Connelly v Hayes
[2024] ACTSC 26
•9 February 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Connelly v Hayes |
Citation: | [2024] ACTSC 26 |
Hearing Date: | 9 February 2024 |
Decision Date: | 9 February 2024 |
Before: | Mossop J |
Decision: | 1. The appeal is dismissed and the convictions on charges CAN819/2023, CAN820/2023 and CAN821/2023 are confirmed. |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – appeal against finding of guilt – breach of Family Violence Order – aggravated common assault – causing damage to property not exceeding $5000 – punch to the face causing injury and breaking dentures – ground of appeal either assertion of unreasonable verdict or factual error on part of the magistrate in finding facts proved beyond reasonable doubt – whether magistrate correctly followed Murray and Liberato directions – whether open to magistrate to accept complainant’s evidence where there is no physical evidence to corroborate it – whether open to magistrate to reject appellant’s bare denial – turns on own facts – appeal dismissed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 24, 26, 48C, 48D |
Cases Cited: | Alexander v Bakes [2023] ACTCA 49 |
Texts Cited: | Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (last updated Update 75, December 2023) |
Parties: | Todd Connelly ( Appellant) Jordan Hayes ( Respondent) |
Representation: | Counsel E Chen ( Appellant) S Jerome ( Respondent) |
| Solicitors Legal Aid ( Appellant) Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 44 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Stewart Date of Decision: 27 July 2023 Case Title: The Police v Connelly Court File Numbers: CAN 819 of 2023 CAN 820 of 2023 CAN 821 of 2023 |
MOSSOP J:
Introduction
This is an appeal against a decision of a magistrate made on 27 July 2023. The appellant was found guilty of the following offences:
(a)Engaging in conduct that contravened a Family Violence Order (FVO).
(b)Aggravated common assault.
(c)Causing damage to property not exceeding $5000.
The prosecution case
The prosecution case was that the appellant was the subject of an FVO which prevented him from coming within 70 m of the complainant. The appellant and the complainant had been in a relationship for approximately eight years. They lived separately. At the complainant’s request, the appellant had collected her from another house at about five o’clock in the morning. After she had been at the appellant’s house for some hours, he is alleged to have punched her in the mouth, causing her to fall over and breaking her dentures. She was then alleged to have left the house, returned to her own residence, and made a complaint to a man who was there. Her dentures were subsequently returned to her, in pieces. She threw them in the bin. The contravention of the FVO was that the appellant came within 70 m of the complainant. It was alleged that there was an assault occasioning actual bodily harm arising from the punch to her mouth, which was alleged to have caused an internal injury to the inside of her lip above her teeth at the front of her mouth. The property damage related to the broken dentures.
The evidence at the hearing
The prosecution called four witnesses: the complainant, the man at her house to whom she made a complaint (Mr Samson) and two police officers.
The complainant gave evidence by way of a Family Violence Evidence in Chief (FVEIC) interview, supplemented by additional evidence‑in‑chief and cross examination.
She gave evidence that she had been in a relationship for seven or eight years with the appellant. He lived one door away from her. She said she was “[a]bsolutely not” still in a relationship with him. She recalled making a complaint to a police officer and giving a FVEIC interview at her house the day after making that complaint. She said she did not give an FVEIC interview on the first occasion because “it became too much the first day”, and she was “overwhelmed and confused and not able to really answer things properly”.
In the FVEIC interview, she indicated that she was 50 years old and that she suffered from bipolar disorder and schizophrenia. She took medication for those conditions, as well as antidepressants.
She indicated that she did not have any dentures in her mouth when giving the FVEIC interview, and that her speech may be affected. (Her speech in the audio of the interview is consistent with her not having dentures at the time.)
She said that she had been picked up by the appellant at 5:00am from a girlfriend’s house. She and the appellant went back to his house, and they got into a disagreement about another female being at his house before he had picked her up. She said she had been in his hallway when he approached her and punched her “right in the middle” of her mouth. She said she fell to the ground and her dentures fell out, as they were broken in “a couple of places”. She said, “I basically just pretty much ran out the door”. She said the appellant said he was sorry, and that he would pay for a new pair of dentures. She said she did not pick up her dentures or bring them with her or anything, she ran straight home.
She was then asked to elaborate on various aspects of her description of events. She said that the appellant had been caught out in a lie about having another woman at his house. The complainant said she was quite upset by this. She said that the time from 5:00am until 8:00am went “really quick”, that the appellant was doing his own thing during this time, and that he was not in an aggressive mood at all. She said he was making light about it. She said, “and then all of a sudden out of nowhere he has just punched me in the face”. She said he “wasn’t cranky” when he hit her, or after he hit her.
She said that the incident occurred between 8:00am and 8:30am. She was asked how many days previously it had occurred and said, “Last Sunday?” And then said, “Saturday or Sunday”.
She was asked about being hit and she said:
He said I was being too loud. Like making too much noise because we were arguing and he didn’t want the neighbours to hear and I, I just must have went to the toilet and our houses are identical so I went to his toilet down the hallway. As I came out, I guess, I think I was calling him a liar and stuff like that and he punched me when I was in the hallway, yeah.
She was asked about the punch and said:
I just remembered it was within arms reach he didn’t come aggressively towards me or anything we were both already standing in the position when he just punched me out of nowhere. It was just a complete shock.
…
It was fist, hard punch like he was trying to hurt me, I guess. It certainly was yeah, it wasn’t a tap or anything, it was a good punch to the face.
She said that she was not being aggressive at the time. She described her fall to the ground as “[g]etting punched and turning around and falling down on the hallway floor and then, yeah, that was all that happened.”
She was asked, “How did you land on the floor?” And said, “I can’t remember”.
She said she realised her dentures had been broken because she saw them broken on the floor. She was asked how they were broken and said, “Through the whole thing because the dentures they go up into the roof of your mouth cut down like that and through the middle.” At this point, she was clearly demonstrating something to the police officers conducting the FVEIC interview, although the audio does not make clear what.
She was asked how much the dentures were worth and said, “A couple of - thousands. A couple of hundreds.” She explained that she got them through “the government dentist because my name came up on the waiting list”.
She then said that when she got home, her friend, Mr Samson, was sitting in the house. She walked in and told him what had happened. She said she told him that the appellant had punched her in the face and broken her dentures. She said she just sat there upset and crying and that she had been crying before she walked in the front door. A couple of minutes after she got home, someone she identified as “Jackson’s sister” knocked on the door and came in with the broken dentures wrapped in tissue paper. The complainant threw them out without taking any pictures of them.
