Chapman v ET
[2024] ACTMC 31
•19 September 2024
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Chapman v ET |
Citation: | [2024] ACTMC 31 |
Hearing Date: | 22 May 2024 |
DecisionDate: | 19 September 2024 |
Before: | Special Magistrate Richter |
Decision: | See [81]–[106] |
Catchwords: | CRIMINAL LAW – FAMILY VIOLENCE - EVIDENCE - Judicial Discretion to admit or exclude Evidence – Witnesses - Evidentiary Matters Relating to Witnesses and Defendants |
Legislation Cited: | Crimes Act 1900 (ACT), ss 26 and 28 Evidence Act 2011 (ACT), ss 38, 128 and 138 Evidence (Miscellaneous Provisions) Act 1991 (ACT) |
Cases Cited: | Burswood Management Ltd v Attorney-General (Cth) [1990] FCA 203 Cubillo v Commonwealth [2000] FCA 1084; (2000) 174 ALR 97 De Silva v The Queen [2019] HCA 48; 268 CLR 57 Gibbons v Perkins [2021] ACTSC 245 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 R v HC [2017] ACTSC 276 R V Orcher 48 NSWLR 273 |
Parties: | Kara Chapman ( Informant) ‘ET’ ( Defendant) |
Representation: | Counsel B Chifuntwe ( DPP) T Jackson ( Defendant) |
| Solicitors ACT Director of Public Prosecutions Andrew Byrnes Law Group ( Defendant) | |
File Numbers: | CC 12060-12063 of 2022 |
SPECIAL MAGISTRATE RICHTER
Introduction
The defendant appeared before me charged with the following offences:
Count 1 (CC 2022/12060): Aggravated common assault - Family Violence
contrary to section 26 (1) Crimes Act 1900 (ACT).Count 2 (CC 2022/12061): Aggravated common assault - Family Violence,
contrary to section 26 (1) Crimes Act 1900 (ACT).Count 3 (CC 2022/12062): Aggravated common assault - Family Violence
contrary to section 26 (1) Crimes Act 1900 (ACT).Count 4 (CC 2022/12063): Choke, suffocate, strangle - Family Violence
contrary to section 28 (2)(a) Crimes Act 1900 (ACT).The prosecution’s case is that at about 5 pm on Sunday 13 November 2022 the defendant and his wife (‘the complainant’) were at home with their five year old daughter (‘the child’).
In what is the normal routine of many families on the Sunday night, they were preparing for the following day which was to involve school and work.
The complainant went to the bathroom and prepared a bath for her daughter. After the daughter got into the bath the complainant then moved into the kitchen where she prepared lunch for the next day.
The task of bathing the child fell to the defendant. After a short time, the defendant left the bathroom and joined his wife in the kitchen where they had a brief argument about whether the child had been washed. This resulted in the complainant becoming upset.
After this argument the defendant went back into the bathroom. The complainant heard a hard slapping sound and immediately proceeded to the bathroom where the child told her that the defendant had slapped her on the face.
The complainant observed some redness on the child’s face and this gives rise to charge 12062 of 2022.
The complainant then started yelling at the defendant to get out of the bathroom and the defendant stated “she’s wiped a booger on me!” The argument between the two adults then escalated and became physical.
The defendant told the complainant to “fuck off” and started pushing her on the chest. It is this conduct that is said to give rise to charge 12060 of 2022.
Thereafter the parties were pushing each other for about 22 seconds back and forth. The complainant grabbed and broke the defendant’s chain necklace. The defendant then pushed the complainant onto the bed in the bedroom adjacent to the bathroom.
The defendant then climbed on top of the complainant and applied pressure to her neck with one or two hands. The complainant couldn’t breathe during that incident. She felt that her face was hot at the time and she thought she was going to die. She thought that her neck was held for more than five seconds. This conduct gives rise to charge 12063 of 2022.
While the defendant was choking the complainant she was kicking his lower body. The child was also in the room at this point yelling at the defendant to stop and she was pushing or striking him.
The defendant then let go and stepped back. The complainant got up off the bed and attempted to comfort the child. As she stood up the defendant pushed her, causing her to fall against the bed and then onto the ground hitting her head on the wall. This conduct gives rise to charge 12061 of 2022.
The version of events the prosecution seeks to rely on is drawn from the account given by the complainant in her 000 Telephone Call to police (Exhibit P3), her account to the police when they attended on that day, and on the family violence Evidence-In-Chief interview (‘FVEIC Interview’) which was conducted with the complainant on the morning of Tuesday 15 November 2022 (Exhibit P2).
