidence was therefore relevant. Like the Special Magistrate, I agree that the opinion expressed by MB in answers 44 and 46 were based on what he saw, heard or otherwise perceived and that they were necessary in order to adequately understand his perception of the event. As the Special Magistrate observed, this approach is consistent with what the High Court held in Lithgow City Council. There was no error of law in relation to the admission into evidence of these answers.
120․Answer 65 was admitted on the basis that it provided a foundation for the opinion expressed in answer 44. That is, that the witness had in the past observed the appellant become violent, was necessary to understand the evidence that he “could tell” the appellant was going to “get violent”. This was evidence rationally probative of a fact in issue.
121․The Special Magistrate’s resort to s 55(2)(b) was unnecessary. In any event s 55(2)(b) is not a standalone pathway to relevance. It makes plain that evidence that relates only to the admissibility of other evidence is not irrelevant.
122․The answer at 65 was required to be relevant pursuant to s 55(1). It was so relevant because it was tightly intertwined with the opinion expressed at answer 44. The Special Magistrate was not wrong about that. The answer at 65 could rationally affect, indirectly, a fact in issue because it provided important context to the opinion expressed by MB as to what he was directly observing, and what he “could tell”, about the appellant in the moments immediately preceding the choking event.
123․Turning to the complaint as to the use of tendency reasoning, the relevant portion of the Special Magistrate’s reasons are:
Although motive is not, strictly speaking, necessary to infer intent, the evidence of [MB] that he first observed his father becoming angry and going to get violent and then say, “why the fuck are we going to the police station” and about five seconds later the choking incident occurred reinforces the conclusion that this conduct occurred as a result of anger rather than a concern for passenger safety.
124․I observe first that there is nowhere in the reasons of the Special Magistrate where it could be said that he engages in tendency reasoning. Rather, the portion extracted above reveals that the Special Magistrate relied on the direct observations of MB to form a view that the appellant was motivated by anger. This view informed his assessment of the appellant’s claim that he acted as he did out of a concern for safety arising from the way the complainant was driving. This is not an impermissible use of the evidence he properly determined to admit. This is not an example of tendency reasoning. It is a permitted use of direct evidence of what a witness saw, heard or otherwise perceived.
125․The Special Magistrate was correct to admit the evidence. He did not impermissibly engage in tendency reasoning. This ground of appeal has not been established.
Grounds two, three, five and six as particulars of the verdict being unreasonable
126․As proposed above and at the risk perhaps of some repetition, I will deal with grounds two, three, five and six as particulars relied upon by the appellant in seeking to demonstrate that the verdict was unreasonable. The written submissions filed by the appellant were lengthy. Where possible I have attempted to distil the matters he raised in support of the issues he identified. I consider that I have addressed each issue upon which the appellant relied.
Ground Two – insufficient evidence
127․This ground alleges that there was “insufficient evidence to justify the conviction” on the charge of aggravated common assault (family violence).
128․In support of this ground, the appellant relied on the consideration of the photographs of the complainant by the Special Magistrate, concessions said to have been made by the complainant during her evidence and the credibility of MB.
129․First, the photographs of the complainant’s neck. The appellant submitted that what might have been considered “abrasive marks” in the photographs of the complainant’s neck were in fact “the natural blush of red-headed fair complexion woman (sic)” and that “abrasive marks” could not be “produced by means of grabbing the neck and/or hair and/or clothing of the complainant”.
130․In support of his submission that the Special Magistrate contradicted himself in relation to reliance on the photographs, the appellant points to this part of the Special Magistrate’s reasons:
…[T]he photos tendered into evidence, these provide some evidence of physical contact with the complainant’s neck and of resulting reddish marks to both sides, but not of the precise manner in which these marks may have been eventuated. This evidence is consistent more with the complainant’s account of having been choked from behind by means of a t-shirt being pulled back with force so that the front collar constricted her neck, than with either pulling of the hair alone or an unintentional grabbing of her seatbelt, which would not, in ordinary circumstances give rise to any abrasive contact on both sides of the throat or neck. However, the difference in colour giving rise to the inference of abrasive marks was only very slight as between the complainant’s throat and other parts of her face and shoulder area. It was challenged in cross-examination and thus I find myself unable, in the absence of any medical evidence to draw any significant, reasonable inference about the degree of force or other circumstances about the contact involved from those photographs.