The complainant said that she had a split lip which was “a little bit sore obviously for a little bit”, but she did not take anything for it. She told police that the injury had since healed.
She then gave some evidence that was admitted as context evidence as to past violence in the relationship with the appellant and having been punched by the appellant before.
She was asked to describe how she ran out of the appellant’s house. She said “he kind of tried to stop me going side-to-side … he was just trying to keep me there saying, I’m sorry, I’m sorry, I’m sorry. Like, I will pay for you to get your new teeth.” She got past him and ran home.
She appeared to describe him having tossed a “cat carrier” at her as she left the property.
She was asked some questions about Mr Samson and about Jackson’s sister. Jackson was the appellant’s nephew. She described Jackson’s sister as someone who had been “down for Christmas and the Holidays”. (There was some discussion during the course of the proceedings as to whether the words used were “Christmas for the holidays” but the issue was not resolved.) She said that Jackson’s sister had been nice to her but was not in her house for more than a minute.
The police interviewing the complainant then returned to the question of when the incident had happened. At this point, the complainant said that the incident occurred on either Tuesday or Wednesday morning, because she knew that it was payday of the woman who she and the appellant were arguing about, and that the woman gets paid on a Tuesday. The complainant ultimately settled on the incident occurring on a Tuesday morning.
Police again asked her about the items that were being thrown by the appellant as she was leaving. She explained that she still had belongings at his house. She said that when the appellant was throwing things, he did not say anything.
After the playing of the FVEIC interview, the complainant was asked some additional questions in examination in chief. She clarified that after being picked up at 5:00am, it was only a four-minute drive back to the appellant’s house. She said she was there until 8:00am and that it was more her being upset and crying. She said that while there was an argument, it had not escalated to yelling or anything vicious. “It was just, yes, just being upset more so than arguing.”
She was then shown a plan of the house and marked the position where she was, just outside the bathroom, when she was struck and the position where the appellant was when he struck her. She was asked which part of her body she fell on and said “I’m pretty sure I just fell face first. Facing, and I landed facing down towards the laundry, not towards the lounge room.” She was asked which direction she had been facing before he struck her and said that she was facing “towards the lounge room and he was facing down towards the laundry”.
She described the punch again, saying, “I think I came out of the toilet and as – as the statement said, I think I was just saying he’s lying and it was just out of the blue. It was within arm’s reach.” She was asked about how she fell and said, “It kind of spun me around, just straight down.”
She marked on the plan where she exited the house.
She was asked again about how the appellant had tried to stop her leaving the house and said:
It was kind of, like a shuffle, side-to-side, and he was just saying, ‘I’m sorry’, and, ‘I was just distressed’, and just – I didn’t run out of the house but I – I went out of the house crying and continued across the next door neighbour’s lawn crying and into my own house.
She was asked how far his place was from hers and said, “About 800 metres I would say”, but when asked how long it took to get back to her place she said, “It takes about 5 seconds”. She said she “[i]nstantly” told Mr Samson what had happened.
She was then asked about the injury and described it as an injury to “that little piece of skin in the middle of your top lip”, which was split. She was asked how long it lasted and said, “It wasn’t long … It wasn’t a very noticeable injury to my surprise”. She said the cut did not bleed. She said police looked at it when they took her statement.
She was then asked about her dentures. She said that she heard someone in court say that it was broken in two places, but she believed it was three or four places, “definitely broken more than in one place”.
When asked about the replacement of the dentures, she said, “I’ve got my new dentures about three weeks ago, so I went five months with no teeth, and they aren’t cheap. It was about $10,000.”
She was asked about the FVO that was in place. Her answer referred to bail conditions, but she said she was not sure about a restraining order as well.
She was asked about why she did not complain to police straight away and said that she was too upset and she took her medication which she knew would relax her and put her straight to sleep. She described that when she came back to her place after the incident she had been “[d]istressed, crying, upset”.
The cross examination that took place is recorded over seven pages of transcript. She was asked some general questions about her earlier relationship with the appellant. She confirmed that she lived “[o]ne door apart” from the appellant. She agreed that in January 2023, she was still in a relationship with the appellant. She was asked a confusing question which suggested to her that she “hadn’t cause to believe that [the appellant] had been unfaithful towards you, didn’t you?” And answered, “Yes, I knew that the whole, like, years though. Yes.”
She agreed with the proposition that she was suspicious by nature, saying, “life wasn’t very kind to me”. She agreed that she suffered from schizophrenia and bipolar disorder, as well as anxiety. She also had a diagnosis of a condition associated with the long-term taking of antipsychotic drugs. She agreed that she found it “harder to deal with difficult situations than other people”. She agreed that she was deeply upset that the appellant had been unfaithful towards her. She agreed that she struggled every day to regulate her emotions. She agreed that she had damaged property at the appellant’s house.
She agreed that she had to take her medication, or she would become suicidal.
It was suggested to her that she had told police that the appellant had collected her from her own house, but that she later changed her story to say that she was picked up from a girlfriend’s house. She said, “No, it was always he picked me up from a girlfriend’s house”.
She agreed that she had told police in the recorded statement that she ran straight out of the appellant’s house. It was suggested to her that she had said that after he hit her he did not want her to leave. She said, “I don’t know if he didn’t want me to leave. He was just saying that he was sorry, he was sorry and he would pay for new teeth.” She agreed that she had told police that the appellant wanted her to keep her voice down so the neighbours did not hear. She also agreed that she had told police that the appellant was throwing belongings after her.
She agreed that in January when she spoke to police, she could not tell them how she fell. It was put to her that she had told the court that she had fallen on her face. It was suggested to her that she had made up that memory. She denied that.
It was suggested to her that when police told her that they could not see any injuries, she changed her evidence and said that the cut did not bleed. She said that she could not remember the police saying that they did not see any injuries. She agreed that she did not take any photographs of her cut. She was asked questions about whether she reported her injuries to any doctors as follows:
And [complainant], you did not go to any doctors to talk about - - -?---I went to a dentist. Yes, I did go to a dentist.
[Complainant], you did not see a doctor - - -?---Yes.
- - - about any injuries, did you?---Yes, I have seen my GP regarding all of this matter several times.
It was suggested that she was not telling the truth, and she said that she was.
The following version of events was put to her: that she had found out that the appellant had been unfaithful towards her, she set out to go to his house, let herself into his house, threw her dentures on the floor, and yelled out that she would have the appellant charged. She said none of that was true.