The Complainant’s Evidence
000 Telephone Call
The 000 Telephone Call was tendered as Exhibit P3. In that call the complainant is clearly upset and commences by telling the police:
Police: Yeah, what’s going on?
Victim:My husband choked me, attacked me and he slapped my daughter and we’ve had an altercation and I just need the police to come but, because I’m actually scared. I’ve asked my mother and father-in-law to come over, but I’m just frightened now.
And later;
Police: And did you say he’s also assaulted your child?
Victim: Yeah, he just slapped my child, yeah, in the face.
And later;
Police: And have you locked the door, or is unlocked?
Victim:He’s not - he’s, like, calm now. It was just in the heat of the moment but obviously, like, I just - I just don’t feel safe, because I couldn’t breathe and yeah.
FVEIC interview
The interview was conducted on 15 November 2022. In that interview, the complainant demonstrates the events which she was narrating:
22.1.She demonstrated the sound of the slap by clapping hands together.[1]
22.2.Describes the child reporting that her father had slapped her face.[2]
22.3.Showed where she had been pushed to the chest, by placing her right hand touching at the top of her rib cage, but below her neck.
22.4.Placing one hand on her chest, as she had previously demonstrated, and at the same time placing her left hand on her neck with the palm facing toward her neck at the front of her neck and the thumb pointing towards her back and alongside the left hand side of her neck.[3] But having initially maintained that she was not sure whether it was one or both hands that was used to choke her, she demonstrates later with both hands to her neck.[4]
22.5.Described showing the red marks on her neck to her husband.[5]
22.6.She reiterated that she knew it was a slap by the type of noise – and the scared hurt scream which followed and which only a mother would know,[6] and further added that her husband had admitted slapping the child to the face and that the child’s face was very red.[7]
22.7.She demonstrated that her left chest at the top of the rib cage was very sore.[8]
22.8.When asked if she had markings on her neck, she volunteered her neck for examination by the police officer, and says, I think you can see them (referring to the marks) – whilst pulling the collar of her shirt wider to facilitate a view of her neck. [9]
[1] P2 - 06:28.
[2] P2 - 06:52.
[3] P2 – 10:59.
[4] P2 – 25:30.
[5] P2 – 17:03.
[6] P2 – 21:27.
[7] P2 – 21:47.
[8] P2 - 24:41.
[9] P2 – 24:41.
She also referred on a number of occasions to the defendant’s ‘security clearance’ which was at risk because of the allegations she was making.
Oral evidence
When she gave oral evidence before me at hearing on 22 May 2024, she had retained legal representation and made an application pursuant to section 128 of the Evidence Act (ACT) 2011 prior to giving her evidence. I granted her a certificate under that provision.
From the outset the complainant recanted from the version that she had given in her FVEIC.
Q.In the recorded video evidence, you said to the police that you had heard a hard - “I heard a really loud - like a slap”, that was the phrase that you used. My question to you is this: how long was it between hearing that really loud like a slap noise did it take for you to then get to the bathroom where the child was?
A. I - I - I didn’t hear a slap.[10]
[10] TX 47 L 40.
On being pressed as to why it was that she now resiled from the version of events that she had given the police previously, she accepted that; she had spoken with the police on the night of the incident and two days later in the FVEIC interview, that she had attended the hospital and that she had taken the child to the police station on 7 December 2022 for the purpose of being interviewed by the police in relation to this matter.
The complainant stated that she felt the police had pressured her to bring the child in to give a statement and that after giving her own statements just did not trust the police.[11]
[11] TX48.
She explained that in the heat of the moment she was angry about the fact that they had been fighting and that they were in a really bad stage in their marriage and she just wanted divorce because she just wasn’t happy.[12]
[12] TX49.
Over objection from the defendant’s counsel, I granted the prosecution the right to cross-examine the witness as contemplated by section 38(1) Evidence Act.
Regardless of whether she was being examined-in-chief in the normal manner or being cross-examined, the complainant maintained her position that she had not heard a slap, but rather had heard her daughter crying in the bathroom and that her husband had in fact been very patient with the child.
Contrary to what she told the police in all of her previous contact with them, her oral evidence was that; she had gone into the bathroom, found the child standing up in the bath and that it was her who got angry - and to use her own words “enraged,”[13] and demanded that he (the defendant) leave the bathroom, but he wouldn’t.
[13] TX 62 L40.