131․The appellant highlights a later part of the reasons where the Special Magistrate said: “I am satisfied that this evidence establishes that there was an application of significant physical force to the body, neck and/or hair and/or the clothing of the complainant by the defendant’s action”.
132․The characterisation of the Special Magistrate contradicting himself misunderstands his reasons. Immediately prior to making the finding I have just extracted above at [130], the Special Magistrate stated, “even where I reject the defendant’s account of events, I must still be satisfied of the prosecution’s case on its evidence”. The Special Magistrate in canvassing the evidence before him, had already determined that the photographs of the complainant’s neck were of no assistance to him not only in relation to an assessment of any force that might have been used but also more generally as to the “other circumstances about the contact involved, from those photographs”.
133․The Special Magistrate did not contradict himself. Read as a whole, the reference in the reasons to the “evidence” that established an application of significant force, did not include the photographs, having already determined he could not rely on them in relation to the “contact involved”.
134․I turn now to the concessions made by the complainant during cross-examination that the appellant highlighted as part of this ground. The complainant agreed in cross-examination that she felt her shirt being pulled back and the appellant’s hand between the back of her head and the headrest. The complainant also agreed that the appellant “pulled himself forward and pulled on the handbrake” and that “the vehicle came to a screeching halt”.
135․Apart from highlighting the concessions, the appellant did not elaborate as to the significance of them either in oral or written submissions. I infer from their inclusion under this ground that the appellant relies on the concessions as demonstrative of the unreasonableness of the verdict.
136․The transcript of the appellant’s evidence before the Special Magistrate demonstrates that the appellant’s version of events was, effectively, that the complainant was driving in such a manner as to cause him fear for their safety, and accordingly he determined that he needed to cause the vehicle to stop. In order to do that, he leant forward from the back seat of the vehicle to pull on the handbrake and in doing so may have made contact with the complainant or may have pulled on the seatbelt she was wearing.
137․The concessions made by the complainant during the course of cross-examination were not fatal to the prosecution case. Indeed, they were to a large degree consistent with the evidence the complainant had already given in examination in chief. The complainant did not ever positively assert a specific mechanism or action on the part of the appellant when he made contact with her neck. This is consistent with the appellant’s position in the back seat of the vehicle and with the complainant driving the vehicle. None of the complainant’s concessions as identified by the appellant were inconsistent with the findings the Special Magistrate made with respect to the mechanism or the action by which he was satisfied that the assault occurred.
138․Next I turn to the assertion that the witness MB was inconsistent in his evidence. I infer from this assertion that the appellant contends that the inconsistencies in his evidence were such that his version could not be relied upon.
139․The Special Magistrate was alive to some inconsistency in the evidence of MB and observed:
In re-examination, [MB] clarified that he was not exaggerating the attack on his mother, including by having him having his arms around his neck, thereby reestablishing his credibility. However, there is inconsistency between what he says the defendant did during the incident, ranging from hitting, as told to Ms H, then pulling hair and an attempt to choke as told to the police officer in the recorded interview and then actual choking and/or pulling hair in his evidence in court. That inconsistency negatively affects the credibility of the choking claim.
140․As I understand the appellant’s submission, he argues that once the Special Magistrate found inconsistencies in MB’s evidence this should have resulted in a wholesale rejection of his evidence. I do not agree.
141․The appellant submitted that MB was too emotional to “discern any of the appellant’s actions” during the incident. The appellant relies on the evidence given by himself at the hearing that MB was “hyperventilating and crying, howling in the front seat of the car”, submitting that the evidence of Ms H corroborates his account in this regard.
142․The Special Magistrate as part of his task was entitled to reject some aspects of the evidence given by a witness, and rely on other aspects that he considered reliable. This is precisely the approach he took to MB’s evidence. The Special Magistrate considered the differences in the specific detail provided by MB as to the nature and extent of the contact made by the appellant with the complainant, as directly relevant to the choking charge. It was not only open to the Special Magistrate to make that assessment; the assessment was accurate.