She was asked about her disposal of the broken dentures and agreed that she had not taken any pictures of them before throwing them out.
She was asked about when the incident had occurred and the fact that she had said it occurred on a Tuesday or Wednesday. She said, “I believe it to be a Tuesday. Tuesday morning.” It was suggested to her that it could have been a Tuesday at the end of last year, that is, 2022. She denied that.
It was suggested to her that because she was struggling after she discovered that the appellant had been unfaithful, she had “invented this story about him punching [her] in the mouth”. She said, “Absolutely not. No. Everything I’m saying is the truth. Nothing but the truth.”
In re-examination, she was asked about having seen a general practitioner (GP). She said she could not recall exactly when that occurred. She was then excused.
The next witness was the complainant’s friend, Mr Gary Samson, who was staying at the complainant’s house at the time. Mr Samson was a reluctant witness, initially refusing to take an oath or affirmation. However, he ultimately took an affirmation. He described himself as a former flatmate and a friend of the complainant. He said that he was visiting the complainant’s place in January. He had been staying there for two nights. He was asleep in the lounge room and woke up to a commotion at the door. He described it as crying. He asked her what was wrong, and she said, “‘Todd and I have been in an argument’, blah blah blah”. He said she did not describe the specifics of the argument, but he understood she was upset because she was crying. He was asked whether it was possible that she could have gone into specifics and he said that he would “definitely remember that” but then went on to refer to a statement that had been prepared and said, “If you jog my memory, I very well might go, ‘Yeah, that’s right and that’s right’.”
As to when this occurred, he said, “I would have said in the afternoon, but obviously it must have been at night, yes”. He said that sometime after that conversation, he realised that the complainant did not have her dentures, and recalled that she had said, “I don’t have my teeth”.
He did not see any injuries on her. She did not mention any injuries.
He “definitely became aware” of the complainant’s missing dentures when “some girl” came to the door with the complainant’s dentures wrapped up in tissue paper. He did not see the dentures when they were brought over. All he saw was the tissue wrapped around something. He gave some evidence indicating that he had noticed her dentures missing before that from the way her mouth was “drawn in”.
After having consoled her, Mr Samson went home. He said that if she had still been agitated, as she was initially, he would not have gone home and left her.
The cross examination of Mr Samson extended over two pages of transcript.
He was asked about having worked out that she did not have her dentures and said that he had lived with her, and she had taken her dentures out, so he was aware of her not having her dentures in. He was asked about his recollection that she returned either in the afternoon or the night and he said, “Yes, well, night, I presume that … I couldn’t say. I would have said the afternoon myself, but I’m not going to say it wasn’t night, yes.”
He was asked about an occasion in March when he had come to court as a friend for the complainant. It was suggested to him that he had said that the complainant had come home approximately four months prior to that. He said that he could not recall saying that to the cross examiner. He said, “I’ve got my own stuff going on in life where, you know, I’m terrible with times and stuff now and just, yes.”
He was asked about an incident when he was living with the complainant and saw her gluing her dentures together. He recalled that and said that she had dropped them on the kitchen floor, and they had broken in half, so she glued them back together.
In re-examination, he said that the gluing of the dentures occurred at a time when he was living with her, which was before the incident that he described when there had been a commotion at the door. He could not recall how long before.
He was asked why he thought it was the afternoon. He said it was because he had been sleeping for some time, and that he had got up to go to the toilet a few times and the sun was out. He said, “I thought it was afternoon but I’m not going to argue it was night. I don’t really – I can’t really remember.”
The next witness was Brianna Carson, a First Constable working at the City Police Station. She gave evidence that on 18 January 2023, while attending the Magistrates Court for a preliminary conference with the complainant, the complainant made some disclosures to her. The complainant had said that at 8:00am or 8:30am approximately two weeks prior, she had had an argument with her partner or ex-partner and that she had been punched in the face, which knocked her backwards and broke her dentures. She told First Constable Carson that she went back to her house crying and met her friend, Mr Samson, and, at some later time, the appellant’s niece brought her broken dentures back to her. At the time of making this disclosure, she was quite upset. First Constable Carson went back to the City Police Station with her but when there, the complainant became very distressed and shut down.
First Constable Carson had started going through some safety planning documentation with the complainant when the complainant had “a bit of a trauma response” where she “kind of just shut down and couldn’t really communicate very well any more”. First Constable Carson described the complainant as being distracted and disengaged from the conversation. At the time, the complainant had been talking about the alleged offences and also other historical matters.
First Constable Carson arranged for a team to go out and visit the complainant at her house the next day.
In cross examination, First Constable Carson was asked about the historical matters that were being discussed, and she said that it was historical matters with the appellant and “historical stuff outside of that relationship”.
She was asked about a statement that she had made on 17 February 2023, and she agreed that her recollection of events was better back then. She was referred to her statement in which she had recorded that the appellant had attended the complainant’s address to pick her up and First Constable Carson said, “Yes, that’s what she informed me”.
She was also referred to the statement in which she recorded that the complainant had said that the appellant punched her in the mouth so hard that she broke her dentures and it knocked her backwards. First Constable Carson agreed that that is what the complainant had informed her.
She agreed that she did not observe any injuries on the complainant, although she did observe that the complainant did not have any dentures.
The next witness was Constable Jordan Hayes, who was attached to the Tuggeranong Police Station. On 19 January 2023, he was rostered to work with a Constable Jarvis. They were requested to attend the complainant’s home and speak to her in relation to the allegation of assault.
He attended the premises at 7:03pm that day. The complainant told him that, about a week prior, she had been at the appellant’s residence. They got into an argument where she had accused him of lying. She had then gone to the toilet. After leaving the toilet, the appellant confronted her in the hallway. He had punched her in the face, causing her dentures to fall out and be broken. She immediately fled the premises.
He observed that when speaking to her there were no dentures in her mouth. She was only mildly distressed when speaking about the matter. The appellant’s address was about 150 m away, with an almost direct line of sight between the two dwellings.
He examined her gums, which she described as having sustained an injury, but did not observe any injury or markings that could be an injury.
He subsequently conducted checks of police indices which showed that the appellant was subject to a special interim FVO. He identified an affidavit of service of that order and a timing notice from the Magistrates Court, both of which were tendered.
Constable Hayes and Constable Jarvis conducted a FVEIC interview with the complainant from 7:34pm until 7:52pm.