Q. So he wouldn’t leave the bathroom and then what happened?
A.And then I got enraged and I just started [hitting] him in the head, in the side of the head with a closed fist. And I kept hitting him and he still wouldn’t leave, and he just started grabbing my collar and we were, like, pulling each other, like, had each other’s collar. I grabbed him by the collar. So I was trying to hit him and then I grabbed him with, I think my left hand, grabbed his collar - his necklace broke while she was trying to pull him so I could hit him. He was just trying to keep me at bay. He was pushing, like, trying to push me away to make me stop. My daughter has seen all of it. She was in the bathroom. At that point, I believe she may be standing outside of the bath. She might have had her towel, she might not have. We were just pushing each other and I was hitting him, still trying to hit him. We kind of pushed each other and made our way to the bedroom at this point. And then I started just kicking him, really, like laying into him.[14]
[14] TX 63 L15.
Q, When you say you were kicking him, where was he?
A. He was right in front of me. So is using my feet, legs to kick him.
Q. Kicking where?
A. In the side of his legs.
Q. And how is it you were kicking?
A.I was standing and he was a feet - couple of feet in front of me, like, he was at an arm’s length. We hadn’t let go of each other. We were still holding each other. He was trying to keep me at bay.
Q. Then what?
A.After I was kicking him, I was lunging at him, trying to hit him. He was pushing me away, keeping me at an arms distance, just pushing me away - pushing me away. I was falling onto the bed in the spare room. I would get back up, try to kick him, try to hit him again he was just pushing me away - pushing me away. By the end of it - a minute or so into it, he sort of - while we were pushing each other, he came onto the bed on top of me and he was pushing me, and his hands were on, like, here on my chest
Q. How did he get onto the bed?
A. Well I pulled him on. Say I wouldn’t let go of him.
Q. Why did you do that?
A.I was trying to punch him. Because I couldn’t let go. I was trying to hit him. And I guess, he lost balance, maybe between the kicking him and trying to punch him, that we just fell onto a bed…….. He had his hand on the top of my chest where I did report having pain. So a - by - by that time, I’m kicking him in his legs, he got up, I’ve tried to lunge at him again, he’s pushed me down again onto the bed, tried to get me away he managed to move behind the - like, sort of where the walkway is and out of the door. And that basically where - where it ended. My daughter was in the room for partially some of that time. And, yes. She was just yelling mum stop. Dad stop. Because we were obviously like I was trying to hit him in an altercation, like holding each other but he did not choke me that never occurred.[15]
[15] TX64 L15.
This version of events given in her oral evidence was in complete contrast to the evidence that she had given in her Family Violence Evidence-In-Chief Interview.
Testing the Evidence
It was clear to me that the complainant was obviously distressed when participating in her FVEIC interview. Her presentation in that interview is very persuasive. In addition to her demeanour during the interview, she has made a series of concessions in relation to her actions in grabbing hold of and pushing the defendant during the argument. She has not painted the aggression as being all one way.
As a magistrate, contrary to some popular views, I have no special ability to determine whether someone is lying by simply looking at them. Whilst the impression I’m given of the complainant in the course of her FVEIC interview, a persuasive performance is not enough.
Whilst the complainant appears genuine in the course of the FVEIC, I must consider what evidence surrounds the allegations which were made in the FVEIC interview.
Choking denied
Of particular significance is the statement made in oral evidence that the defendant did not choke her.
During the FVEIC interview the complainant stated that she started hitting the defendant in the head with a closed fist. But after this he grabbed her collar and they were pulling each other by the collar and she was trying to hit him and she broke his necklace while she was trying to pull him so that she could hit him.
She then described him placing one hand on her chest and at the same time demonstrating by placing her left hand on her neck with the palm facing toward her neck at the front of her neck and the thumb pointing towards her back and alongside the left hand side of her neck.[16]
[16] P2 – 10:59.
Having been initially unsure whether it was one or both hands that was used to strangle her, she demonstrates later with both hands to her neck.[17]
[17] P2 – 25:30.
She described that the defendant pushed her onto the bed with his hand straight away on her throat (and she demonstrates this motion).[18] She describes it as very deliberate and not an accident.
[18] P2 – 22:55.
She then explains that it was at least seven seconds because she could not breath and was choking and thought she was going to die in front of her daughter, and that her face felt very hot.[19]
The child’s evidence
[19] P2 - 23:59.