143․The choking charge required the prosecution to establish a particular kind of conduct and a particular state of mind on the part of the appellant. The assault charge was able to be established by reference to a broader category of physical contact. Where MB was inconsistent as to the mechanism of that contact, the Special Magistrate was entitled to have doubt about the choking charge. The inconsistency identified in MB’s evidence was directly relevant to proof of the mechanism of contact and therefore, proof of the choking charge. The inconsistency did not necessarily result in the evidence of MB being entirely rejected.
144․MB conceded in cross-examination that he might have exaggerated “a thing or two” when he spoke to police, though maintained he had told the truth. He specifically agreed with the proposition that when he told police his mother slammed on the brakes this was something he “filled in some gaps” about as he did not know that to be what had actually occurred. MB maintained in re-examination that he had not exaggerated when he described the appellant putting his hands on the complainant’s neck. The transcript reveals that MB consistently described, even when he conceded aspects of his evidence that may not be entirely accurate, that the appellant made physical contact with the complainant in the area of her head or neck while she was driving the vehicle. He was entirely unmoved about that aspect of his evidence and unequivocally rejected that he was exaggerating when he described the appellant putting his hands around the complainant’s neck.
145․The evidence established that MB was distressed by the time he arrived at Ms H’s residence. He described as much, so too Ms H. MB described crying in the vehicle and generally being upset. He did not agree that he was “hyperventilating”, whatever that might have meant to him. It must be borne in mind that by the time he arrived at Ms H’s home, on any version of events, he had been suspended from school, he had experienced at least some conflict between his parents while they were all in the vehicle, the vehicle had come to an unexpected stop and he had seen his father make some physical contact with his mother. He had fled the vehicle and the scene. On any version this is entirely consistent with him being scared. It is unsurprising in those circumstances that by the time he arrived at Ms H’s residence he was in a state of real distress.
146․The appellant submitted “based upon the heightened emotions of the witness at the time of the incident I have to challenge his ability to discerne (sic) any of the appellants actions”. MB was in the front passenger seat during the incident. It was not suggested to him that because he was upset or for some other reason he was not able to observe what he described observing. It was not suggested to him that he had fabricated his evidence. It does not follow, as the appellant asserts, that arising from his level of emotion, MB’s evidence as to what he observed in the vehicle was incredible or inherently unreliable. MB made appropriate concessions. He maintained consistently a version of events that had the appellant making physical contact with the complainant.
184․When asked to detail the incident to police in the evidence in chief interview conducted with him on the day of the incident, MB described the complainant being pulled forcefully by her hair, by the appellant, so that her head was flush with the headrest saying, “I could tell that my mum was in pain”. The evidence in chief interview records this exchange:
Police: …You mentioned before some choking?
MB: Yeah, kind of, with the hair. When he was pulling her back I could tell that like – and then it – like, it looked like he tried to get her in a headlock.
Police: Yep.
MB: But I don’t think he succeeded in that. I’m not sure.
Police: Yeah right.
MB: It’s very hazy.
Police: Can you tell me more about that headlock, how he tried to do that?
MB: Um, when he had her hair, I think he kind of let go with one arm and tried to, like, bring it around her neck.
Police: Yep.
MB: But then again I am not sure. Like, I’m – that could be – not what happened.
Police: Okay.
MB: I’m just – it’s very, um – it’s very foggy.
185․Read in context, this is not an expression of doubt as to whether contact occurred, but rather doubt as to the precise action the appellant engaged in. MB describes “already being out” of the vehicle as it came to a sudden halt while the physical contact was occurring. This description is consistent with an incident where the acts occurred in quick succession, as the Special Magistrate found they did. MB conceded that when he said it was his mother who slammed on the brakes of the vehicle, that he had effectively assumed that to be the case because he did not know that she had actually done so. His version of events was not carefully crafted so as to account for everything that occurred. He did not ever say with certainty that it was the appellant who pulled on the handbrake, for example, and he consistently accepted that his memory of specific detail was not likely to be accurate.
186․In cross-examination MB agreed that he had initially described the appellant pulling the complainant by the hair and said, “but thinking back to it now, I think it might have been the neck but like I said at that point I was already out of the vehicle so I’m – I’m not too sure”.
