Clark v Firth - [2022] NTSC 43

CITATION:Clark v Firth [2022] NTSC 43
PARTIES:CLARK, Adam
v

FIRTH, Justin Antony

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  Appeal from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 31 of 2021 (22022341)
DELIVERED:  29 June 2022

HEARING DATE:  4 May 2022
JUDGMENT OF:  Burns J
REPRESENTATION:
Counsel:
Appellant:K Roussos
Respondent:  D Castor
Solicitors:
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number:  Bur2208
Number of pages:  20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Clark v Firth [2022] NTSC 43

No. LCA 31 of 2021 (22022341)
BETWEEN:

ADAM CLARK

Appellant

AND:

JUSTIN ANTONY FIRTH

Respondent

CORAM: BURNS J
REASONS FOR JUDGMENT
(Delivered 29 June 2022)

The appellant was charged in the Darwin Local Court with one charge contrary to s 188 of the Criminal Code Act 1983 (NT) alleging that on 21 June 2020 he assaulted NI. The charge alleged two circumstances of aggravation, the first being that NI suffered harm, and the second being that NI was a female and the appellant was a male. To this charge the appellant pleaded not guilty and the charge proceeded to a hearing before a Judge of the Local Court on 16 June 2021. On that date the trial Judge found the appellant guilty of the offence and the proceedings were adjourned to a later date to allow, inter alia, for a supervision assessment report under s 103 of the Sentencing Act 1995 (NT) to be prepared. Due to COVID-19 issues, sentencing was delayed until 23 August 2021. On that date the trial Judge recorded a conviction and sentenced the appellant to 3 months’ imprisonment.
On 23 August 2021 the appellant lodged an appeal against his conviction. There was no appeal against the sentence imposed. Initially, there was some concern that the appellant would require leave to appeal against his conviction on the basis that conviction had occurred on 16 June 2021 and the provisions of s 177(2) of the Local Court (Criminal Procedure) Act 1928 (NT) requires that an appeal be instituted “within 28 days from the time of the conviction, order, or adjudication appealed from.” While the trial judge found the appellant guilty of the offence on 16 June 2021, she did not formally record a conviction until 23 August 2021, which was the same date that the appellant commenced his appeal against conviction. The respondent did not dispute this analysis.
The grounds of appeal
The appellant pleaded the following two grounds of appeal:
(a) the conviction was unsafe and unsatisfactory; and
(b) the trial Judge erred in law by improperly intervening during NI’s evidence such that the appellant lost the opportunity to make a “no case” submission.
Ground of appeal (a): unsafe and unsatisfactory conviction
The complainant, NI, gave evidence that she met the appellant on an online dating site in about March 2020. She met him in person around 28 May 2020 and they developed a romantic relationship. Around that time the appellant commenced staying at the complainant’s house nearly every night.
On the afternoon of 21 June 2020, the complainant drove the appellant to his former partner’s house and picked up his 2-year-old daughter. They then drove to an establishment named “Cazaly’s” in Palmerston with the intention of playing pool, drinking and having dinner. On the way to Cazaly’s the appellant became agitated. After arriving at Cazaly’s at about 4 pm, the appellant started acting jealously towards the complainant and accused her of wanting to engage in sexual activity with a 19-year-old “Sharks” player. The complainant said that the appellant began acting rudely to her, and she suggested that they go and have dinner. The appellant continued to behave rudely to her, and she began to ignore him. The complainant started watching the “Sharks” playing on TV. The appellant started to say to his 2-year-old daughter that NI didn’t want to “fuck” him anymore and wanted to “fuck” other men.
The complainant testified that she consumed about 4 mid-strength beers during the time they were at Cazaly’s.
The complainant said that after dinner the three of them left Cazaly’s and they returned to her residence. They stopped on the way to allow the appellant to purchase a carton of beer. At the complainant’s house, the appellant’s daughter started watching television. The complainant put the beer in the fridge, put the rubbish out and went out the back of the house and sat on an outdoor lounge. She started smoking a cigarette and drinking a beer.
The complainant gave evidence that the appellant came out of the kitchen and swore at her. She ignored him. She looked away from the appellant, and as she looked back “I had his big hand coming at full force at me. It went whack, my head knocked back. And I just jumped up and said “Get the fuck out of my house”, and followed him to the back doors”. The complainant said that she had three dogs, including two dachshunds. As the appellant started to leave he kicked two of the dogs and knocked the beer can out of the complainant’s hand.
Instead of leaving, the complainant said the appellant then went into the garden and started ripping shade cloth off a side fence. The complainant felt fearful and went to the back door and tried to close the flyscreens and lock them, so as to lock the appellant out of the house. The complainant testified that the appellant grabbed the flyscreens and ripped them aside with force. The complainant continued to move into the house and grabbed her phone. The appellant followed her and took the phone out of her hands. The complainant then moved to the front door and then out of the house, followed by the appellant. The complainant gave this evidence about what then occurred:
I walked through my carport to my neighbour’s house – Chris and Lisa Davies. And he said, “What, you going to go there for help? I’ll come with you. I’ll smash him, blah, blah, blah.” And he got in front of me before I get into his door. And I just said, “Look calm down”, just to leave them alone. And I walked back out to the middle of the street, where I was calling for help. I said, “Help, help, this man is going to hit me. Please call the police.” And then my neighbours started to – one by one trying to come out of their houses. And Lisa Davies came up asking if I was all right. I’m bleeding and, yeah.