On 7 December 2022, police conducted an electronically recorded Evidence-In-Chief Interview with the child. That interview was conducted in the presence of an intermediary.
The child had been taken to the police station by her mother for the purpose of that interview. The defence objected to me receiving that interview into evidence. I ruled against their objection, and my decision in relation to that objection is annexed to this decision as Annexure 1.
I received that interview into evidence as Exhibit P7.
The child presented as a highly intelligent and engaging five-year-old child in that interview. Her account of the day in question included that:
45.1.She had been in the bath.[20]
45.2.She wiped something on her dad and then he slapped me here (pointing to her right cheek just below the eye with her right index finger).[21] She felt sad when her dad slapped her.[22]
45.3.And then mum came in and she yelled. She [mum] told him to get out and then she pushed him out into the room (which she demonstrated to the police officer)[23] and he was choking her and then she [mum] called the police.[24]
[20] P7 – 11:37.
[21] P7 – 10:12.
[22] P7 – 11:54.
[23] P7 – 12:23.
[24] P7 – 10:37.
When she was asked what her father did with his hands - without hesitation she placed both hands on to her neck demonstrating a choking motion. She did that with her thumbs to the front of her neck in their hands pointing towards the back of her neck.[25] She described that body part as being her neck and further told Constable Russell that they had been in the bedroom - which was the room where she gets dressed and where her toys are hidden for Christmas.[26]
[25] P7 – 12:38.
[26] P7 – 13:25.
When asked where her parents were, she described that her father was standing and her mother was lying on the bed while she was being choked.[27]
[27] P7 – 14:23.
The child’s evidence was tested in cross-examination by counsel for her father. As one would have expected, cross examination in the circumstances was limited and gentle. It was put to her that she did not now remember what had occurred - she agreed. Further it was put to her that she was repeating what her mother had told her. She appeared confused by that concept.
The complainant’s influence on the child
When the complainant was cross-examined she gave evidence that she felt she was forced to take the child to the interview, however, this was not put to the police witness who gave evidence. She gave evidence that she told the child not to tell the police what mummy had done to daddy or words to that effect.
Whilst the defendant’s counsel had suggested to the child that she was simply repeating what her mother told her had happened, that is inconsistent with the mother’s evidence.
The mother told the court that:
Directly afterward I tried to downplay everything that happened and I guess just make out the mum and dad just had a fight. Dad’s had to go away for a while. Don’t worry about (sic). So I specifically remember when I told is [the child] not to tell police. So we’re driving to the police station to give a statement. In the car I asked ‘what you remember happening between mum and dad when we had a fight?’ and she said ‘not - not much.’
I said what do you remember? And she goes ‘You were hitting dad in the bathroom and that was just like moving away and you were hitting dad.’
I said, “Okay so you’ve seen mummy hitting dad?” She said, ‘Yes.’ I said you can’t tell the police that because if the police know that I was the one hitting dad mummy’s going to get into a lot of trouble and you might not be able to live with me any more.[28]
[28] TX 114.
Contrary to that discussion, the child gave a very persuasive account of her father (the defendant) choking her mother (the complainant).
On the most significant issue in the whole of this hearing, the original allegation of the choking is corroborated by the child in circumstances where it would have been unsurprising if it had not been so.
Post incident actions of the complainant
As well as volunteering the purported marks on her neck to the police officers who were conducting the FVEIC on 15 November 2022, the complainant also attended at the Canberra Hospital on 16 November 2022.
A record of that attendance was ultimately tendered as Exhibit P1 (having had a series of redactions made from it). The pertinent parts of that record are:
55.1.Admission time: 14/11/2022 – 1831
55.2.Reason for attendance, patient presents with, tenderness left chest wall.
55.3.Exam: observations within normal limits.
No hoarseness of the voice observed.
Chest clear. No cardoitid bruitis.
A few blanching erythematious patches over anterior neck <1cm
No ecchymosis observed.
Pharynx unremarkable.
Good range of movement of neck.
Paraspinal muscle tenderness to back of neck as well as tenderness to anterior neck.55.4.Imp: CT spine currently not required given no neurological findings or vertebral tenderness and > 24 hrs since incident.
The reference to a few blanching erythematious patches over anterior neck is a significant finding:
The term erythematious is the adjectival form of erythema which means:
Superficial reddening of the skin, usually in patches, as a result of injury or irritation causing dilatation of the blood capillaries.[29]
The Defendant
[29] The Concise Oxford Dictionary, 6th Edition.
