Cini, Danuta v The Queen
[2009] NSWDC 423
•4 November 2009
CITATION: CINI, Danuta v R [2009] NSWDC 423
JUDGMENT DATE:
4 November 2009JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: I set aside the conviction. CATCHWORDS: CRIMINAL LAW - conviction appeal - assault occasioning actual bodily harm - history of hostility between appellant and victim - no eye witnesses - photographic evidence of injuries to appellant - unsatisfactory aspects about both prosecution and defence evidence - state of prosecution evidence leaves reasonable doubt, also self defence not excluded LEGISLATION CITED: Crimes Act 1900 s 59(1)
Crimes (Appeal and Review) Act 2001 s 20(1)PARTIES: Danuta Cini
ReginaFILE NUMBER(S): 2008/70389 COUNSEL: Mr Gunning for Ms Cini SOLICITORS: Mr Kiru for the Director of Public Prosecutions
JUDGMENT
1. Danuta Cini appeals to this court from a conviction imposed at the Blacktown Local Court on 27 July 2009 by Magistrate Keady. Mrs Cini was convicted of assault occasioning actual bodily harm, which is a crime against s 59(1) of the Crimes Act 1900.
2. She argues in this court, through Mr Gunning of counsel, that I should not be satisfied beyond reasonable doubt of her guilt of that crime.
3. Mr Kiru, who appears for the respondent Director of Public Prosecutions argues that the evidence is such that I can be satisfied beyond reasonable doubt.
4. There were tendered in the appeal the exhibits before the magistrate, including a record of interview between the police and Mrs Cini. In addition, I have read the transcript of the evidence before the learned magistrate.
5. The prosecution called three witnesses, a police officer named Constable Weisback and a security officer named Andrew Burrows, in addition to the person who claimed to be the victim of the assault, Mirjana Speljko.
6. Mrs Cini gave evidence herself before the magistrate.
7. There were no eye witnesses to what happened, apart from Mrs Cini and Ms Speljko.
8. The events giving rise to Mrs Cini being charged occurred in a shopping centre car park on 17 December 2008 at Blacktown. Mrs Speljko said that she came back to her car in the car park and suspected that Mrs Cini had damaged her, Mrs Speljko’s, car.
9. I should observe at this stage that Mrs Cini and Ms Speljko are neighbours; they live next door to each other. There is evidence from both witnesses that there has been hostility between them for many years.
10. Returning to Ms Speljko’s account, she noticed when she returned to her car that her car had been scratched. She suspected that the scratch had been made by Mrs Cini. She saw Mrs Cini about to leave the car park in her own car. She put her hand out on to Mrs Cini’s arm, saying “You can’t go anywhere. I want to talk to you, we need to sort this out.”
11. Ms Speljko said what happened then was that “Mrs Cini then came out of her car, she stopped her car, she came out of the car and she said that not to touch her, and she just went for me”. Ms Speljko’s evidence was that Ms Cini grabbed her and was too strong for Ms Speljko. Ms Cini, Ms Speljko said, grabbed her by the hair. She was not strong enough to defend herself. The fight was broken up by other people.
12. Hair was pulled out of Ms Speljko’s head by Ms Cini. The other people who broke up the fight may not have given evidence - I say may not have given evidence because Mr Burrows did, but his evidence clearly relates to events after the fight.
13. Ms Cini’s account of the events on the same day was that she returned to the car park and was about to get into her car when she received a blow to the back of her head which knocked off her glasses, poking her in the right eye. She turned around and found that Ms Speljko was there. She tried to push her away, but Ms Speljko kept coming back, punching her. Eventually she got away by pushing her away. She denied scratching her car before these events.
14. Mr Burrows, the security officer, turned up. He found a clump of hair on the ground. Ms Speljko reported the matter to the police. The police interviewed Ms Cini, who gave a detailed account in the record of the interview.
15. The question for me is whether I am satisfied beyond reasonable doubt that Ms Cini is guilty of the charge. There are no eye witnesses who were called by the prosecution who could give a direct account of the altercation between the two persons.