The complainant testified that the appellant was walking up and down the street, swearing and threatening to kick the complainant’s dogs again. He then ran into the house, collected his belongings and his daughter and left on foot. Police subsequently attended the scene. The complainant stated that she was too frightened to stay at her house that night, so she stayed with a work colleague. The complainant said that she recommenced her relationship with the appellant about a week later, but the relationship finally ended around the end of July 2020.
The prosecutor asked the complainant whether she sustained any injuries as a result of this incident, and the complainant said, “Just a sore nose, and my work colleague (DD) noticed that I had sort of like light bruising around my eyes.” The complainant said that her nose was sore for “about a month”. She did not seek medical treatment.
In cross-examination, the complainant agreed that she made a statement to police on 22 June 2020, the day after the alleged assault. She agreed that there was no mention in that statement of her sustaining any injury. It was suggested to the complainant that she had not told her neighbours, Christopher or Lisa Davies, that she had a sore nose after the alleged assault, to which the complainant responded “No, I told them that he hit me with his palm. And he’s in my nose, and it was sore. I wasn’t sure if it was bleeding. They asked – they had a look and checked me over.”
It was suggested to the complainant that she and the appellant had argued on 21 June 2020 about her failure to pay the appellant $200 which she had promised him for erecting the shade cloth. The complainant denied that she had ever offered to pay the appellant for that task. It was also suggested to the complainant that she and the appellant had argued about the appellant wanting sex on 21 June 2020, and the appellant said that she was cleaning her house and had told the appellant “no”.
The complainant stated that she had not consumed alcohol until she arrived at Cazaly’s. She could not remember how much alcohol the appellant consumed that day. She denied the proposition that the appellant had not assaulted her.
The prosecution called evidence from Constable Peter Cousins who attended the incident involving the complainant and the appellant on 21 June 2020. In company with another police officer, Constable Cousins attended outside the complainant’s residence at about 7:30 PM that evening. He saw the complainant standing in the driveway of her residence and a number of people standing along the street. Constable Cousins gave evidence that the complainant told him that the complainant, the appellant and the appellant’s daughter had been at Cazaly’s earlier in the evening where there had been “a bit of an altercation”. After they returned to the complainant’s residence there was a further “altercation” in which the complainant alleged that she received an open palm strike to the nose from the appellant. Constable Cousins stated that the complainant appeared distressed, angry and frustrated. He did not observe any physical injuries to the complainant.
The written statements of Christopher Davies and Lisa Davies were tendered by the prosecution during the hearing as exhibits with the consent of the lawyer representing the appellant. The statutory declaration made by Lisa Davies on 10 June 2021 stated that on a date about 12 months earlier, the complainant knocked on her door at about 8 PM one night. Ms Davies stated that the complainant appeared distressed, her voice was raised and she was upset. The complainant said something like “He’s hit me, I’m not putting up with that”. Her husband, Christopher Davies, called police and Ms Davies waited with the complainant until police arrived.
Christopher Davies prepared a statutory declaration dated 8 September 2020. In it, he stated that on 21 June 2020 at approximately 7:30 PM he heard a loud bang on his front door. He opened the door and saw the complainant. The complainant said that she had been assaulted by a male at her house. Mr Davies walked into the front yard and heard some banging from the complainant’s residence, but he could not see what was happening. The complainant asked him to call police, which he did on his mobile phone. Mr Davies did not see any physical altercation between the complainant and the male and he did not see any injuries to the complainant. He recalled that the complainant stated that the male had hit her in the face for unknown reasons. He then saw the male leave the house with a young child and walk towards a nearby park.
The appellant gave evidence in the proceedings in the Local Court. When asked to recall the events of 21 June 2020 the appellant stated:
Okay, well in the afternoon we were – we were – I was mopping and vacuuming. I’m not sure what [the complainant] was doing, but I was mopping and vacuuming. I was under the impression that I’d get sex before we went out, we were going to Cazaly’s. That didn’t happen. I was already upset by this. We went to Cazaly – went and got the little girl. Went to Cazaly’s. We were playing pool. Everything was fine. [The complainant] texted me. This upset me.
The appellant stated that there had been an argument between himself and the complainant at the complainant’s residence because he had assumed that “we were having sex before we went to Cazaly’s”. There was also an argument, the appellant said, about the complainant’s failure to pay him the sum of $200 which she had offered to him if he erected the shade cloth. They then went and collected the appellant’s daughter and drove to Cazaly’s. The appellant stated that the complainant had consumed two or three mid-strength beers before they went to collect his daughter.