The defendant did not give evidence during his hearing, nor was he required to do so. No inference adverse to him can be drawn from his decision to exercise his right to silence. Nor can the absence of evidence from the defendant be used to fill in any gaps or used as a makeweight for any deficiency in the prosecution case.
The Defendant was interviewed by police on 13 November 2023. A redacted copy of the BWC of the investigating police officer tendered as Exhibit P6.
In that interview the defendant gave a version of events. He stated that the child was ‘twerking’ while she was naked in the bath and then she had wiped boogers onto his arm with one of her fingers (which he demonstrates using index finger of his left hand wiping onto his right forearm).[30]
[30] P6 – 10:38.
He made an admission that he had slapped the child on her face. He demonstrated this as being with his right hand to the left side of his face,[31] and said it was more like when you get scared. Like somebody scares you and it is like an instant reaction. It was a light one and there is no mark there or nothing.
[31] P6 – 10:58.
He then describes his wife coming into the bathroom, and an argument ensuing, and that she began hitting him and punching him, and breaking his chain.[32] He then demonstrates her pushing him onto the bed on his back.[33]
[32] P6 – 12:25.
[33] P6 - 12:28.
He refers to having his hand at the complainant’s neck (which he demonstrates by placing his right hand onto his neck with his thumb to the right side of the neck and the fingers to the left side of the neck)[34] and he refers to the complainant having stated – ‘you’re choking me’.
[34] P6 – 12:38.
I direct myself in accordance with Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 and De Silva v The Queen [2019] HCA 48; 268 CLR 57 that:
64.1.if I believe the accused’s account (as contained in his interview with the police) I must acquit;
64.2.if I do not accept that account but I consider that it might be true, I must acquit; and
64.3.if I do not believe the accused’s account, I should put that account to one side. The question will remain: has the prosecution, on the basis of evidence that I do accept, proved the guilt of the accused beyond reasonable doubt?
In this case, the defendant’s interview with police is more inculpatory than exculpatory. In relation to the important factual contests, it supports the version given by his wife in the FVEIC.
Analysis
I remind myself that I must find facts, draw inferences from them, and apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and defendant are entitled to my verdict free of partiality, prejudice, favour or ill-will. I must deliver my decision according to the evidence.
The prosecution bears the onus of proving the guilt of the defendant. The defendant does not have to prove that he did not commit the offences charged.
The standard of proof for the prosecution is proof beyond reasonable doubt and the defendant cannot be found guilty of an offence unless the evidence satisfies me beyond reasonable doubt of his guilt for each element of the offence.
If the evidence, which I accept, fails to satisfy me beyond reasonable doubt of any or all of the elements of an offence, then I must dismiss the charge.
If I am satisfied that there may be an explanation consistent with the innocence of the defendant, or I am unsure of where the truth lies, I must find the charge has not been proven to the requisite standard.
I can accept all, part or none of a witness’s evidence.
I need to consider the reliability of each witness’s evidence. I remind myself that
The Queen v Murray[35] and also Cubillo v Commonwealth[36] are authorities for the proposition that I may accept some or all of a witness’s evidence and reject some or all of a witness’s evidence.[35] (1987) 11 NSWLR 12.
[36] [2000] FCA 1084; (2000) 174 ALR 97.
I also remind myself that in R v HC[37] his Honour Justice Burns referred to the objectives behind the Evidence (Miscellaneous Provisions) Act regarding permission of the audio-visual recording in family violence proceedings. His Honour said it is recorded at a time when “it is likely to be fresh in the complainant’s memory, thereby usually improving the quality of the testimony.”
[37] [2017] ACTSC 276.
In this case I am faced with conflicting evidence from the complainant. She claims that the original complaint was fabricated because she wanted to get out of the marriage.
Against that, I balance the fact that it is very clear from the evidence given before me that there is good reason for now maintaining that none of this occurred, because both she and her husband have security clearances, which would be adversely affected by any conviction for an offence of this type.
Inferences
The complainant’s conduct in proffering her neck to the police for view (in the course of the FVEIC interview) and attending The Canberra Hospital for an examination of her neck are two acts which are entirely inconsistent with someone who was making up a story about having being choked, knowing that it had not occurred.
On the other hand, that conduct is entirely consistent with having felt pain and/or discomfort and being concerned in relation to that pain and/or discomfort.
I specifically asked the complainant whether she would accept that it is a bit unusual for someone that knows that they have not been touched on the neck to proffer the neck for examination. Her response was that it was unusual in that she knew there were no marks.[38]
[38] TX 108 L35.