187․The description Ms H ascribed to MB, of the appellant “hitting” the complainant must be viewed in context. MB was 12 years old at the time of giving evidence. The incident had occurred three months earlier. When he interacted with Ms H, he had just fled the scene of the incident he described as making him feel “terrified”, arriving at her residence in a state of distress. The first words to Ms H were a request for police assistance, indicating his focus was on getting the assistance he considered the complainant required, and not on ensuring that he was accurately describing what he had observed. In any event, “hitting” as a description of the incident is not inconsistent with an assault occurring. MB was consistent with the version attributed to him by Ms H in that he included in his evidence in chief interview the observation that the appellant had “attacked” the complainant.
188․As I have already identified, MB was unequivocal in re-examination that any exaggeration in his evidence did not extend to when he described seeing the appellant put “his hands around” the complainant’s neck.
189․The concessions MB made were, in my view, to his credit. They revealed a willingness to accept that he was, or may have been, mistaken about aspects of his memory of the event. His evidence did not demonstrate an investment in an outcome that saw the appellant found guilty of an offence to the extent that he doggedly maintained a version in the face of reasonable challenge.
190․The Special Magistrate recognised the inconsistencies in the descriptions of the incident by MB (see [139] above). Those inconsistencies led to the acquittal on the choke charge. The inconsistencies in the precise detail when MB consistently maintained that the contact occurred, did not preclude the use of his evidence with respect to the common assault. It is a routine part of the role of a fact finder to carefully sift through the evidence of witnesses and determine those aspects that can be relied upon as to the facts in issue, and those aspects that are unreliable. A determination that aspects of a witness’s evidence cannot be relied upon, does not always arise from a finding that a witness has been untruthful. Indeed, in this instance it is clear the Special Magistrate, having observed MB as he gave his evidence, considered MB to be a reliable witness to the extent that he described a forceful, intentional application of force by the appellant to the complainant. A review of the evidence, in my view, reveals no error in that approach.
191․For completeness, I observe that there was no evidence as to the nature of the complainant’s hair that would allow a conclusion to be drawn that it was impossible for it to have been used as a tether for the appellant to have pulled her back. That proposition was not put to her. As a matter of common sense, even thin, shoulder-length hair could be pulled and held with force, particularly if the person was not expecting the contact or did not see it coming and was unable to evade or resist the force.
192․There was no error in how the Special Magistrate dealt with the credibility of MB.
The complainant’s credibility
193․The Special Magistrate made these findings with respect to the complainant:
I found [the complainant] to be a credible witness. She appeared to be lucid, answered questions as they were asked, and paused to remember details such as the sequence of events. Her account of the events leading up to the incident in the vehicle was plausible and mostly consistent with other evidence, such as [MB]’s account, and to a large extent, consistent also with the evidence of the defendant – that is, as to the lead up to the incident. However, there were some details that she gave that do not sit comfortably with other evidence.
As to the critical incident, she described her neck being grabbed and being choked from behind but admitted that she did not know exactly how this had occurred, suggesting that the defendant had pulled her t-shirt so that it constricted her throat. She did not mention her hair being pulled. However, she described the defendant pulling the handbrake as a separate event, though overlapping with the choking. She did not, in my view, exaggerate the choking event she experienced, and did not claim to have lost consciousness or her breath, nor did she draw attention to any marks on her neck. She was clear about what she felt, though could not see, and did her best to describe being choked from behind without adding details of which she could not have been directly aware.
In particular, she stated in her evidence-in-chief that she did not know where the defendant’s hands were while she was being choked. However, as to the length of time that the choking incident lasting (sic), her evidence that it was for a couple of minutes is simply not credible as it is inconsistent with both the account given by [MB] and the map, Exhibit 5, which indicate that the entire trip was no more than one minute. Further, although the choking and handbrake pull were separately described, the complainant’s evidence was that the latter – that is, the handbrake pull was, ‘In the middle of it – him choking me, and then he pulled the handbrake on’ – transcript page 23, so that the actions were performed partly at the same time.