At Cazaly’s, the appellant said, the complainant had sent him a text message about a football player. He said that this made him angry “Because she was talking about this other guy when – making me feel undesirable”. They then went and had dinner. The appellant stated that he consumed two or three beers at Cazaly’s. After dinner they returned to the complainant’s residence. The appellant stated that at one point his daughter began to cry and he thought that one of the complainant’s dogs may have scratched her, so he picked her up and comforted her. He then went outside to join the complainant. He was upset and insisted that the complainant “do something about the dog”. The appellant said that the complainant “told me to get fucked”. He then ripped down the shade cloth and the complainant told him to get out. The appellant stated that the complainant then ran out the front of the house. He began collecting his belongings and his daughter before leaving through the front of the house. He said that he called a taxi and walked to the other side of the park where they met the taxi and returned to his residence. He denied assaulting the complainant.
In cross-examination, the appellant agreed that he was upset because he had been asked to clean the complainant’s home and that “he didn’t get any sex”. He agreed that he was pretty upset. He also agreed that he didn’t like the complainant texting him a photograph of another man at Cazaly’s. He said this make him angry. He agreed that he then said to the complainant “Why don’t you go and fuck him”. The appellant denied taking the complainant’s mobile phone from her and denied kicking the complainant’s dogs. He agreed that when he came out the back of the house after they had returned from Cazaly’s, the complainant was seated on the lounge and that he swore at her. He agreed that the complainant ignored him. He continued to deny striking the complainant.
In his closing address, counsel then representing the appellant focused on the unlikelihood that the complainant would not have suffered any visible injury if the appellant had struck her in the way which she described. Counsel also attacked the credibility of the complainant by reference to the fact that neither the statement of Christopher Davies nor the statement of Lisa Davies referred to any conversation with the complainant about an injury, and in particular about whether the complainant had a bleeding nose.
After hearing submissions from both the prosecutor and the appellant’s counsel, the trial Judge comprehensively reviewed the evidence. Consistent with the evidence given by the appellant, the trial Judge found that the appellant was quite angry when he was with the complainant out the back of the complainant’s house after they had returned from Cazaly’s. His anger stemmed from a combination of events that had occurred during the day, including the complainant’s refusal to have sex with him, the appellant being jealous and possessive as a result of the complainant’s text to him at Cazaly’s and the complainant’s failure (on the appellant’s version of events) to pay the appellant for erecting the shade cloth. The trial Judge placed significant weight on the fact that the appellant was so angry that he engaged in physical violence directed towards the complainant’s property. A further matter of significance was the fact that the complainant made immediate complaint to Christopher and Lisa Davies that the appellant had struck her. The trial Judge considered the appellant’s version of events to be implausible and unacceptable. The trial Judge accepted the evidence given by the complainant.
With regard to the appellant’s submission that a visible injury to the face of the complainant would have been expected if she had been assaulted as she alleged, the trial Judge said:
I might say that I don’t accept Mr McMaster’s submission that this court would only expect to see an injury more substantial than what she has described or what she says happened, which is a sore nose, given how she described she was palmed in the face by the defendant and the fact that her head was pushed back. I don’t accept that it’s entirely inconsistent that a man of the defendant’s size, palming someone in the face, would necessarily cause a significant injury such that I would expect to see more.
The trial Judge found the offence proved, including the circumstances of aggravation.
The principles governing an appeal on the ground that a verdict is unsafe or unsatisfactory are well-known. In a frequently cited passage, the majority of the High Court (Mason CJ, Deane, Dawson and Toohey JJ) in M v The Queen (1994) 181 CLR 487, said, at 493:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(Footnotes omitted)
Later, at 494, the majority continued:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
(Footnotes omitted)
In written submissions in support of the present appeal, the appellant submitted that the trial Judge failed to consider or give sufficient weight to the following matters:
(a)     the lack of visible physical injury to the complainant;
(b)     the appellant’s appropriate concessions made during his evidence;
(c)     the complainant had not described pain or injury in her police statement;
(d)     the first time the complainant raised pain or injury was when the trial Judge intervened at the close of the prosecution case;
(e)     neither Christopher nor Lisa Davies referred in their respective statutory declarations to any conversation with the complainant about her bleeding; and
(f)   Constable Cousins’s failure to observe any noticeable injuries.
As is demonstrated by the passage from the trial Judge’s reasons set out at [24] above, the trial Judge did consider the submission made on behalf of the appellant that visible injury to the complainant would have been expected if she had been assaulted as she alleged. The trial Judge was entitled to reject that submission. The submission was not supported by medical evidence and there is no reason for concluding that a blow of the nature described by the complainant would inevitably lead to a visible physical injury. The appellant’s complaint that the trial Judge gave insufficient weight to Constable Cousins’s evidence that he observed no injury to the complainant can only have substance if the finding that the blow struck to the complainant, as described by her, would not necessarily have led to a visible injury, was a finding not open to the trial Judge. It was open to her Honour to make that finding.

