Cassimatis v The Queen

[2021] NSWDC 765

District Court

New South Wales

Medium Neutral Citation:	Cassimatis v R [2021] NSWDC 765
Hearing dates:	16 March 2021 – 17 March 2021
Date of orders:	17 March 2021
Decision date:	17 March 2021
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	The appeal is allowed. The conviction and penalty are set aside.
Catchwords:	CRIME – APPEAL – INCONSISTENCIES IN EVIDENCE – Whether a reasonable doubt – Good character of the accused
Legislation Cited:	Summary Offences Act 1988 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	R – Crown Appellant – George Nicholas Cassimatis
Representation:	Crown Boltini Crossing Appellant Kenny
File Number(s):	2020/00003507
Publication restriction:	Nil

Judgment

1. HIS HONOUR: This is an appeal from a conviction recorded and sentence passed by Trad LCM sitting in the Local Court at Waverley on 22 December 2020. Her Honour convicted the appellant of a charge that on 31 December 2019 at Coogee he assaulted Selma Chami. Her Honour imposed a fine of $3,300. When prosecuted in the Local Court, common assault is punishable by imprisonment for up to two years and/or a fine of $5,500.

2. As ought be clear from the charge which I have read, the event in question occurred on the eve of the first year of the current pestilence. It occurred about 9:30am. From moving and still pictures which I have seen, it appeared to have been a very fine, sunny, warm, balmy day. The event in question occurred immediately behind the southern end of Coogee Beach. The area appears to have been well visited by those wishing to swim, those wishing to promenade in the park behind the beach, and by those wishing to take morning refreshment, in particular coffee.

3. In her reasons, Her Honour said this:

"... the Court heard some considerable questions put to witnesses about what the area was and what that entailed, the importance of which quite frankly escapes me in terms of the reasons why so much time was spent in ascertaining the description of the area..."

Fortunately the parties have put before me some photographs and maps which elucidate matters, and the elucidation of those matters helps the factual enquiry. If Her Honour paid more attention to the factual enquiry perhaps she would have observed things that I have come to observe when I read the evidence.

4. At the southern end of Coogee beach is the Coogee Surf Life Saving Club clubhouse. Its street address would be Beach Street. Carr Street runs from west to east. At its eastern end there is a right hand bend, and when one makes the right hand turn, one enters Beach Street. Beach Street runs from north to south. According to a Google aerial photograph Beach Street starts, not on the turn from east to south but, a little further to the west of that turn. Nothing hangs on that. I shall refer to the road that runs from west to east as Carr Street.

5. On the southwest corner of the turn from Carr Street to Beach Street is a three-story building which appears, from part of a sign that can be discerned on it, to provide accommodation. Next to it is a café restaurant known as Barzura, that is, it is the penultimate building on the southern side of Carr Street before the turn into Beach Street. On the northern side of Carr Street is a park which is behind Coogee Beach itself, and is bordered on its western side by Arden Street. Arden Street runs from Coogee to Clovelly. Perhaps almost in the middle of Coogee Beach, Arden Street forms the top of a T-intersection with Coogee Bay Road which might be seen to be the central point of the Coogee shopping and entertainment area.

6. On the northern side of Carr Street there is 90 degree parking, rear to kerb. That is consistent with evidence given by Constable Jake Trapani at page 10 of the transcript of 25 September 2020, commencing at line 36. The eastern most reverse parking bay on the north side of Carr Street is a disabled parking space. The road is a black asphalt surface. On the northern side there is the usual kerbing and guttering. The area immediately behind parking spaces on the northern side of Carr Street is paved with bricks. That paving extends to make a promenade along the back of the beach through the park area behind the beach. That paving can be seen in both the still photographs that form part of Exhibit 2 before me.

7. On this bright sunny morning the appellant, Mr George Cassimatis, had visited the Barzura and taken coffee. His car was parked beside the disabled parking space that is eastern-most on Carr Street. From the material contained in Exhibit 2 it is clear that both the disabled parking space, and where Mr Cassimatis had parked his car, are immediately opposite Barzura. It would appear that at the relevant time Mr Cassimatis, having taken his coffee, had crossed over Carr Street into the area behind where he had parked. What then occurred is that the complainant, Selma Chami, parked in the disabled parking space next to the appellant’s vehicle. The complainant was driving a Toyota Hilux twin-cab utility truck, dark blue in colour. That one might think is quintessentially a tradesman’s vehicle. However, Ms Chami does not appear to have been a tradesperson. She was, however, the holder of a mobility parking permit that was to expire on 17 August 2021. At the time of the alleged offence Ms Chami was 42 years old, The appellant was 61 years old. Ms Chami was accompanied by her 13 year old daughter.