16. There was, in my opinion, clearly a physical altercation. Both persons received injuries. I accept that a photograph of Ms Speljko’s head shows a patch where there is missing hair. I accept that the hair on the ground clearly came out as a result of the fight.
17. On the other hand, there is photographic evidence produced by Ms Cini of injuries which are consistent with her account of her glasses being knocked off.
18. There is, as I said, a long history of hostility between these two persons.
19. I am not in a position, because I have not seen either give evidence, and because it is not otherwise obvious, to determine that either of them is not telling the truth. However, it must be the case, in my view, that they should not be regarded as independent observers to these events. Their evidence must be seen as coming from, in each case, the point of view of a person who felt a great deal of hostility to the other person involved.
20. There are unsatisfactory aspects about the evidence of both witnesses. Both Mr Kiru and Mr Gunning highlighted those aspects.
21. As Mr Kiru pointed out, the evidence given by Ms Cini before the magistrate was inconsistent with the account given by her to the police insofar as what happened immediately before the physical altercation. It was, as Mr Kiru said on that point, the complete opposite. He pointed to the evidence of the hair on the ground as being corroborative of the prosecution case. The evidence of the hair, in my view, is corroborative of the fact that there was a physical altercation between the two persons, but not strongly corroborative of the view that Ms Cini was guilty of an unlawful assault on Ms Speljko.
22. Ms Speljko’s evidence had some unsatisfactory aspects as well. In her cross-examination by Mr Gunning, who appeared in the Local Court for Ms Cini, as well as here, she was not forthcoming in answering questions about whether she had placed her hand on Ms Cini’s arm as Ms Cini was attempting to drive away from the car park. She acknowledged in cross-examination that she had said to Ms Cini, “You are not going anywhere from here. We have to talk to security.” She acknowledged, after three or four attempts by Mr Gunning to ask the same question, that she had tried to hold Ms Cini by her right arm.
23. There was also an unsatisfactory aspect of her evidence in that the security officer witness, Mr Burrows, gave evidence that Ms Speljko had told him that her car had been swiped or scratched whilst Mrs Cini was driving out. He confirmed that Ms Speljko said to him that “Mrs Cini had brushed her car whilst driving out”. He said that “the exact words that she used at me” were “that it had been brushed or scratched”.
24. When Ms Speljko was asked whether she had told Mr Burrows that Ms Cini had brushed her car whilst driving out, Ms Speljko replied “I have never said that, because she wasn’t next to my car.”
25. Mr Gunning also says that the prosecution has not excluded the reasonable possibility that Ms Cini was acting in self-defence. That submission is based upon the admission by Ms Speljko that she tried to hold Ms Cini by her right arm, saying “You are not going anywhere from here. We have to talk to security.”
26. To my mind, the state of the evidence is such that I cannot be satisfied beyond reasonable doubt that Ms Cini is guilty of this offence. There are, as I have said, unsatisfactory aspects about both witnesses’ evidence, but it is the evidence of the witness who supports the case against Ms Cini that I have to be satisfied of beyond reasonable doubt in this case. The aspects of that evidence which I have found to be unsatisfactory mean that I cannot reach that degree of satisfaction about Ms Cini’s guilt. Also, I accept the submission of Mr Gunning that, on the evidence which I have referred to, there has not been excluded the reasonable possibility that Ms Cini was acting in self-defence at the time.
27. Accordingly, under s 20(1) of the Crimes (Appeal and Review) Act 2001, I determine this appeal against conviction by setting aside the conviction.
28. I will return the exhibits to my associate to place with the court file.
Anything else?
KIRU: No, your Honour.
HIS HONOUR: Thank you both for your assistance.
SHORT ADJOURNMENT
HIS HONOUR: Now, there is something I had to attend to, some other order, some other matter.
KIRU: As a consequence of this conviction, your Honour, an AVO was imposed.
HIS HONOUR: Is that the subject of an appeal, Mr Gunning?
KIRU: If the conviction is set aside, your Honour, there can’t be any AVO, because that’s a consequence of the conviction.
HIS HONOUR: So what do I do?