After the FVEIC interview, the complainant told him that the appellant would be at the Calwell Pub. Constable Hayes and Constable Jarvis went there and arrived at 8:06pm. They stopped a white ute that the appellant was driving. They did a breath screening test. They then arrested him for family violence offences. Constable Hayes thought that the allegations had been mentioned prior to the arrest but could not recall specifically if it was before or after the appellant was placed under arrest. He did not believe it was mentioned prior to the breath testing.
A portion of Constable Jarvis’ body worn camera footage was played back to the court (30 seconds to three minutes and 20 seconds). Constable Hayes gave evidence that identified the very first interaction between the police and the appellant in relation to this matter, and that there had been no discussion with the appellant prior to that. The body worn camera disclosed the appellant saying, “whoa whoa whoa, I know what this is about because [someone else] told me all about it and she’s full of shit mate”. Another portion was then played back (four minutes to five minutes and 13 seconds). The two portions that were played were tendered and became an exhibit. In the second clip, the appellant demonstrates a degree of hostility towards the complainant but denies the allegation of family violence.
After the appellant was arrested, he was taken to the ACT Watch House. He was served with the FVEIC interview.
Constable Hayes’ evidence was that the additional enquiries indicated that the special interim FVO was still in place.
He also obtained a floor plan of the appellant’s house. This was obtained by another officer who obtained it from Housing ACT. A further document was tendered which indicated that the floor plan provided was a mirror image of the layout of the premises, and that is consistent with what he had observed at the premises.
In cross-examination, he agreed that his memory of events was better when he prepared a statement on 16 February 2023 than at the time of giving evidence. He agreed that he took notes in his notebook. He agreed that neither the statement nor his notebook recorded any observation of injuries on the complainant. He agreed that the complainant did not give him a date for the assault. He said he was told approximately a week, but no specific date.
He agreed that she had said it was either on a Tuesday or Wednesday, but “without any holidays or birthdays either side”.
He agreed that the complainant had told him that the appellant’s nephew, Jackson, lived next door. He agreed that Constable Jarvis had left at some stage to speak to the appellant’s nephew.
He agreed that Constable Jarvis had cautioned the appellant when the appellant was arrested. He agreed that the appellant had continued to deny any assault had occurred. He agreed that someone called either Jackson or Justin had told him all about what this was about. He agreed that he had not attempted to determine who Jackson or Justin was or take any statement from that person. He agreed that when the appellant was asked for contact information relating to Mr Samson, the appellant had helped with those enquiries by providing a contact number. He agreed that the appellant was quite clear and consistent in his denial that any assault had occurred.
There was no re-examination.
There was no defence case.
The parties commenced their submissions immediately, counsel for the prosecution going first, followed by counsel for the appellant.
In summary, counsel for the prosecution submitted that the principal issue was whether the magistrate accepted the complainant’s evidence. She submitted that the complainant was a witness of truth and that if her evidence was a fabrication, she would not have given evidence that the appellant was not particularly aggressive or that he apologised. Similarly, she submitted that the complainant had frankly admitted deficiencies in her allegations, in particular, having not taken any photos of the damaged dentures, nor showing her split lip to anyone except for maybe Mr Samson. She also referred to the circumstances in which the disclosures were made: to police while waiting at court. She referred to the fact that the complainant had conducted the FVEIC interview without dentures.
She said that the fact that the complainant had made some repairs to her dentures at some point prior to the alleged offences was not significant. She said that Mr Samson’s evidence was corroborative of the complainant’s account. She submitted that the appellant’s denials were unconvincing and associated with anger and hatred towards the complainant.
She accepted that there were some deficiencies in the evidence, but not deficiencies that would give rise to a reasonable doubt. She submitted that a breach of the FVO would be proved by picking the complainant up and taking her to his house, punching her in the face or throwing objects at her. She identified the cut on the lip as being the actual bodily harm. She said that the appellant would be aware that the complainant wore dentures and was at least reckless as to damage to property.
She pointed out that both the assault and the damage to the dentures involved family violence. In those circumstances, if the court was not satisfied that the cut amounted to actual bodily harm pursuant to s 24 of the Crimes Act 1900 (ACT), then the court was still entitled, as an alternative, to convict the appellant under s 48D of the statutory alternative of common assault pursuant to s 26, or common assault with family violence pursuant to s 48C.
Counsel for the appellant submitted that the complainant’s version lacked any form of specific information, even lacking the day that the conduct was alleged to have occurred. He submitted that the case was an exceptionally weak prosecution case which must be balanced with the clear and consistent denials made by the appellant. He submitted that the magistrate should provide himself a Liberato and Murray direction.
He submitted that the denials by the appellant were “consistent and enthusiastic” and “clear and consistent” and that the appellant was open and cooperative with police. He submitted that no evidence would require or compel the magistrate to reject the appellant’s denials. He submitted that, consistent with the Liberato direction, the prosecution case must fail. He submitted that the court must carefully scrutinise the complainant’s evidence in accordance with the Murray direction and that the complainant’s evidence was “unreliable and unimpressive”.
He submitted that this was indicated by the expansive date range, which was a basic and material point, and that there was no explanation as to why there was a delay in complaint or an inability to narrow down the date range. He submitted that the court could not be satisfied that the incident occurred within the particularised date range and, therefore, the charges must fail.
He pointed to the “manifest absence of any corroborating physical evidence … no medical evidence … no photos of injuries … no photos of dentures”. He submitted that Mr Samson only observed her returning in a state of distress without dentures. It was impossible to say that it was the same incident. That she was upset was entirely consistent with someone who had learnt that her partner of eight years had been unfaithful.
He referred to her major psychiatric illness. He suggested that she would have a motive to lie and concoct the version given to police because the appellant had been unfaithful.
He submitted that her evidence was entirely inconsistent:
(a)suggesting that the appellant had focused on keeping quiet but then chasing her out of the house and throwing property at her;
(b)telling First Constable Carson that the appellant had collected her from her own house but then later alleging that she was picked up from another house; and
(c)giving inconsistent versions of the assault, telling First Constable Carson she fell on her back, telling Constable Hayes she did not remember how she fell and then in court saying she fell on her front.
He submitted that there remains a hypothesis consistent with the appellant’s innocence which was just as, if not more, credible than the version proffered by the complainant, namely, that she attended the appellant’s house uninvited, threw her dentures on the ground in a fit of anger and then concocted a version with a view to having the appellant charged.
He submitted that there was no evidence to corroborate her suggestion that she was at the appellant’s house for as long as she said. He submitted that she had gone to “extraordinary lengths” to come up with reasons why her apparent injuries were not documented. He submitted that there was nothing to suggest that the dentures were not broken prior to the date of the charges.