8. This is the initial description that Ms Chami gave of what occurred in her evidence in chief:

“Q. Could you please tell the Court what happened at about 9.30am on 31 December 2019?

A. Yeah, me and my 13 year old daughter had gone to Coogee Beach for a swim. I had parked my car in the disability parking. Placed my sticker on the windscreen and as I was getting out of the car the gentleman pointed out to the sign with his finger swearing and yelling ‘It’s a disability parking’ and..

Q. I’ll just stop you there, sorry. Where were you and where was the man at this time?

A. The man right behind, right behind my car. So he was on the kerb and I was just getting out of the car.

Q. Continue?

A. Yeah, and then he pointed over to the sign, swearing and yelling, and I said to him, ‘I’ve got a disability permit’ and then he said to me, ‘You’re a liar, that’s a fake, it’s a fraud’. So then I pulled my sticker out, pulled the, sorry, pulled the card out and then I showed him my photo. Because when you park, when you put your disability sticker on the windscreen, it hasn’t got your photo side, it’s just got the expiry date and whatever. So then I showed him the photo, I go ‘This is me’ and then he said to me, ‘You’re nothing but a bitch’, S-word, and then he swore at me and he said to me, ‘You’re nothing but a fraud’. And so, my 13 year old daughter stood in between us because he was yelling, he came up face to face to me and was yelling and swearing so my daughter got scared and she said ‘don’t talk like that to my mum. Watch how you, watch how you respect women, watch how you speak to women. Have some respect’. And then he just got more aggressive, he face went all red and then he got his fist and he punched me over my shoulder and there was a witness at the time. She saw...what had happened.”

9. The only witness identified to the police was Ms Nermin Ayan. Ms Ayan was visiting Coogee to take coffee at Barzura. She had in her company her two sons. How old they were is not disclosed in the evidence. From her evidence, it is clear that she had finished taking coffee, had crossed over Carr Street and was on the paved area behind the parking spaces on the northern side of Carr Street. The evidence does not disclose whether she was going. It may be that she was parked further westward along Carr Street or she may have been walking with her sons towards the park, it is just not clear. Equally, she could have been walking not westwards but eastwards perhaps towards the southern end of the beach or the baths near the southern end of the beach or in the direction of the surf club, one just does not know.

10. One thing that was not explored in evidence is how the appellant’s daughter came to stand between the complainant and the appellant. Was she travelling in the seat behind the driver’s seat of the vehicle such that when she alighted from the vehicle she was in front, that is, on the northern side of her mother who had alighted from the driver’s seat, or had she been sitting in the front passenger seat which is what one would normally expect, and had she had the opportunity of walking around the car either via its front or its rear in order to stand between the appellant and the complainant? This has not been explained in any way but, as I shall go on to point out, the evidence of Ms Ayan was that the daughter of the complainant was not in between the complainant and the appellant.

11. In a blown-up copy of one of the colour photographs, that blown-up copy being only in black and white, one can see the complainant still sitting in the driver’s seat of her car with the driver’s door open and her facing towards the photographer. The photographer was undoubtedly the appellant. From that photograph the complainant appears to be gesticulating towards the appellant. That gesticulation was a rude gesture.

12. In cross-examination the complainant gave this evidence which can be found on p 41 of the transcript of 25 September 2020:

“Q. Were you sitting in your car and were you abusive to him in any way?

A. No, I had gotten out of my car, and he was abusive towards me.

Q. Put it this way, were you sitting in your car and did you give him, if I can describe it in this way, the rude finger. You know what that means, like that?

A. Yes I did.

Q. You did that?

A. Yes, I did do that.

Q. Because there’s nothing in your statement about that either is there?

A. Okay, so it’s not in the statement, but I did do that.

Q. Is that a nice sort of gesture or what’s that?

A. No, but it is a nice gesture for a 60 year old, to come, approach me and swear at me and accuse me of having a permit that’s a fraud and it’s none of his business, okay.”