GUNNING: I would ask your Honour set aside not only the conviction but the orders that the magistrate had made. That would deal--
HIS HONOUR: What’s my power to do that?
KIRU: Yes, your Honour.
HIS HONOUR: What’s my power?
KIRU: Because the AVO was the consequence of the conviction, if your Honour could look at the Crimes (Domestic and Personal Violence) Act 2007, section 39, subsection (1)--
HIS HONOUR: Sorry, now just say that again, Mr Kiru.
KIRU: The Crimes (Domestic and Personal Violence Act) 2007, that’s in volume 1. I can hand u-p--
HIS HONOUR: In volume 1, did you say?
KIRU: Yes.
HIS HONOUR: Where is it, towards the back?
KIRU: That’s after the Crimes Act--
HIS HONOUR: I’ve got it. And the section was?
KIRU: 39, subsection (1).
HIS HONOUR: All right, just let me read that. Is this a domestic violence offence? Or is it an offence against section 13? How does that - section 13--
KIRU: Even though they say domestic, it says apprehended violence order, your Honour.
HIS HONOUR: What’s the definition of a domestic violence offence? See section 11. How was it that such an order was made? How does it fit into section 39? There had to be a domestic relationship, according to this. I assume there wasn’t.
GUNNING: Your Honour, perhaps if I could assist with a fairly short point. Firstly, I apologise for your Honour having to come back. Your Honour did ask if there were any orders that needed to be made, and I didn’t say so. The appeal, the notice of appeal states that Ms Cini appeals on the following grounds, (a)--
HIS HONOUR: I’ll just look at the papers, thanks.
GUNNING: So if your Honour has the front page there--
HIS HONOUR: I do.
GUNNING: It will say, below the details of the appellant, “I am appealing on the following grounds - cross out which is not applicable: (a) I am appealing the above conviction/order because I am not guilty, and (b)” - so because one of the grounds is an appeal against conviction or order, “because I am not guilty”, that would enable your Honour to not only of course set aside the conviction, but the order as well, the AVO, and in any event, the AVO, as I understand it, followed the conviction for an assault.
HIS HONOUR: How?
GUNNING: I don’t have the particular provision of the Crimes--
HIS HONOUR: Mr Kiru says it’s section 39. I don’t see - was it her Honour or his Honour?
GUNNING: His Honour.
HIS HONOUR: Did his Honour say anything in the transcript about - I’m just wondering what power the magistrate had to make such an order.
GUNNING: Having a look at the transcript again, your Honour--
HIS HONOUR: What does it say in the transcript?
GUNNING: On page 50, lines 47 to 53--
HIS HONOUR: He says, “I am also going to make the apprehended violence order sought.”
GUNNING: Yes. So what we are seeking by the appeal is not only, of course, for the conviction to be set aside, but for that order to be set aside as well, which is stated on the notice of appeal.
HIS HONOUR: So you’ve appealed against the - yes, there is an appeal against - it looks as though it’s on this file as well. All right. Is it under the same - the appeal provisions for - section 84. It looks as though section 84 of the Crimes (Domestic and Personal Violence) Act 2007 subsection (2) is what you need to be looking at:
- “An appeal may be made to the District Court by the defendant against the making of an apprehended violence order by the Local Court. An appeal under subsection (2) may be made under part 3 of the Crimes (Appeal and Review) Act,”
which is the same part,
“ in the same way as an application by a defendant against a conviction.”
Okay, and you’ve appealed against that as well, is that right?
GUNNING: Yes.
29. I will add to my orders, under section 84 of the Crimes (Domestic and Personal Violence) Act 2007, and section 20 of the Crimes (Appeal and Review) Act 2001, I determine the appeal against the apprehended violence order by setting aside the order.
Does that deal with it?
GUNNING: Yes, your Honour.
HIS HONOUR: I thought there was, there was separate legislation, the domestic violence legislation deals with appeals, and so in effect there have been two appeals, not one. There is an appeal against the conviction and an appeal against the order. That’s the way it seems to me. Does that sound right?
GUNNING: I think so, your Honour, yes.
KIRU: Yes.
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