The magistrate’s decision
The decision of the magistrate was given immediately following the conclusion of the oral submissions. The reasons were as follows:
HIS HONOUR: In this matter, I have directed myself with the traditional criminal trial directions of right to silence which has been observed in this matter, although there is a limited amount of discussion in the record of conversation with police upon arrest. The burden of proof and the standard of proof on a criminal standard, importantly I cannot reach the fact that there is no defence case been called other than the defendant’s brief record of interview to fill any gaps in the prosecution case, and I cannot use it against the defendant in any negative or prejudicial way.
I direct myself in terms of the order I made pursuant to section 136 [of the Evidence Act 2011 (ACT)] of the very limited use I can make of the allegation that there has been punching. In the past, there was no further particulars adduced of that. It is classic uncharged evidence without much context of information at all colouring that allegation, but it is admitted only as context and certainly not tendency.
I also direct myself in terms of Liberato and Murray. This is the evidence of the complainant with no eye-witness, really just restating the burden and standard of proof. I must be carefully [sic] in those circumstances, and the test that I must go through in terms of Liberato to see whether the defendant, in his limited refusals, can defeat the prosecution case immediately.
The defendant was spoken to at the roadside outside premises I understood to be a shopping centre and licensed premises. He was under the limit and he was cautioned and he was immediately on the front foot about denying allegations that clearly he was aware of in relation to family violence. I was not able, from that very brief interaction with police, to make a finding what he said within that interview was truthful or possibly truthful. It was aggressive. It was accompanied by at times abusive language and language which showed disrespect to the complainant, and in the absence of any greater detail, I was not able to form the conclusion that the defendant was telling the truth, or possibly might have been telling the truth. It was a simple, flat denial.
I then must go on and consider the prosecution case. The complainant gave uncomplicated evidence. The prosecution case rises and falls on her evidence to a large degree. There are some features of the case which support the [complainant], that is, that she was distressed when she came home, and that shortly after coming home, someone else came to her home with a package contained in tissues.
Her own evidence was brief in nature. It didn’t contain any obvious embellishments. It was an allegation of one strike only. It included material that was favourable to the defendant, that is, that he apologised immediately, offered to pay for the damage that the complainant alleged he had done by punching her, and breaking her upper denture in the process, and involved her immediately going back to her home which was only some hundreds of metres away, and she made a partial complaint to her friend, Mr Samson. She did not complain about anything other than there being an argument.
There are many reasons why complainants do not make full complaints at the time or shortly after the time they have been victims of family violence, and the court needs to warn itself carefully about what it gives or what weight it gives to an absence of a full complaint in circumstances where a partial complaint is given, particularly to another male, about what had occurred.
What is of more importance, in my view, is the fact that it was obvious that she no longer had her dentures in when she returned. Mr Samson knew what she looked like without dentures because they had resided together as housemates previously, and as a matter of common sense it must have been obvious that she did not have that extra added structure to her upper lip and jaw.
I find it proved beyond reasonable doubt that [the complainant] was at the residence of the defendant on a night in between 2 and 16 January this year, and in that sense, the Family Violence Order that was in an interim status was breached by him, and of course it was a function of that order that he was not to be within 70 metres of her, no matter whether she had gone there or he had collected her.
Her evidence again was flattering to him. She said she had invited him to collect her from a girlfriend’s place and he had, notwithstanding the interim Family Violence Order, gone and picked her up and then there had been an ongoing argument for some hours about infidelity on his part. It was raised as a motive to lie by defence, and I agree. Common sense and life experience would tell the court that infidelity is a strong motive to lie, but that has to be balanced with how the court assessed her evidence and I thought she was telling me the truth.
There were some slight inconsistencies in recall of her version between the family violence evidence-in-chief interview and what she told one of the officers about falling on her back and then falling on her front, but I wasn’t particularly concerned about that. I thought, in short, that she was telling me the truth and there’s nothing about the defence case, or the short record of conversation with the defendant, or about the inconsistencies and lack of full complaint, lack of time limits in complaint that persuades me otherwise. I am confident that I won’t have a lingering doubt about returning verdicts of proved but for one element.
On the assault occasioning bodily harm charge, I am not satisfied that the injury was anything more than trifling. There was nothing obvious to police when they asked to investigate that injury. There was no photograph taken. There was no bleeding. In my view, it was a transient injury, even though it was there in a minor way, and in that sense the actual bodily harm element of that offence cannot be proved beyond reasonable doubt.
In my view, the facts that are proved beyond reasonable doubt are these, that the defendant did pick up the complainant from her girlfriend’s house on a day between 2 and 16 January this year. In doing so, he not only recklessly, but knowingly, breached the Family Violence Order that he was subject to. There was ultimately an argument about infidelity. She came out of the bathroom or the toilet and he struck her once to the mouth.
That was an application of force and an assault aggravated by the family violence circumstance which is also proved by the length of their intimate relationship, and as part of that assault, her dentures were broken, and that charge is also proved in the aggravated sense because of the family violence [context]. I reject the [defence] assertion that that denture was already broken. In my view, factually it can be found beyond reasonable doubt that it might have been broken into half many months earlier, but on this occasion it was broken in four places by the power of the defendant’s blow.
I accept also that he apologised immediately which goes to his credit, and also he immediately offered to pay for the replacement of the dentures, and that clearly he had some part to play in returning the broken dentures to her which I find were in a broken state in the tissues when returned to her home shortly after the assault. So those are the verdicts that I return and the reasons for them. I will just make the appropriate endorsements on the charges.
So on 820, the alternative of aggravated common assault proved beyond reasonable doubt. On 819, which is the contravention of the FVO, it’s proved beyond reasonable doubt, as is the property damage charge. All right, I imagine we’re not going to move to sentence today in those circumstances.
Ground of appeal
The ground of appeal is: That the findings of guilt are unreasonable and cannot be supported by the evidence.
Consideration
This is an appeal pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT). The Court of Appeal recently outlined the principles to be applied in such an appeal in Alexander v Bakes [2023] ACTCA 49 at [13], [18]:
13.Where an appeal is by way of rehearing, generally an appellant may succeed only by demonstrating material error in the decision below, whether legal, factual or discretionary: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (Allesch) at [23]. This is noting that a court on a rehearing is to conduct a real review of the evidence given at first instance and the judge’s reasons for judgment and, while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, reinforced by the High Court in Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56].
…
18.Accordingly, an appellant may succeed in an appeal under s 214 of the [Magistrates Court Act 1930 (ACT)] by demonstrating that the magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed. Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision.