I found that answer, to say the least, bemusing. This is more so when she attended at a hospital for a medical examination, which she said was conducted by a nurse and a doctor, which occurred the day after the FVEIC interview and for which she was at the hospital for over five hours, staying until almost 1am for an examination.[39]
[39] Exhibit P1 – Admission time 14/11/22 18:31 (6.31 pm) Discharge time 15/11/22 00:53 (12.53 am).
There is a clear inference to be drawn that the account given by the complainant in the FVEIC interview is the truth of what happened on 13 November 2022. I reject her oral evidence.
Findings
CC2022/12062
I will start at the very beginning of this sad saga. The event that gave rise to this sad series of events was the child’s face being slapped by her father.
He has admitted in the record of interview (Exhibit P6) that he had slapped her in the face. He says that occurred because he was scared. In closing submissions counsel suggested I should find that was an instinctive reaction, and as such there was no intent to apply force to her. I reject that proposition.
Had the defendant slapped the child’s hand away from his forearm when he perceived that she was wiping something on him, that would potentially be an instinctive reaction. That is not what occurred.
What the defendant has done was to slap the child to her face. The child had already upset her father by “twerking” in the bath and further there was tension between the parents surrounding the bathing of the child.
This conduct goes beyond what might be considered reasonable chastisement of a child.[40]
[40] See Lumb v Police [2008] SASC 198 Police v G, DM [2016] SASC 39, R v Terry ; [1955] VLR 114.
I find the defendant guilty of the offence of aggravated common assault
CC 2022/12062.
CC 2022/12060
Regardless of whether I accept or reject the mother’s claim that she now says she did not hear a slap, what is clear and the evidence is that she entered the bathroom and she was “enraged” and appropriately so.
Even on the version she gave in the FVEIC, and the father’s version in his record of interview, the allegation in relation to the push to the chest to get the mother out of the bathroom occurs in circumstances where self-defence arises on the facts.
I cannot be satisfied beyond reasonable doubt that the contact has occurred in circumstances where it was unlawful. I dismiss this charge.
I find the defendant not guilty of the offence of aggravated common assault
CC 2022/12060.
CC 2022/12063
The choking charge is the most serious of the charges which the defendant faces.
The complainant now says in her evidence to me that there was no choking. This is completely at odds with her FVEIC and as such I must consider the surrounding evidence.
The defendant in his record of interview describes and demonstrates placing his hand at the complainant’s neck.[41]
[41] P6 – 12:41.
In her interview, the child describes and then demonstrates how her father placed his hands around her mother’s neck.
The complainant has proffered her neck to the police to review and then gone to the hospital where she has been examined by a nurse and a doctor. The medical notes (Exhibit P1) reveal the presence of “a few blanching erythematious patches over anterior neck.”
It was put to me in closing submissions that those may have been as a result of some other contact. This was never put to the complainant in cross-examination. Further it is entirely consistent with what the defendant himself has demonstrated in his record of interview.
In Gibbons v Perkins[42] Mossop J made the following comments about the ability of magistrates to apply their common sense and life experience in their deliberations:
In any event, there was nothing wrong with the magistrate applying her own common sense and life experience to determine whether or not the prosecution had established its case beyond reasonable doubt.
Finders of fact need to decide how humans are likely to have behaved. Assessments of human behaviour in the social context at issue in any particular case are obviously fundamental to the fact-finding process:
In that process, it is entirely appropriate for the finder of fact to have regard to what they perceived to be "the apparent logic of events":
Different finders of fact may assess likely human behaviour in any particular situation differently. It is for that reason that the diversity of views of jurors and the requirement for unanimity are such important aspects of the criminal process for indictable offences.
They are equally important when charges are dealt with summarily or before a judge sitting without a jury. It is for that reason that it is important for community acceptance of judicial decisions that there is a degree of diversity of background and life experience amongst the judiciary.
[42] Gibbons v Perkins [2021] ACTSC 245 at [541] – footnotes omitted.
In this case, common sense and life experience would suggest that by proffering her neck for police to view and attending upon hospital staff in the manner that she did, the complainant was seeking further confirmation of the assault which had been done to her.
The fact that the hospital staff made a finding, and that the choking was corroborated by her daughter and partially admitted to by the defendant, leave me in no doubt that the version of events put forward by the complainant in the FVEIC interview is accurate and I should reject the complainant’s oral evidence.