13. It would appear that her reason for making this rude gesture towards the appellant was supported only in her mind by what subsequently happened. One can readily accept the appellant pointing, as he admits, to the disabled parking sign because he may have believed that the complainant was not entitled to park in the disabled parking spot. After all, the vehicle was one that one would not normally associate with a disabled motorist. The appellant was a young lady 42 years of age accompanied by a teenage daughter. Not the normal sort of disabled person. One could appreciate that he may, as he said he did, point to the sign to indicate to the lady that it was a disabled spot in case she did not realise it. However, it appears that the first thing or almost the first thing that happened was that the complainant raised her finger towards the appellant a rude gesture commonly called giving a person “the bird”. This was not a good way to start any interaction between two individuals.

14. The complainant went on to say that she and the appellant were about 3 metres apart and that he was facing her. At p 33, line 39, of the transcript she said that he was coming closer to her. She said that he had taken his mobile phone out and was taking photographs with it and also video recordings. That evidence can be found at p 33, line 42. In cross-examination at p 43, line 17, the complainant agreed that she did not mention to the police the appellant’s taking any video recordings of her. It is clear that the photograph showing the two vehicles parked opposite Barzura was taken by the appellant when the complainant was still in her vehicle. Later, when interviewed by the police, he showed the police one photograph of the appellant. However, there is no evidence that the appellant exposed any video of the complainant.

15. The complainant went on to then tell the appellant to delete the photographs and videos that he had allegedly taken of her. The complainant then invoked the law. At p 34, line 11, of the transcript she said this:

“Then I told him ‘It’s against the law, you’re not allowed to take photos or videos of me’, and then he just kept swearing and yelling and screaming.”

It is not illegal to photograph people. The persons most often involved in that practice are paparazzi, and the victims are often celebrities, politicians, or members of the Royal family. It is not illegal to take photographs, however it is clear that the appellant had formed a distinct view of what her “rights” might be.

16. After saying that the complainant volunteered “he was very violent”. This was before there was anything that could amount to violence. It may have been a way of saying that he was quite aggressive, but she used the same word in answer to the next question which was cut off by her. The prosecutor commenced a question with “Why”, and the appellant answered it with “Like aggressive hand movement and you know, yeah.” It would appear therefore that the violence was merely some form of gesticulation.

17. She then said the he “kept coming closer to me and because he was taller than me, say[sic] he was pointing down at me.” The word “say” may have been a mis-transcription for the word “so”. This question and answer were then given:

“Q. I’ll take you back to where you said you were hit. At that time where were you and where was he?

A. So he was standing on the footpath, I was at the bottom of the kerb, and then that’s when he swung a punch.”

That description seems to indicate that the appellant was standing above the kerb on the footpath and that she was standing in the gutter, thus adding to the appellant’s height above her. However that is inconsistent with what she initially said, in that, when she first saw him the appellant was “on the kerb”. If the appellant was on the kerb when she first saw him, and he was on the kerb or on the footpath behind the kerb when he swung the punch, then he has not advanced forward towards her as she said, but, if anything, he has gone backwards retreating, which is what his position was. In other words, on the complainant’s own evidence, the allegation that the appellant was advancing on her cannot be correct.

18. In answer to the next question, which was how far away was the appellant from her when he struck her, the complainant said: “Probably about not even a metre. My daughter was standing in between us.” One would think that if there was a punch, which the complainant says was made by the appellant with his left arm striking her right shoulder, and the daughter was standing in between, then it is difficult to understand how the daughter was not affected in some way by the punch. From the evidence of the witness, Ms Ayan, it would appear that the appellant’s suggestions that the daughter was in between the complainant and the appellant when the complainant says the appellant punched her is incorrect.

19. The complainant was then asked what she was doing at the time that the punch was thrown and she said this:

“My arms were just beside me, or I probably used my arms yelling and swearing back at him because there’s no way I’m going to let a man speak like that to me.”

In other words her arms could not have been beside her if she was gesticulating which is what that answer indicates.

20. The appellant says that the complainant, throughout his interaction with her, was pointing towards him, and approaching him, such that he feared that she might poke him in the eye or the like. Towards the end of her evidence-in‑chief at p 37, commencing at line 20, this evidence was given:

“Q. Did you ever point your finger in his face?

A. Yes, I did.

Q. At what point did you do that?

A. After he was, after he kept facing down at me and pointing his finger to my face, he was standing over me I remember pointing my finger back at him.”

That was also the subject of cross-examination. At p 44, line 4, the complainant agreed that she was pointing her finger at the appellant’s face because he was doing the same towards her.