194․The appellant relied on the following matters to advance a submission that the complainant’s evidence was so lacking in credibility as to be entirely unreliable:
(a)in her evidence in chief interview with police, the complainant stated she never intended to go to the school and had intended to stay somewhere else that evening due to a fight between the appellant and herself. The appellant notes that he only got into the vehicle for the purpose of attending the school;
(b)the complainant claimed that MB took a knife to school because the appellant instructed him to do so;
(c)the complainant “failed to acknowledge any events which would paint her in a negative light” being that the dogs were unrestrained and jumping around the vehicle, that she was driving erratically and was distracted, that the appellant had asked her to pull over three times, and that MB was “hysterical”;
(d)the complainant claimed the choking incident lasted a couple of minutes, an impossibility due to the overall length of the vehicle trip; and
(e)the complainant agreed that she had told the prosecutor the day before the hearing that she felt the appellant’s hands around her neck and then gave evidence at the hearing that she felt her shirt being pulled backwards.
The destination
195․It is unclear the significance the appellant sought to make of the complainant’s evidence that when she was in the vehicle with the appellant and MB she had no intention of driving to the school. The appellant submitted that if he had known that she did not intend to drive to the school, he would not have gotten into the vehicle with the complainant. The appellant’s view in relation to that is not material to the facts in issue. The fact is, he did get into the vehicle. He appears to assert that the complainant not revealing to him her real intention is a reflection of her capacity for dishonesty. In the circumstances of the explanation she gave, I do not agree.
196․The complainant’s evidence demonstrates, consistent with the appellant’s version, that she did not want him in the vehicle with her and MB. The complainant told police that before she got the message from MB’s school about him taking a knife to school, it had been her intention to collect MB from somewhere other than the residence and stay somewhere else that night, because the appellant had refused to leave the residence despite her requests for him to do so.
197․Her attempts to dissuade the appellant from getting in the vehicle are consistent with the appellant’s evidence that she said to him “No, you can’t come, I don’t want you to come”. The appellant volunteered in his evidence that after she said this he reached into the vehicle and turned the ignition off so he could get into the vehicle. The complainant described this action as the appellant “ripping the keys out of the ignition”. The appellant stated in his evidence that “he was not taking no for an answer”.
198․The complainant readily conceded during her evidence in the proceedings that it was her intention to drive to the police station because she wanted the appellant out of her home and had asked him to leave. This is consistent with what she said on the day of the incident to police: “I don’t want him there. And I’ve, I’ve asked him to leave numerous times”. The complainant told police that when she said she was going to drive to the school, she was “just saying that” and that when the appellant said he would come along, she tried to dissuade him. Her evidence demonstrates that once the appellant insisted that he was coming and got into the vehicle, and she began to drive, she determined to go to the police station, telling police on the day “I feel like I can’t get out of it without getting you guys involved, and I really didn’t want to do that”.
199․In her evidence in the proceedings, the complainant explained that her purpose in driving to the police station was “just to try and get him to realise that I don’t really want him to be with me and MB, and I have asked him to leave and he just didn’t want to leave so –". It must be borne in mind that the complainant explained that she determined to drive to the police station after the appellant insisted on getting in the vehicle by turning off the ignition while he was outside of it. In his own words he was not “taking no for an answer”. This is also after the complainant had repeatedly asked him to leave the residence.
200․The complainant explained that she was not going to take the appellant to MB’s school in the “state” he was in. Consistent with the complainant’s evidence, MB described the appellant as “being very aggressive” and said that the complainant had been ”trying to get rid of him for a long time but she is terrified of him”.
201․It is a matter of significance in my view, that on all versions it is when the complainant told the appellant that she was going to the police station and not the school, that he began to demand that she stop the vehicle. On the appellant’s version the complainant’s “erratic” driving commenced as soon as he got in the vehicle. The appellant said in his evidence that he said to the complainant, after demanding that she stop the vehicle, “pull the fuck over”, though did not accept that he was ever “angry” during the incident.
202․The evidence establishes that the appellant was angered when the complainant communicated to him that she was driving to the police station. The complainant told police that she was “stupid” to have revealed her intention to the appellant and that this is what prompted him to assault her. MB’s evidence was that the appellant was demanding to know why they were going to the police station, swearing at the complainant and being “very aggressive”. The Special Magistrate was unsurprisingly satisfied that the appellant was in a state of anger when he engaged in the act of pulling on the handbrake and applying intentional force to the complainant.