While the choking occurred in the midst of a violent disturbance between the parties, on the evidence of the FVEIC, the complainant was lying on the bed with the defendant over her and holding her neck for approximately seven seconds. In that case, self defence does not arise on the facts.
I find the defendant guilty of the offence of choking CC 2022/12063.
CC 2022/12061
In her FVEIC the complainant describes that after the defendant stopped choking her she got off the bed. At that point in time the defendant pushed her and she fell back onto her daughter’s bed.[43]
[43] P2 – 25:17.
There is nothing in relation to this allegation which gives any insight into its temporal relationship to the choking incident. It is unclear whether it is immediately after the choking has occurred or whether it was within a short time thereafter.
In any case, the allegation is a bare allegation with no details surrounding it. There is insufficient evidence upon which I could make a positive finding in relation to this charge.
I cannot be satisfied beyond a reasonable doubt in relation to this allegation.
I find the defendant not guilty of CC 2022/12061.
| I certify that the preceding one hundred and six [106] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Richter. Associate: Conor Ammett Date: 10 December 2024 |
ANNEXURE 1
Application to exclude interview of the child XK
In this case, the defence has made an application to exclude the Evidence-in-Chief interview of the child XK.
Then interview was conducted in the presence of a police officer who is unrelated to the investigation. No independent support person was available to the child at the relevant time. It is important to note that the interview of the child was in his capacity as a witness to allegations of family violence which is alleged to have occurred between the defendant and his wife, who are the parents of the child XK.
The defence has referred me to division 10.7.2 of the Crimes Act (ACT) 1900. The Division is entitled Preliminary procedures in relation to children and young people.
- As set out in the defendant’s written argument, the majority of the division deals with children alleged to have committed offences. He goes on to say that it is abundantly clear in this matter that the child was under restraint on the facts established.
I disagree with that assessment of the situation.
CRIMES ACT 1900 - SECT 252E
Meaning of under restraint
For this subdivision, a child or young person is under restraint if—
(a) the child or young person is under restraint as a result of having been lawfully arrested or detained; or
(b) the child or young person is under restraint in relation to an offence and a police officer suspects on reasonable grounds that—
(i) the child or young person committed the offence; or
(ii) the police officer would be authorised under a law in force in the Territory to arrest the child or young person for the offence; or
(c) the child or young person is in the company of a police officer in connection with the investigation of an offence or possible offence.
Both parties have referred me to the explanatory statement for the creation of division 10.7 of the Act. It commences with the following words:
This clause adds a new Division to the Crimes Act 1900 which details procedures that police need to observe when investigating dealing the offences suspected to have been committed by a child or young person.
Further as pointed out by the defendant in his outline, the ES in relation to section 252E is couched in these terms:
The broad definition of the term under restraint is intended to engage the procedural rights and safeguards afforded to children and young people in circumstances where children or young people are more likely to make admissions or incriminating comments. These safeguards are intended to assist in ensuring that any admissions or statements made by child or young person during the course investigation are made voluntarily and are reliable.
For the child to be under restraint as contemplated at section 252E(a) or (b) they must have been lawfully arrested or detained or under restraint in relation to an offence and a police officer suspects on reasonable grounds that the young person committed the offence or the police officer would be authorised to arrest the child or young person for the offence.
The defendant relies on section 252E(c) the child or young person is in the company of a police officer in connection with the investigation of an offence or possible offence.
10.Section 252E creates a cascading series of circumstances in which a child is considered to be under restraint, starting with at the extremity having been arrested, to being a suspect, to being a part of an investigation.
11.In his response to the prosecution’s outline, the defendant says that those words “in connection with” are capable of considerable breadth and in support of that refers me to R v Orcher.[44]
[44] 48 NSWLR 273.
12.Importantly, in Orcher Spiegelman CJ said this:
The phrase “in connection with” is capable of considerable breadth, however it always takes its colour from its surroundings.
13.The defendant also refers me to the decision of the full Court of the Federal Court in Burswood Management Ltd[45] in which the Court said that:
[45] Burswood Management Ltd v Attorney-General (Cth) [1990] FCA 203.
The words “in connection with” are words of what import and the meaning to be attributed to them depends on the context and the purpose of the statute in which they appear.
14.Each of the statements of the superior courts are simply a restatement of the common law proposition of the ejusdem generis rule:
Where general words or phrases follow a number of specific words or phrases, the general words are specifically construed as limited and apply only to persons or things of the same kind or class as those expressly mentioned.