Although the ground of appeal was formulated by reference to unreasonableness, the submissions were developed by reference to simply establishing a factual error in relation to the ultimate conclusion that the occurrence of the events had been proved beyond reasonable doubt. As pointed out by Baker J in Ji v Stone [2023] ACTSC 54 at [153]-[154] and Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 at [37], in most cases there is little difference in the practical outcome of either formulation. Both require a real review of the evidence, and both require regard to be had to the advantage of the finder of fact in seeing and hearing the witnesses give evidence. So far as the advantage of the trial judge is concerned, that was articulated by McCallum CJ in Garay v The Queen (No 3) [2023] ACTCA 2 at [31]:
31.Whatever differences exist between trial by jury and trial by judge alone, the advantage of being immersed in the atmosphere of the trial is one thing they undoubtedly have in common; an advantage not shared by the appellate court. The assessment of credibility involves more than a lawyerly analysis of the words on the page of a transcript. The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness.
In the present case, the submissions were ultimately developed by reference to the approach to be taken on a rehearing, with the appellant placing emphasis on the statements in Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] that emphasis should be placed upon “contemporary materials, objectively established facts and the apparent logic of events” and to “limit … reliance upon the appearances of witnesses”. However, those statements occurred in a context which recognised the significance of credibility findings as a limitation upon appellate review: see [28]-[29].
Insofar as the appellant departed from the ground of appeal by asserting an unreasonable verdict and relied upon an error in finding the offence proved beyond reasonable doubt, there was no objection from the respondent to that course.
The written and oral submissions of the appellant are organised by reference to the Murray direction and the Liberato direction, which he contends were applicable.
The Murray point
Counsel referred to the statement of Lee J in that case (R v Murray (1987) 11 NSWLR 12 at 19) that “where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in”. Counsel made reference to the elaboration of that principal in Robinson v The Queen [1999] HCA 42; 197 CLR 162 at [26], the Judicial Commission of New South Wales Criminal Trial Courts Bench Book, and Huxley v The Queen [2023] HCA 40; 98 ALJR 62 at [19], [51]-[67].
Counsel submitted that Mr Samson’s evidence did not corroborate the complainant’s allegations because it only indicated that she had returned without her dentures after an argument. The mere fact of distress did not indicate an assault.
The submission was that the complainant could not have been characterised as an honest and accurate witness beyond reasonable doubt. Counsel for the appellant relied upon five matters to submit that, despite any advantage enjoyed by the magistrate, he should have found that the complainant was not an honest and accurate witness beyond reasonable doubt.
First, it was contended that the complainant had a clear motive to lie because a relationship of seven or eight years had collapsed when she had discovered that the appellant was unfaithful. The magistrate appeared to accept this, saying, “Common sense and life experience would tell the court that infidelity is a strong motive to lie …”. Counsel also referred to the evidence that she struggled to regulate her emotions and that she remained deeply upset.
Notwithstanding the magistrate’s apparent acceptance of this proposition as a matter of generality, it is not a persuasive factor when one applies it to the present case. It might well be the case that infidelity gives rise to a strong motive to lie. An obvious example might be provided by the circumstances of the appellant who may well have had a motive to keep his infidelity secret from his partner. However, those were not the circumstances in which the complainant found herself. So far as her position was concerned, what was being suggested is not a lie in order to keep infidelity secret but a lie alleging an assault which did not occur, motivated, one must assume, by an intention to get revenge. That is a different and substantially less plausible motive than a lie in order to keep infidelity secret. The proposition that she invented the story because she was struggling after she discovered his infidelity was put to the complainant and denied.
Further, the proposition that she was motivated to lie does not sit well with the circumstances in which she made the complaint to police. As the prosecution submitted before the magistrate, the indirect manner in which the complainant disclosed the incident is not consistent with somebody who was motivated by infidelity to seek revenge through a false complaint to police. The possibility of the evidence involving a lie prompted by infidelity needed to be assessed in the context of the details of her complaint, which included much that was unlikely to have been included had it been a concoction motivated by revenge for infidelity.
The second point made in the appellant’s submissions is that there was no evidence of any injury “in circumstances where visible injury would be expected”. The submission was that the alleged punch was thrown “with such significant force at the centre of the complainant’s mouth that it caused her to spin around and land on the floor” and caused her dentures to spill out and become split. That was to be contrasted with the absence of any injury. It was submitted that it was curious that, although the complainant claimed her upper lip was split, it did not bleed and neither Mr Samson nor Constable Hayes observed any injuries. It was suggested that it was implausible that she would not have exhibited enduring pain in the presence of Mr Samson. It was submitted that there was an inconsistency between her evidence that the cut to her lip did not last long and was not very noticeable, and her evidence that she had seen a GP regarding “all of this matter several times”.
The complainant herself was surprised that she did not suffer further injury, saying, “It wasn’t a very noticeable injury to my surprise”. There is no necessary inconsistency between the striking that the complainant described and the minimal injury described.
The appellant’s submissions overstate the complainant’s description of the blow that was struck. The complainant simply said “it wasn’t a tap or anything, it was a good punch to the face” and subsequently described that although she had been facing him prior to being struck, she landed facing away from him down towards the laundry. The reference to spinning came from the following evidence‑in‑chief:
You have fallen on the ground?---Yes.
And you have come to face the laundry?---Yes.
Can you just describe the way in which you fell?---It kind of spun me around, just straight down.
These descriptions do not necessarily indicate a blow of such force that the blow itself spun her body around by reason of the force of the blow. Rather, the turning around may well have simply been her response following the unexpected blow to the head. The ultimate position in which she landed on the floor is not strong evidence as to the force with which she was struck.
The explanation of the limited extent of injury is, contrary to the appellant’s submissions, not inconsistent with “common sense and life experience” in a manner that would cast doubt on the reliability of the complainant’s evidence. A punch to the face may have a variety of consequences, ranging from the trivial to the catastrophic. While a noticeable injury would have corroborated her account, a minor injury did not have the effect of contradicting or undermining her account.
So far as the appellant relies upon the statement in the complainant’s evidence that she had seen her GP regarding “all of this matter several times”, the submission overstates the effect of the evidence. The submission was that the context in which this evidence was given clearly indicated that it related to the cut to her lip. However, contrary to that submission, the context indicated that it was not limited to the injury to her lip, but equally consistent with having seen her GP to deal with the psychological fallout of “this matter”, as distinct from the physical injuries suffered. There was no attempt in cross-examination of the complainant to clarify the answer in a way that might support the submission that her evidence about having seen the GP was implausible.