203․I do not consider that the complainant’s intention of driving to the police station after telling the appellant that she was going to drive to the school, is a matter that undermined her credibility to any significant degree. In my view, her conduct is explained by her desire to leave the appellant and his insistence on getting in the vehicle.
The complainant stating that MB took a knife to school because he was instructed to do so by the appellant
204․The appellant disputed that he instructed MB to take a knife to school. The complainant told police that MB explained he did so because the appellant told him it was “alright”. MB said in his evidence that the appellant had suggested to him that he put it in his bag because he did not want to leave it on his desk. In her evidence, the complainant said when asked about the knife in cross-examination “I think he – he – apparently he was speaking to [the appellant] the night before and he put the knife in his bag to appease [the appellant]. I’m not sure if he – did not take it out at school, but he opened his bag and another student actually seen (sic) the knife”.
205․The appellant said in his evidence when describing what occurred in the vehicle, “I still didn’t know at this stage that he said that I should – I said he should take the knife to school, which is ridiculous”.
206․It is clear that the complainant was repeating what MB had told her about the circumstances of the knife being in his bag at school. She was not positively asserting that the appellant had instructed MB to take the knife to school but rather repeating what MB had told her about that. MB’s evidence was consistent with that.
207․The fact of MB taking the knife to school was not a fact of any significance to the matters to be determined by the Special Magistrate. It was, at its highest, a peripheral issue. In any event, the complainant’s evidence about it did not undermine her credibility.
The refusal by the complainant to acknowledge matters that painted her in a “negative light”
208․The appellant identified the following matters as examples of the complainant’s failure to acknowledge matters detrimental to her credit. Firstly that the dogs were unrestrained, secondly that she was driving erratically and distractedly, thirdly that the appellant had asked her to pull over three times prior to pulling the handbrake and finally that MB was “hysterical”.
209․The complainant agreed that the dogs were unrestrained in the vehicle. She did not agree that they were “jumping around”. MB said he was not sure about the dogs jumping around; he did not see them doing that and said that they usually “stay pretty still”. I do not consider this to be a matter of any significance to the finding the Special Magistrate ultimately made.
210․In cross-examination the complainant was asked whether she was looking back at the appellant while driving. She denied doing so. It was also suggested to her that she was driving erratically. She rejected that suggestion.
211․The source of the evidence as to the erratic nature of the complainant’s driving was the appellant. The factors described by the appellant as influencing his view that the driving was erratic were the speed of 60 kilometres per hour, the dog in the driver’s side footwell and the complainant’s level of “emotion” leading him to consider her incapable of being able to physically stop the vehicle. Those specific factors were not put to the complainant in cross-examination. The erratic nature of the complainant’s driving was a critical aspect of the appellant’s version. The complainant’s rejection of that characterisation of her driving did not undermine the reliability of her evidence.
212․The complainant did not accept that the appellant asked her to pull over at any time prior to his pulling on the handbrake. MB said he did. The appellant said that he did. The complainant’s failure to embrace that suggestion to an extent undermined the proposition that the appellant was becoming increasingly angry with her refusal to comply with his demand. Both MB and the appellant described the appellant swearing at the complainant before he pulled the handbrake. The complainant similarly did not include that as part of the conduct the appellant engaged in. These matters being absent from her version did not provide a basis to reject it.
213․The complainant agreed MB was “upset”. She did not agree he was hyperventilating or hysterical. Those descriptions are consistent with what Ms H described upon his arrival at her residence after he had run from the scene. MB described being “terrified”, “upset” and “scared”. The difference in the description of Ms H and the complainant can be reconciled by the complainant having no opportunity to assess MB’s emotional state subsequent to the actions of the appellant when he pulled the handbrake, MB exiting the vehicle as soon as it came to a stop. Additionally, MB ran to Ms H to seek assistance, providing the opportunity for his emotional distress to escalate to the state Ms H observed it to be.
214․Neither in isolation, nor in my view, in combination, do any of the matters said to cast the complainant in a “negative light” result in a wholesale rejection of the complainant’s evidence.