A fair reading of the trial Judge’s reasons reveal that her Honour did take into account that the appellant had made a number of concessions in his evidence. The trial Judge clearly indicated that she accepted much of the evidence of the appellant, but she rejected his evidence that he had not struck the complainant. While the only witness for the prosecution who could testify to that blow being struck was the complainant, the prosecution case could not be described as weak. Within moments of the point in time where the complainant said she was assaulted, she complained to Christopher and Lisa Davies that the appellant has assaulted her and asked for the police to be called. When police arrived, she repeated her complaint. In addition, the admissions made by the appellant as to his emotional state when he and the complainant were at the rear of the complainant’s residence, together with his admitted conduct in directing violence towards the property of the complainant, were cogent pieces of circumstantial evidence generally supportive of the evidence given by the complainant.
The trial Judge did refer in her reasons to the fact that the complainant had made no mention of soreness to her nose in her police statement. Her Honour noted that the complainant had agreed that she had made no reference to soreness in her police statement, but explained that failure by the fact that there was no visible injury. The trial Judge was entitled to conclude that it was not improbable that Christopher Davies or Lisa Davies would not have included in their statements reference to a complaint by the complainant of a sore nose, in circumstances where there was no visible injury to the complainant’s nose. It should also be recalled that Mr Davies gave his statement over two months after the relevant events, and Ms Davies gave hers nearly 12 months after the events. The same observations may be made regarding the appellant’s complaint that the trial Judge failed to give sufficient weight to the fact that Mr and Ms Davies made no reference in their statutory declarations to any conversation with the complainant about the possibility that her nose was bleeding.
In the proceedings in the Local Court, and in the present appeal, the appellant placed great weight upon the proposition that the trial Judge impermissibly intervened in the prosecutor’s examination of the complainant, leading to the complainant giving evidence of soreness to her nose after the assault which she had not previously given in her evidence. I will deal with this at greater length in considering ground of appeal (b). It is sufficient to note, for present purposes, that the trial Judge’s “intervention” may have provoked the prosecutor to engage in a line of questioning which the prosecutor had previously overlooked, but nothing said by the trial Judge could have suggested to the complainant that she give the evidence which she gave. This complaint by the appellant simply placed an unnecessary gloss on his submission that the trial Judge had given insufficient weight to the fact that the complainant had made no reference to soreness to her nose in her police statement.
The evidence led by the prosecution at trial did not contain discrepancies, display inadequacies or in any other way lead me to conclude that there is a significant possibility that the accused is innocent. This ground of appeal fails.
Ground of appeal (b): intervention by the trial Judge
The appellant complained that the trial Judge intervened towards the end of the complainant’s evidence-in-chief to suggest to the prosecutor that the prosecutor further question the complainant about evidence that the trial Judge believed the complainant gave about her bleeding after the incident which gave rise to the charge. The complainant had not, in fact, given evidence that she was bleeding after the incident, but the mistake by the trial Judge was understandable. In her evidence in chief before the intervention of the trial judge, the complainant gave the evidence which is extracted at [9] above. In that evidence, she uses the word “bleeding”. In the context in which the word is used, it is not clear whether the complainant was giving evidence that her nose was bleeding, or whether she was asked by Mr or Ms Davies whether her nose was bleeding. The prosecutor did not immediately ask any questions of the complainant about that part of her evidence.