The third submission related to the evidence of Mr Samson. The submission was that his evidence only disclosed an argument and that there was no mention of any form of assault. That was said to be inconsistent with the complainant’s evidence that she had told him that she had been punched in the face and her dentures had been broken.
A reading of the transcript indicates that Mr Samson was not a straightforward witness. Plainly enough, the magistrate had the opportunity to see and hear him giving evidence and that advantage would allow a much better assessment of the likely reliability of his evidence. I accept that Mr Samson did not give evidence of the complainant complaining of being struck or making any immediate complaint of having her dentures broken. However, his evidence did not go so far as to preclude her from having said those things. Whilst it did not provide direct support for her having been assaulted, it was not inconsistent with the evidence that the complainant gave.
The fourth submission was that the complainant’s evidence was “riddled with internal inconsistencies”. Seven such internal inconsistencies were identified. I will address them individually. In summary, to the extent that there were uncertainties or inconsistencies in the complainant’s evidence, they were not in relation to matters of significance or they were not explored in cross-examination in a way which would resolve whether they were significant or not. They were classically matters where the magistrate who heard the evidence would be in a much better position to assess their significance.
(a)The appellant pointed to the fact that the complainant in the FVEIC interview claimed she could not remember how she landed, but in court gave details of how she had fallen. It is true that when asked in the interview, “How did you land on the floor”, she said, “I can’t remember”. However, immediately prior to that she described “[g]etting punched and turning around and falling down on the hallway floor”. When giving evidence in court she was asked “do you recall what part of your body you fell on” and gave an answer that she fell face first and was facing towards the laundry, not towards the lounge room. When regard is had to the additional description given in her evidence of having turned around and fallen on the hallway floor, there is no inconsistency between the evidence given in the interview and that given to the court. She was cross examined about an asserted difference between the description given in the interview and that given in court. The questions contrasting her evidence given to police and given in court were unfair ones to the extent that they did not properly reflect the evidence that she had given. What to make of such questions and answers was something in relation to which the magistrate had a very distinct advantage over this court.
(b)The appellant pointed to the different estimates of the value of the dentures. He pointed to evidence that the complainant had at different points said they were worth “[a] couple of - thousands. A couple of hundreds” on the one hand, or “about $10,000” on the other. That evidence was given in the context of the complainant having dentures fitted by a government dentist after being on a waiting list. The obvious inference here was that she did not pay for them herself.
There was, in fact, no inconsistency between the two parts of her evidence as the reference to “[a] couple of – thousands. A couple of hundreds” was a reference to how much the dentures that got broken were worth, whereas the reference to “about $10,000” was made in relation to the replacement dentures that she received after having gone “five months with no teeth”. Even if there had been some difference in her estimates, the factual issue was not one of any significance for the purposes of the complainant’s narrative, and a lack of knowledge of the cost would be understandable in a context where she had not herself paid for the dentures. It is not something clearly indicative of unreliability of the complainant’s evidence.
(c)The appellant points to evidence in the complainant’s FVEIC interview where she said:
And I basically just pretty much ran out the door. As that happened [the appellant] said I’m so sorry, I’m sorry, I will pay for a new pair and I didn’t pick my teeth up or bring them with me or anything, I ran straight home.
This was said to be inconsistent with the evidence that she gave in court as follows:
And you told police in your recorded statement with them that he tried to stop you?---It was kind of, like a shuffle, side-to-side, and he was just saying, ‘I’m sorry’, and, ‘I was just distressed’, and just – I didn’t run out of the house but I – I went out of the house crying and continued across the next door neighbour’s lawn crying and into my own house.
Although in cross-examination she was asked whether she ran out of the appellant’s house, it was not suggested to her that there was any inconsistency between the versions of events that she had given about the manner in which she left. To the extent to which there might have been an inconsistency between running and not running, the use of the word “run” in the FVEIC interview is consistent with a description of leaving immediately, as opposed to the literal act of physically running out of the house. In circumstances where whether she ran or walked was not of any significance to the substance of the allegations, where she had given a specific description of how he had moved from side to side in an attempt to impede her departure, and where the issue was not explored in any detail in cross-examination, it is of little significance in assessment of the complainant’s credibility.
(d)The appellant alleges that the inconsistencies as to the number of breaks in her dentures is of significance. There was no significant description in the evidence as to precisely the structure of the dentures. In the FVEIC interview, the complainant said that they had been broken in two places and gave a description to the police officers conducting the interview of how they had been broken. The complainant was clearly illustrating how that occurred in a manner which is not apparent from the transcript and was not apparent from the audio. In her evidence in court, she said:
The damage to the dentures, were they easily visible?---Oh, yes, they were broken – I heard someone say in the court today in two places. I believe it was three or four places. They were handed back to me in a piece of tissue. So it’s definitely broken more than in one place.
Once again, in how many places the dentures were broken was not a matter of significance for the case. The issue was not explored in cross examination. The answers given by the complainant in court ultimately settled on the dentures being broken in more than one place, which was consistent with what she had told police. The topic and the evidence given by the complainant were not such as to cast any significant doubt upon her version of events.
(e)The appellant pointed to the evidence of First Constable Carson that the complainant had told First Constable Carson that the appellant picked the complainant up from her own home, whereas in the FVEIC interview she said that she was picked up from a girlfriend’s house. The evidence that the complainant gave in court was that she had been picked up from a girlfriend’s house. In cross-examination, she specifically denied having told police that the appellant had collected her from her own house.
It would make no sense for the appellant to have collected her from her own house, as the evidence indicated that the two houses were very close together. In her FVEIC interview, she described that the appellant lived “one door away from me”. Constable Hayes gave evidence that they lived only 150 m from each other and there was almost a direct line of sight between the two. The fact that First Constable Carson may have understood her to have made a different complaint could have been a product of unreliability on the complainant’s part, but it is much more likely that it was an example of miscommunication on the initial recording of an issue that was not of central significance to the allegations being made.