Timing
215․The appellant identified the complainant’s description of the incident as lasting for several minutes as another factor detrimental to her credibility. In response to a question from the prosecutor the complainant said the pressure to her neck “probably” lasted for “a couple of minutes. Two minutes probably at the most. I can’t really tell you the exact time”.
216․In cross-examination the complainant readily agreed when it was suggested to her that the entire time in the vehicle likely lasted for less than one minute. Like the Special Magistrate, I do not consider the initial estimate of timing, in the overall circumstances of the incident, to be a matter of any consequence.
Inconsistency between the complainant’s witness proofing conference and evidence at hearing
217․The complainant told police on the day of the incident that she felt “pressure” when the appellant “grabbed her neck”, stating “I don’t know how he did it, but he was choking me with something. I don’t know, maybe it was this, he had my shirt”. The prosecutor confirmed with the complainant that when she told police this she demonstrated the action to them by pulling her shirt against her neck.
218․In her evidence, the complainant said she did not recall feeling anything at the back of her neck and it was her shirt being pulled from the front that she could recall.
219․The complainant agreed in cross-examination that in a proofing session the day before the hearing she had responded to a question from the prosecutor about what she felt at the time and she had responded “just his hand there”. Later in cross-examination she agreed that she had felt the appellant’s hand between the back of her neck and the headrest.
220․This appellant did not ever challenge that he made contact with the complainant. His challenge was to the circumstances and intent of that contact. The Special Magistrate, having determined that he rejected the appellant’s version, correctly applied Liberato and turned to assessing whether he could rely on the prosecution witnesses beyond reasonable doubt.
221․The complainant did not ever describe being able to see what the appellant was actually doing or where his hands were when he made contact with her. Accordingly, the complainant was relying on what she could recall feeling at the time. Like the Special Magistrate I consider it was a matter to her credit that she did not describe conduct she was unable to see; accepting from her interview with police, that she did not know exactly how the appellant put pressure on her neck.
222․In those circumstances, the complainant’s concession that she had provided a different response in proofing to that which she initially gave in her evidence was not a basis to entirely doubt the reliability of her version of events. The inconsistencies in the specific detail of the complainant’s version was recognised by the Special Magistrate when he dismissed the choking charge, the inconsistencies going directly to the proof of the elements of that offence. The acceptance by the complainant that she could feel the appellant’s hand between her head and the headrest did not preclude the finding of guilty being properly reached.
The appellant’s credibility
223․The Special Magistrate’s finding in relation to the appellant’s state of anger gives context to his view that the appellant’s evidence was self-serving and at times, disingenuous. The Special Magistrate, having had the benefit of observing the appellant give evidence, was entitled to form that view. A review of the appellant’s evidence reveals the appellant did not concede that he was ever angry during the course of the incident. On the contrary, he described himself as attempting to calm the situation down by saying to the complainant “look, let’s all calm down for a minute” or “look, all right we all need to take a breath”. This is in circumstances where he said he “wasn’t taking no for an answer” and initially forced the vehicle to stop by reaching in and turning off the ignition.
224․The complainant described an argument with the appellant the night before. The appellant did not accept that description, instead characterising it as “emotional words” during which he remained calm. The appellant did not accept that the relationship was not in a “good place” at the time of incident. This position was entirely at odds with the evidence of the complainant and MB when they both described her attempts to have the appellant leave the residence.
225․The appellant described the complainant as driving “erratically”. The basis of this assessment was that she was yelling and screaming, not “emotionally paying attention” and in his assessment, she “physically” could not stop the vehicle. The appellant described the complainant driving the vehicle as “fast as it could” with her “foot to the floor”, though later accepted it was travelling around 60 kilometres per hour when he determined to pull the handbrake up. He also said one of the dogs had jumped down into the driver’s side footwell.
226․The appellant’s account is difficult to reconcile with MB’s exit from the vehicle, his fleeing from the scene entirely and his immediate request for police assistance specifically for the complainant. On the appellant’s version any physical contact with the complainant was transitory. He was not angry. He was not yelling. It was the complainant who was screaming and yelling; behaving and driving “erratically”. The appellant suggested MB’s level of distress was an act, though accepted he may have been “stressed” and that his emotional state “might have transitioned to a bit more genuine because I was – I was present and, yes, he manipulates his mother, but I try not ---“. Ms H was unequivocal in her description of MB’s level of distress upon his arrival at her residence and the appellant sought to draw on the extent of his distress as a factor relevant to MB’s capacity to take in what was going on around him.