Towards the end of the complainant’s evidence in chief, the following interchange occurred:
Her Honour: I just notice Ms Blundell that there is an allegation of harm. And she’s talked about being struck and bleeding.
Mr McMaster: Your Honour?
Her Honour: Well, I’m going to ask questions if you don’t.
Mr McMaster: It’s a part of the Crown case with respect, that if it’s not addressed, then it’s going to be…
Her Honour: I am asking about it - Ms - she said she’s bleeding. Do you want to ask some questions about that please, Ms Blundell?
Ms Blundell: [to the complainant] did you tell the court you were bleeding?--- No.
Mr McMaster: No, she didn’t.
Ms Blundell: I didn’t think.
Her Honour: I thought she did when she said she was out?
Mr McMaster: No.
Ms Blundell: No.
The complainant: No, Ms Davies next door asked if I was bleeding, and checked me over. (Inaudible), and I had no idea because it just all happened all so quick.
Ms Blundell: Yes, sorry. …did you have any injuries as a result of the assault?--- Just a sore nose, and my work colleague,…noticed that I had sort of like light bruising around my eyes.
The evidence of the complainant, as set out at [9] above, vindicates the trial Judge’s assertion that the complainant had mentioned bleeding in her evidence. The trial judge was quite entitled to bring this matter to the attention of the prosecutor and suggest that the evidence of the complainant on that issue be clarified. As it turned out, the complainant clarified her earlier evidence by stating that she had not been bleeding but, rather, that Ms Davies had asked whether her nose was bleeding. The complainant was then questioned about any injuries sustained in the assault, and her evidence was that she sustained a sore nose. The complainant’s evidence that she sustained a sore nose is hardly surprising given that she had already testified to being struck to the nose with some force by the appellant. The fact that the prosecutor may have been provoked into asking questions about this issue by the question raised by the trial Judge does not lead to any unfairness in the way in which the appellant’s trial proceeded. The appellant’s counsel was able to cross-examine the complainant on that issue and make submissions to the trial Judge.
This was not a case in which the trial Judge intervened in the course of examination of a witness to such an extent as to constitute a departure from the due and orderly processes of a fair trial so as to amount to a miscarriage of justice: R v Mawson [1967] VR 205 at 207. It is also not a case where the trial Judge sought to prevent the prosecution case failing by “donning the mantle of prosecution…counsel”: Whitehorn v The Queen (1983) 152 CLR 657 at 682. The trial Judge, in her role as tribunal of fact, was entitled to ask the prosecutor whether she intended to clarify the cryptic reference made to “bleeding” by the complainant in her evidence.
The complaint made by the appellant is that, by the intervention of the trial Judge, he lost the opportunity to make a “no case” submission at the end of the prosecution case. That complaint is misguided. The charge against the appellant was certainly one in which the prosecution alleged, as a circumstance of aggravation, that the appellant’s actions had caused harm to the complainant. The definition of “harm” found in s 1A of the Criminal Code Act 1983 (NT) includes “any physical contact with a person that a person might reasonably object to in the circumstances”. The evidence given by the complainant prior to the intervention of the trial Judge was clearly sufficient to satisfy this definition of harm. Even without the evidence given by the complainant about soreness to her nose, which added little to the overall picture of the offence, the remaining evidence would have justified a finding that there was a prima facie case of the offence with the alleged circumstance of aggravation.
This ground of appeal also fails.
Conclusion
The appeal must be dismissed. I will hear counsel as to whether it is necessary to make ancillary orders.

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