21. She said that he was standing on the footpath and she was “down on the kerb”, that he was taller than her and that “he kept intimidating me”. She was then cross-examined about the allegation about where the two actors were, and she confirmed that the appellant was on the kerb and that she was down on the roadway beneath the kerb. Again, I point out that that is inconsistent with the whole proposition that he was advancing on her. Rather than she must have been advancing on him.

22. The appellant’s case was that, as she was advancing on him thrusting her finger towards his face, he feared being poked in the eye and therefore used his open right hand to push her hand away from his. In the appellant’s evidence-in-chief, she said this:

“Q. Can you describe which hand he used?

A. He used, he used his I’m sure it was his left.

Q. Where did it collide?

A. Just on my right shoulder.

Q. Can you describe his hand, open, closed for example?

A. Just open.

PROSECUTOR: Just for the record the witness is..

WITNESS: Like it was a, it was a fist closed.

PROSECUTOR: The witness has clenched her fist and cocked her right arm backwards in a typical punching motion.

WITNESS: In, yeah.

Q. Just describe that motion?

A. So he had just pulled his arm back with his fist and just swung a punch forward.”

The interesting thing there is to notice is that, when first asked to describe the appellant’s hand, the complainant volunteered that it was open. Then the prosecutor started asking the Court to note something, but the witness then intervened to “correct herself”. One must consider the fact that the appellant may have committed a mistake in her evidence, or she realised that the evidence that she had just given was inconsistent with the case that she wanted the court to accept. Was this, to use the vernacular, “a Freudian slip”?

23. At two more places in her evidence-in-chief the complainant said that her daughter was standing between her and the appellant. Those references are p 35.48 and p 37.31.

24. At p 36 of the transcript of 25 September 2020 the complainant then spoke about the intervention of the witness, Ms Ayan. The complainant said that after the punch was thrown, the appellant moved backwards. She then said this:

“And the witness had come over and seen it all and she jumped in and you know.

Q. What did she do?

A. She actually told him to step away and not put his hands on me.

Q. What did you do after that?

A. Then we called the police, but there were other witnesses around, they were locals that come up to us and told us they’re very, very familiar of [sic] him causing trouble on the beach.”

Of course the complainant was there giving hearsay evidence which had the tendency to denigrate the appellant. There was no other witness who came forward to tell the police that this appellant was a pest generally around the beach or a serial pest. From what I shall later describe that appears to be highly unlikely. It would therefore seem that the complainant was merely giving self-serving evidence to denigrate the appellant. She then said that when she called the police “he just ran off”. That appears to be highly unlikely and is also inconsistent with other evidence that she gave.

25. That answer, that he “just ran off”, is recorded at p 36.31 of the transcript, but at p 37.10 the appellant said that after the punch and the interchange with Ms Ayan “he started walking away.” There is a distinction between running and walking. Running away would indicate that the appellant was conscious of his guilt and feared apprehension. However, if he merely walked away, which is what he said he did, then that is not indicative of consciousness of guilt. Before the police could interview the complainant the appellant’s identity was broadcast on VKG, and the police found him walking along the promenade behind the beach. He was not seeking to run away or avoid apprehension.

26. The giving of the hearsay evidence about the appellant being a pest at the beach, as I said, is self-serving and denigrating. Further, evidence denigrating the appellant was given by the complainant. She said that, after she was struck, “He just kept swearing. I thought maybe he was drunk, under the influence of alcohol”. The appellant when apprehended by the police was not under the influence of alcohol or any drug. I have seen him being interviewed by the police very briefly on body-worn cameras activated by some police officers, and there is no suggestion that the appellant appeared to be any way suffering from intoxication by alcohol or any drug. The suggestion that he was perhaps drunk or under the influence of a substance is merely denigration.

25. According to the appellant he was not using bad language, foul language, and denied the use of the terminology attributed to him by the complainant. It is undoubtedly clear that the appellant made no reference to the use by the appellant of foul language. The Summary Offences Act 1988, s 4A(1) provides this:

“A person must not use offensive language in or near, or within hearing from, a public place or a school. Maximum penalty: 6 penalty units”.

Coogee Beach and parkland behind it and the streets adjoining it are public places. If the appellant used the language attributed to him by the complainant, then he was certainly guilty of that offence. Especially is that so when it was said to be made within the hearing of the appellant’s 13 year old daughter, and was denigratory of the mother, calling her a “liar”, a “bitch”, in the presence of the daughter, and a “slut” in front of her daughter. However, the use of bad language is never mentioned to the police by the appellant, nor was it mentioned or attested to by the witness Ms Ayan. If police had been told, no doubt a charge would have been laid under s 4A of the Summary Offences Act 1988. However, that was not done.