227․The Special Magistrate’s observation that the appellant’s evidence was “self-serving”, in the context of his finding that the appellant was indeed angry and other aspects of his evidence to which I have referred, was an accurate assessment. I observe here that that possibility of the appellant “grabbing” the complainant’s seatbelt as “maybe” providing “explanation for where she felt pressure on her neck” when he pulled the handbrake, came late in cross-examination. The appellant offering this alternative explanation came after he had embraced a suggestion from the prosecutor, earlier in cross-examination, that he remembered the incident in “vivid detail”.
228․No part of the Special Magistrate’s reasons demonstrate that he was driven by dislike of the appellant. Aside from the conclusion he drew as to the nature of the appellant’s evidence, the appellant did not point to any other aspect of the Special Magistrate’s decision in support of such a claim. There is no basis to determine that the Special Magistrate approached his task with anything other than an open and unbiased mind, as his task required.
Ground Six – factual errors
229․The appellant identified the following factual errors in the Special Magistrate’s decision:
(i) the appellant was not living with the complainant at the time of the incident; and
(ii) that the sequence of events described by the complainant and adopted by the Special Magistrate in his reasons were not accurate.
230․The first factual error identified is established on the evidence. The evidence from the complainant was that the appellant was living with her at the time of the incident. Indeed, she accepted that the argument between them the day before centred on her desire to have him live elsewhere.
231․The second factual error is not established. The Special Magistrate referred to the sequence of events after the incident in the vehicle had occurred as part of describing the evidence given by the complainant. The Special Magistrate did not make any factual findings about the sequence of events after the incident. He did not need to in order to properly determine the outcome. The sequence of events and whether the complainant went to get petrol with the appellant in the vehicle or went to get petrol after she dropped him off, was not material to the issue the Special Magistrate was required to determine. It was not a matter raised to undermine the reliability or credibility of the complainant by the appellant during the course of the hearing. It was not put to her that she was wrong about the sequence of events after the vehicle came to a stop and MB fled the vehicle.
232․The appellant asserts the second factual error by reference to his own version, outlined in written submissions, of what occurred after the event. He did not give any evidence in the proceedings about the sequence of events after the incident. The appellant has not established the factual error. Even if the error had been established, it was not an error material to the finding.
233․The first factual error was not a fact intermediate to the ultimate finding the Special Magistrate made. It was a peripheral fact that had no bearing on the finding of guilt the Special Magistrate made. There were no submissions advanced by either party in the hearing that placed significance on the living arrangements in place with respect to the evidence generally or with respect to witness credibility. The factual error was not material and does not undermine the basis upon which the Special Magistrate determined the outcome. Accordingly, the error does not warrant intervention.
234․This ground has not been established.
Conclusion
235․None of the matters raised by the appellant demonstrate error on the part of the Special Magistrate. A review of the evidence reveals not just that the finding of guilt was open to the Special Magistrate but that it was the correct finding. The Special Magistrate determined that he could rely on the evidence of the complainant and MB, notwithstanding identifiable inconsistencies. Those inconsistencies were capable of being reconciled in the ways I have identified without detracting from the reliability of the witnesses as to the facts in issues with respect to the common assault.
236․Noting his distinct advantage of being in the environment of the hearing, I agree with the assessments the Special Magistrate made as to credit and reliability. The Special Magistrate was correct to reject the appellant’s version that any physical contact was unintentional or the result of unintended contact with the seatbelt. I am satisfied that the facts he determined to form the basis of the common assault were established by the evidence beyond reasonable doubt.
237․The appellant has not established any ground of appeal upon which he relied. Accordingly, the appeal should be dismissed.
Orders
238․For those reasons the following orders are made:
(1)The appeal is dismissed.
(2)The conviction for the charge of aggravated common assault (CC2023/2285) is confirmed.
| I certify that the preceding two hundred and thirty-eight [238] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: Date: 6 August 2024 |
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