(f)The appellant points to the uncertainty in the prosecution’s evidence as to when the incident occurred. First Constable Carson’s evidence was that on 18 January 2023, the complainant told her that the offences had occurred two weeks earlier, yet Constable Hayes’ evidence was that during the FVEIC interview on 19 January 2023, the complainant told him that it occurred about a week prior. Early on in the FVEIC interview, the complainant said that it occurred last Saturday or Sunday, the FVEIC interview having taken place on a Thursday. However, in the course of the FVEIC interview, she ultimately settled on it being on a Tuesday or Wednesday, although it was not clear how that related to the earlier estimates. It is clear that there was significant uncertainty as to when the incident occurred. It is for that reason that the prosecution particularised a substantial date range. Ultimately, the date on which the incident occurred was not a significant issue, as the version of events that was put to the complainant was that an incident had occurred, but that it was one in which the complainant had, uninvited, attended the appellant’s house, thrown her dentures on the floor and left. Although the uncertainty as to date is a matter to be taken into account, it is not necessarily one which significantly undermines the reliability of the complainant’s allegation of having been punched.
(g)The appellant pointed to the inconsistency within the complainant’s evidence arising from her evidence that the distance from the appellant’s house to hers was “about 800 m” but that it only took “about five seconds” to walk that distance. The complainant also said in her FVEIC interview that she lived “one door away” from the appellant. There was other evidence from Constable Hayes that the houses were almost within sight of each other and only 150 m apart. That is also consistent with the complainant’s evidence that once she left the appellant’s house, she “went out of the house crying and continued across the next door neighbour’s lawn crying and into my own house”. The reference to 800 m appears either to be a transcription error or an error of estimation on the complainant’s part. While an inability to estimate the distance is not a common failing, it is one which is not of significance to the allegations giving rise to the charges. Once again, it was not a matter explored in cross examination in a way that would demonstrate its significance for the purposes of the charges.
The fifth and final submission made by the appellant was that “there are numerous aspects of the complainant’s version of events that are so bizarre as to render her version of events implausible and contrary to common sense”. The matters referred to are the complainant’s evidence that the appellant was not in an aggressive mood but then, all of a sudden following a claim that he was a liar, had punched her. She said that he “wasn’t cranky after he did it even”. The appellant then pointed to the evidence that the complainant gave that he threw objects at her and did not say anything while doing so. The submission was that “this entire sequence of events is so bizarre that it cannot be accepted without some degree of corroboration”.
The evidence was not obviously bizarre. It indicated a blow being struck after an accusation of being a liar arising from infidelity, followed by apologies while attempting to slow the complainant’s departure, followed by apparently aggressive throwing of the complainant’s property at her. The assessment of that sequence of events would have been informed by the relationship evidence and by the impression of the appellant gained by the magistrate from seeing the body worn camera video of his interactions with police. The video, rather than supporting the proposition that the sequence of events described by the complainant was bizarre, tended to support the credibility of her allegations because it demonstrated the appellant’s hostile and aggressive behaviour.
The five matters raised by the appellant are matters which were relevant to the assessment of the evidence of the complainant. However, taken individually or collectively they were not such as to indicate that the magistrate erred in reaching a conclusion beyond reasonable doubt that the acts alleged by the complainant had occurred. The version of events given by the complainant involved a plausible narrative consistent with likely behaviour and motivations. The description of the events included details unlikely to have been given if, as the appellant contended, the story was a concoction. It was given, as the magistrate found, without embellishment. The complainant’s version of events included descriptions of the appellant’s behaviour favourable to him: not being aggressive before the incident, apologies and offers of restitution after the incident. It also involved the description of a minor injury which resolved quickly, unlikely to have been given if the incident was a concoction. It also involved surprise at the limited nature of the injuries, once again, details unlikely to have been given unless it reflected the reality. The circumstances in which the complaint was made were also consistent with it being a genuine one, that is, made in passing while in the presence of police. When giving evidence, so far as disclosed in the transcript, the complainant did so in a manner which disclosed matters adverse to her contentions and appeared to answer questions in a straightforward way. Further, there was a degree of corroboration of upset and broken dentures from Mr Sampson. There was also the evidence of the complaint to First Constable Carson, the circumstances in which it was made and the demeanour of the complainant at the time that it was made. It is in that context that the various matters raised by the appellant must be assessed. They are not matters which individually or collectively demonstrate any error on the magistrate’s part.
The Liberato point
The Liberato point was that the reasoning in Liberato v The Queen (1985) 159 CLR 507 at 515 applied even in circumstances where there was a bare denial of the offending made outside court. Counsel for the appellant made the submission that the court had to consider whether it could possibly disbelieve the appellant’s repeated and adamant denial of assaulting the complainant. In undertaking that exercise, it was submitted that the appellant did not lack credibility simply because he spoke of the complainant in a way that was aggressive, abusive or with disrespect. The appellant also submitted that his cooperation in providing the contact details of Mr Samson was a sign of somebody attempting to assist police to properly investigate the matter.
It was clearly open to the magistrate to reject the bare denial made by the appellant. It was a denial that was not given on oath and not able to be tested by cross examination. Because it was a bare denial, it did not involve a description of a reasonably plausible alternative version of events. It was a denial which was different to the version of events put to the complainant in cross examination. It was a denial given in terms which demonstrated hostility towards the complainant which was, at the least, consistent with the complainant’s allegations. Because the denial was a bare denial, there was nothing in it which tended to undermine the credibility of the complainant’s allegations.
When there is no alternative version of events put forward and the denial is not given in circumstances where it could be tested, whether or not it should be rejected will be dependent upon the other evidence in the case, particularly the evidence of the complainant. The issue comes back to whether the complainant’s evidence may be accepted beyond reasonable doubt.
In the circumstances of the case and with the benefit of being able to see and hear the complainant give evidence, it was open to the magistrate to conclude beyond reasonable doubt that she had been assaulted in the circumstances that she described and to not have a doubt about the accuracy of those allegations based upon the bare denial by the appellant.
Conclusion
Whether the ground of appeal is that asserting an unreasonable verdict, or simply a factual error on the part of the magistrate in finding the facts put forward by the prosecution to have been proved beyond reasonable doubt, I am satisfied that neither ground is made out.
Having reviewed the whole of the evidence and the magistrate’s reasons for judgment, and respecting the advantage that the magistrate enjoyed, I am not satisfied that the magistrate erred in accepting the complainant’s allegations beyond reasonable doubt. It follows that I consider that, upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty.
For those reasons the appeal must be dismissed.
Orders
In the event that an appeal against conviction is dismissed, s 218(1)(a) of the Magistrates Court Act 1930 (ACT) contemplates that the court will “confirm” the conviction. It is therefore appropriate to dismiss the appeal and confirm the convictions.
The order of the Court is:
1.The appeal is dismissed and the convictions on charges CAN819/2023, CAN820/2023 and CAN821/2023 are confirmed.
| I certify that the preceding one hundred and thirty [130] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 29 February 2024 |
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