28. Initially, in cross-examination the complainant said that she did tell the police that the appellant was swearing, that can be found at p 39, line 26, of the transcript of 25 September 2020. However, she eventually agreed, at p 40, line 16, that that was not mentioned in her statement. Further, in her cross‑examination, the complainant admitted that she was aggressive towards the appellant when he allegedly approached her. That can be found at p 40, line 48.

29. The only other surprising thing that should be noticed about her evidence is this: the event occurred on 31 December 2019. The appellant gave evidence on 25 September 2020, almost nine months later. It is common human experience for memories to fade. However, according to the complainant her memory improved with the passage of time. I quote this evidence in context:

“Q. Is there anything in your statement about him pointing towards your face and…

A. No, I didn’t give every detail. No, I didn’t.

Q. That’s all I’m saying to you…

A. Yeah.

Q. It’s not in your statement, that we’re getting a lot of detail now, aren’t we?

A. Yeah, because it’s all fresh, refreshing my memory.

Q. Okay, but it’s refreshing you, but this is back in February [sic], you know, seven months ago. Your memory is more fresh now that it was back on the day?

A. Yeah, cause it’s now a clearer picture.

Q. Of course, all right?

A. Cause the heat is over.”

There of course the allegation that her memory was better on 25 September than it was on 31 December, and the reason her memory was better was because the “heat”, meaning passion, perhaps, or excitement or alarm, had gone away, but, generally, memories do fade with the passage of time, and in the heat of the day, one might be given to hyperbole, but with mature reflection one should not be given to hyperbole.

30. Everything that I have said about the appellant’s evidence points to hyperbole when giving evidence, and that appears to have been acknowledged by the Magistrate who observed this:

“The fact that it is submitted that a witness gives evidence in a way that may be considered to be emotional is somehow an attack on the credit of the witness needs to be rejected without something more. It is common experience of the Court that people give evidence in circumstances particularly in relation to an allegation of a violent assault in circumstances where they believe it came out of nowhere and as a shocking and sudden experience would in giving evidence about that have an emotional response and for the Court to suggest that a witness must sit in the witness box in a calm and clear tone and give their evidence in a way without emotion and without much restraint would be to deny the human experience and it is not the Court’s experience that that is indeed a useful way of approaching a witness’s evidence.”

I have been on the Bench now for over 26 years, it is not my experience that people, when reciting what happened in the past, even when things were traumatic for them, to be still smitten with emotion and passion and given to hyperbole. Rather, one expects as time has passed and passions have calmed down and the press of the experience has eased, that a witness tends to be more calm and dispassionate.

31. I turn now to consider the evidence of Ms Ayan. Ms Ayan’s statement is not in evidence. I do not know what she told police. However often, a person tells a policeman something and later what the person says is different when put into writing.

32. The first witness in the Prosecution was the officer-in-charge, Constable Jake Trapani. In cross-examination, at p 14 of the transcript dated of 25 September 2020, this question and answer were recorded. In reciting this, I have corrected the punctuation of the transcript so that it is consistent with other portions of the transcript, and in particular consistent with what was said by Mr Kenny who appears for the appellant at p 7, commencing at line 49, and going over to p 8 ending at line 2. The relevant evidence is this:

“Q. Remember hearing the words that are referred to there, written [sic] on that video footage there, ‘there’s an independent witness there that said that you grabbed her and assaulted her, okay? That’s it?

A. Yeah.”

Those words were what the Constable said to the appellant, when the Constable briefly interviewed him when they came across him on the parkland behind Coogee Beach. The only independent witness that there is in this case is Ms Ayan. If Constable Trapani was being accurate, then it appears that Ms Ayan may have said to someone that the appellant “grabbed the complainant and assaulted her”. However it was not alleged by the Prosecution in the Court below, nor by the Crown in this Court, that the appellant ever took hold of any part of the body of the complainant. If Constable Trapani were accurately saying what he had been told, then it appears that Ms Ayan may have told the police at some stage, not that the appellant punched the complainant, but that he “grabbed her”.

33. In her evidence in chief Ms Nermin Ayan said this as a synopsis of her evidence:

“Q. Could you please tell the Court what happened on the morning of Tuesday 31 December 2019?