15.The rule remains as part of the common law and part of the process of statutory interpretation. I note the comments of the Supreme Court that the rule should be deployed with considerable caution.[46]
[46] Commissioner for Housing v Key [2004] ACTCA 17.
16.Given the cascading nature of the circumstances set out in 252E, section 252E(c) cannot be read in a vacuum.
17.Section 252E(c) includes circumstances where the young person is in the company of a police officer in connection with investigation of a “possible offence”. Read in conjunction with the remainder of the section, section 252E(c) has application where it is not certain that an offence has been committed, but the young person is a “potential suspect”.
18.Adopting the purposive approach of the interpretation of the legislation, as required by the Legislation Act, it is clear that the intent of section 252E is directed at the protection of the interest of the child where that child is a suspect in offending or potential offending.
In the company of a police officer
19.For section 252E(c) to have any application, the child must be “in the company of a police officer”.
20.When one drills down into section 252F, even the expanded definition of being in the company of a police officer, this section is to be read as a whole.
21.Section 252F(2) expands the operation of subsection (1) by including circumstances where a police officer believes on reasonable grounds the child or young person has committed the offence or where the child or young person is in lawful custody in relation to the offence.
22.Further, reading the section as a whole, section 252F(3) only appears to have application where the child or young person is contemplated as being the offender or potential offender in relation to the circumstance being investigated by the police.
23.Section 252G clearly commences with application where a police officer suspects that on reasonable grounds that the child or young person may have committed, or be implicated in the commission of an offence or is holding the young person under restraint.
24.That the section is aimed at protecting the rights of the child who is a suspect in crime, is clearly discerned by contemplation of section 252G(2)(a) which contemplates that a person (who is an adult and who the police officer does not believe on reasonable grounds to be an accomplice of the child or young person in relation to the offence)[47] is present.
[47] Emphasis added.
25.Unless and except in circumstances where the child is being interviewed about an offence in which the child is a suspect, section 252G(2) has no work to do. Its presence is a contraindication of the position put by defence, and supports an interpretation of the section as being to protect the rights of children and young people who are subject to police investigation in circumstances where they are suspects. This goes back to the opening lines of the ES - procedures the police need to observe when investigating in dealing with offences suspected to have been committed by a child or young person.
26.Given the meaning of “under restraint as set out in section 252E”, this section has no application in the current circumstances.
27.Contrary to what the defendant set out in his written outline referring me to Project Blue Sky[48] and in Eastman, to find the outcomes sought by the defendant in its application would involve me in a process of torturing the words to the legislation to such an extent that they would be read against their natural meaning and against their intent.
[48] (1998) 194 CLR 355.
28.The only way to find otherwise, is to cherry pick the words used in section 252E(c) and read them in a vacuum
29.Whilst the ES is not determinative, it clearly confirms my view of the intent of the legislation on its face. I reject the defendant’s application to exclude the recorded conversation with the child XK.
Discretion to exclude the evidence
30.If I were wrong in my assessment and the evidence has been obtained in breach of Division 10.7.2 Crimes Act, this would enliven a discretion to exclude the evidence by operation of section 138 of the Evidence Act.
EVIDENCE ACT 2011 - SECT 138
Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) -
(3) Without limiting the matters that the court may take into account under subsection(1), it must take into account—
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty(if any) of obtaining the evidence without impropriety or contravention of an Australian law.
31.Section 138 (1) would apply in this case, but section 138(2) has no application.
32.The process that I must undertake involves a weighing exercise between the desirability of admitting the evidence and the undesirability of admitting the evidence given the manner in which it was obtained.
33.This matter involves serious allegations of choking made against the defendant. Those allegations were made by the child’s mother in a Family Violence Evidence-In-Chief Interview. The mother now resiles from those allegations and says that the evidence she gave in the FVEIC was false.
34.If there was a failure by the police, in my view it does not affect the rights of the child, as she was not being asked to incriminate herself, but rather to give a narrative events in a situation in which she is quite simply witness to a fight which has occurred between her parents.
35.In assessing the evidence of the police officers, I come to the conclusion that there was no deliberate impropriety on their part, as they have perceived the legislation in the same manner in which I have, that is, it is written to protect the interests of children who are suspects in the course of a criminal investigation.
36.The child in this case is the only independent observer who is able to be called by either party. As such this evidence is important.
37.If I was wrong as to the application of division 10.7 Crimes Act (ACT) 1900, I would exercise my discretion to admit the evidence of the electronic record of interview which was undertaken with the child.
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