A. Yes, I was there with my children. We were at Coogee, we came out of Barzura, the café, as we do, and we were walking and then all of a sudden, I heard this screaming at me. It was back and forward. I turned around and I saw this man, he was quite big and as that he was using his body to kind of overwhelm her and it was, what I heard was ‘You took a photo of my car’ and then his response was ‘No, I’m taking a photo of the beach’. But it was, he was aggressive and used his body to kind of overwhelm her and I don’t like that. I don’t like men using their body to overwhelm people and then, so he kind of went closer to them and then I noticed he had his fist and with my job, I am very body language - I can read things, and his had [sic, scil hand] was quite firm and then kind of hit her arm, kind of whacked her. And with that, he just came out and said ‘well that’s a...violation of privacy’. So he knew what he did was wrong but kind of referred to those words, and I’m thinking ‘why would you say that once you’ve hit this person?”

The first thing to notice is that it was never put by the prosecutor to the appellant that the appellant said that he was not taking a photograph of the complainant’s car, but taking a photograph of the beach. It may be that Ms Ayan misunderstood what was said. The appellant does not deny that he photographed the complainant’s car, nor does he deny that he took a photograph of the complainant.

34. The next thing to note is that the words ‘a violation of privacy’ that Ms Ayan attributed to the appellant were words claimed by the complainant to have been used by her. That is much more likely in context than the appellant uttering those words. In other words, Ms Ayan, mis-attributed what she heard to one of the actors.

35. In what I have quoted, one will note that the witness held herself out as having some expertise in assessing body language. In the passage that I have quoted, she referred to him as being “aggressive”. A little later at p 20.18 she described him as being “very aggressive”. At p 24 she said this about her expertise at reading body language:

“Q. You say that you’re good at reading body language because of your job. What is your job?

A. I’m a school learning support officer. I work with autistic children and we’re very good at reading and like we are one step ahead of the children and that’s our job.”

Another way of describing a “school learning support officer” is a teacher’s aide. She works with children. I can wholly accept that she might have expertise in reading the body language of autistic children. However, that does not give her an ability at reading the body language of a 61 year old male European beachgoer. When I refer to “European” I do not wish to be in any way denigratory, it is just that Mr Casssimatis, whilst appearing in every way to be thoroughly Australian, has a Greek name and clearly is of European descent, as I am.

36. In her evidence, Ms Ayan refers to both the appellant and the complainant being behind the cars. That can be found at p 20.43. According to the complainant’s evidence she was still on the carriageway beneath the top of the kerb, but that is not consistent with what Ms Ayan said. She confirmed that the two were looking at each other. She said that his voice was “very loud and very strong”, but what she meant by that is unclear. She said that they were “screaming”, and screaming is by definition something that is loud. It may be that she was merely describing raised voices.

37. At p 21, line 49, after describing the “hit”, that the appellant made with his fist to the complainant’s shoulder, she said that the complainant moved back and was very scared in response to what had been done and she then reiterated that it was at that time that the appellant said that “it’s a violation of privacy”, words which must have been said by the complainant. She then said that the appellant then started “storming off”, but did not elucidate whether she meant by that that he was walking or running. It may mean that he left just showing some anger.

38. At p 22, line 23, Ms Ayan confirmed that the complainant was “moved back with the impact”. That is not the position taken by the complainant. Importantly, the final position of Ms Ayan was not that the appellant used his left arm to strike the complainant’s right shoulder, which is the complainant’s position, but that the appellant used his right arm to strike her on the left shoulder. This inconsistency, which is a major one, appears to have been dismissed by the Magistrate as something of little moment. Juries take matters of that character as of being of great significance.

39. Again to make the point again, Ms Ayan said at p 24, line 10, that the blow struck by the appellant moved the complainant out of the way with the force of the impact, and that the appellant was distressed by it.

40. Ms Ayan gave evidence that after the appellant “stormed off” she advised the complainant to “call the police” which the complainant did, and she then said that the complainant followed the appellant. She said that he was “getting into the crowd”, and they were a fair distance behind him, and she advised the complainant not to continue her pursuit of the appellant and to leave that to the police. She was then asked whether she remained with the complainant and said that she did not because she had her own two sons with her, and she had to attend to them, she then walked away. She said that she did not see the female’s hands being pointed towards the appellant’s face but the complainant herself admits that she did so. Nevertheless she said that she had a clear view of the complainant’s arms, yet how she missed the admitted pointing is unclear.

41. Ms Ayan was then asked whether anyone else was present with the complainant, she said that her teenage daughter was “in the car” and was “crying”. In cross-examination Ms Ayan said this:

“Q. Did you get involved in the situation...?

A. No.

Q. At all or inbetween them?

A. No, not at all, I stayed next to the daughter. I was away from the situation..

Q. If someone said like if a witness was said someone saw - another person saw it and tried to settle things down. Is that right or wrong? Do you know?

A. Settling the situation is like ‘hey mate don’t’..

Q. What I’m trying to suggest to you--

A. Yep.

Q. --that that’s not you, is it? You weren’t involved in that?

A. Well, I don’t know, maybe I was, maybe I was. I can’t remember what I did in that little minute”.

When pressed again the witness said that she perhaps was involved but she could not remember that.

42. The important point, of course, is that the witness said that she stayed away from the incident and she does not depose to being between the appellant and the complainant when the appellant struck the complainant. She says that she was out of the way with the daughter. Again that is completely inconsistent with the appellant’s daughter and/or the witness being between the complainant and the appellant at the time that the alleged punch was thrown. Ms Ayan does not give any evidence at all of any foul, offensive or abusive language. She merely refers to body language and her expertise I have already commented upon.

43. The other witness in the prosecution case was Constable Trapani. He made a statement in 19 February 2020. He did not take a statement either from the complainant or Ms Ayan or take any formal statement from the appellant. There were some excerpts of body-worn video taken on his body‑worn camera and there is also some body-worn camera footage exposed by Constable Thomas Simpson. Those three video excerpts were played to the Local Court and have been played to me. In none of the body-worn recordings was any admission made by the appellant of throwing a punch.

44. Paragraph 14 of Constable Trapani’s statement of 19 February 2020 says this:

“I served and explained the field court attendance notice and served it on the accused. At the completion of this the accused said - ‘look, I punched her, I’ll just go to court and plead guilty’”.

The field court attendance notice is before me and on its reverse side it tells me that it was served by Constable Trapani on 31 January 2019. Constable Trapani could not produce any document, in particular any police notebook in which he recorded this alleged admission by the appellant. Eventually Constable Trapani in cross-examination made an admission about his statement. The context of his evidence is this, this is after the constable had been cross-examined about his interaction with the appellant prior to his formal arrest in which he repeatedly asserted that the complainant was pointing a finger at him, approached him, that he feared that the appellant would poke him in the face and that is why he pushed her hand away.

45. On p 16 of the transcript of 25 September 2020 he agreed that the appellant demonstrated a pushing away motion with his right hand. He agreed that the appellant repeatedly told him, “almost painfully”, to him and to other police officers that that is what occurred. He also agreed that the appellant said on numerous occasions that he had been defending himself. He agreed that all of that was shown on the body-worn camera footage. He agreed that the appellant continually said that he was defending himself. He agreed that then the body worn cameras were switched off. This evidence was then given:

“Q. Everything is switched off, off you go and you’re getting your field CAN ready and all that sort of business. Then you say he just out of the blue it looks like, the accused and this is not recorded anywhere?

A. Yeah.

Q. Not in your notebook, not on any body worn footage, you say he said ‘look I punched her, I just go to court and plead guilty’?

A. Yeah, so my body worn was having issues that day and then endeavour click, I’m constantly clicking it, I’m getting the officer to check if it was on, on and off all the time. After it was, the incident was to the end, me and Mr Cassimatis did have a conversation and he told me a thousand times, ‘yep, I’m guilty, I’m guilty’. He asked me if I could, he could apologise to the female, and that was made possibly, at the time, one of my officers said, ‘Is your body worn on?’, and I .. said to him, ‘Well, I don’t know, it’s ... playing up’.

Q. He told you a thousand times he’s guilty, did he?

A. Yeah, constantly, not exactly a thousand, but a fair few times, yeah.

Q. But that’s not in this statement, is it?

A. In my statement?

Q. Yes?

A. I think I did put all of it.

Q. He told you a thousand times he’s guilty?

A.Yeah, well I put it under paragraph 14. But it was, yeah.

Q. You did say words to the effect I’ll just go to court and plead guilty with an explanation?

A. Yes, correct.

Q. Something like that, didn’t he?

A. Yes.

Q. No mention about any punch? At no time did he ever say to you that he punched her?

A. Not that I can remember, no but we’ll...

Q. Pardon?

A. Not that I can remember, no.”

There was no admission ever made by the appellant that he punched the complainant. Paragraph 14 of the statement of Constable Trapani is completely incorrect. True it is the appellant did offer to plead guilty and he did want to apologise. He told the police at the time of his arrest that he wanted to apologise to her because he had upset her and because she was a disabled driver. He wanted to apologise because she was upset, not because he had punched her. He was seeking to be conciliatory.

46. The reasoning of the magistrate is essentially this: The complainant said that she was punched by the appellant using his left hand to strike her right shoulder. The witness, Ms Ayan, does not use the term punched but she does refer to a fist and she refers to the appellant hitting the complainant with his fist. However, she has it that he was using his right fist to strike the complainant’s left shoulder. In the Triple-0 call the complainant gave four different but not inconsistent accounts of what happened to her. Initially she said that she had been “attacked by a man”. She later said that “he punched me” and then she said, “just a hit” and immediately prior to that she used the word “I have been assaulted by a male”. Of course the words attack, assault, punch and hit can all refer to the same thing. However, there is no magic word and the magistrate merely adopted it because the complainant said that she was punched and there was a contemporaneous complaint to Triple-0 of a punch and because Ms Ayan said that there was a striking of the body of the complainant with a fist therefore the appellant must have punched the complainant and insofar as the appellant was relying upon self-defence any punching of a woman by a man in the circumstances of those two was not the use of reasonable force in self-defence.

47. Her Honour has not analysed the evidence in great detail. Her Honour has not referred to all of the inconsistencies that I have referred to. Furthermore, although she does refer to the appellant as being a man of prior good character she did not use that in her assessment of the facts of the case relating to whether the offence had been proved beyond reasonable doubt.

48. The prosecution has to prove its case beyond a reasonable doubt. The appellant had to prove nothing. What he said, and he gave sworn evidence, needs to establish is some reasonable doubt as to the reliability of the evidence called for the prosecution. I have heard what he said when interviewed as recorded by the police at Coogee Beach. I have read his evidence. There is nothing inherently implausible in what he said was his explanation for what occurred. He at the time of the alleged offence was 61 years old. He would appear to have grown up in the local area. He had retired from business but managed some properties which he owned and no doubt was returning him some retirement income. The appellant was a member of the Coogee Surf Life Saving Club. He had been involved in surf lifesaving since he was nine years old. He was still an active member of the surf club. As a younger man he stood on patrol as most young members of surf clubs do. He is an accredited official for surf clubs. There is an electronic record of his qualifications in the Surf Life Saving movement. They do not go as far back as to when the appellant was nine years old, they do shows that in 1982 he obtained an advanced resuscitation certificate. It also show the appellant as being the holder of a bronze medallion at the relevant time gained at South Maroubra on 22 April 2007 but it is clear that he must have had his bronze medallion at a much earlier age to have the advanced resuscitation certificate in 1982. It is likely that the records prior to 1982 were kept manually rather than digitally.

46. The appellant said that he visited Coogee Beach nearly every day. He was a regular at the Barzura taking coffee each morning. The appellant’s membership of the Coogee Surf Life Saving Club and what he does for that club and what he must do at the beach which includes, for example, training nippers and cadets and others which make him a valued member of the community. His association with Coogee Beach makes it extremely unlikely and implausible that witnesses would have told the complainant that he was a regular harasser of persons at the beach, that he was some sort of serial pest. That is quite inconsistent with a man of prior good character who has given time voluntarily to the Surf Life Saving movement throughout his junior and adult life.

47. The defence of self-defence obviously did arise on his account. He said that because he feared that he would be poked in the face by the complainant from whom he was seeking to walk away that he brushed her hand away from his face using his right hand. My note is he demonstrated with his right hand from right to left but, like others, I sometimes get confused with the left and right. However, any touching of the body without lawful excuse amounts to trespass to the person and therefore is an assault and he did what he did then the offence of self-defence would clearly arise and was not negatived by the Crown.

48. On my assessment of the evidence, and I admit that I am not in a dominant position as was the magistrate but the magistrate does not go into any detail with the evidence, I am left not persuaded beyond reasonable doubt that the offence alleged has been proved. The evidence of the appellant himself was plausible and must raise in my mind doubt as to the liability and accuracy of the witnesses called in the prosecution case.

49. For those reasons there being a reasonable doubt the conviction must be set aside as well as the fine imposed. For those reasons the appeal is allowed. The conviction and penalty are set aside.

Decision last updated: 23 March 2022