Davis v Stephens
[2019] ACTSC 271
•1 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Davis v Stephens |
Citation: | [2019] ACTSC 271 |
Hearing Date: | 23 September 2019 |
DecisionDate: | 1 October 2019 |
Before: | Crowe AJ |
Decision: | See [86] |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal against conviction and sentence – common assault and assault occasioning actual bodily harm – whether the Magistrate erred by failing to properly direct herself on the law of self-defence – whether the Magistrate erred by returning inconsistent verdicts – whether the recording of convictions constitutes a manifestly excessive sentence – appeal dismissed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 17 Magistrates Court Act 1930 (ACT) s 208 |
Cases Cited: | ED v The Queen [2019] ACTCA 10 Fox v Percy [2003] HCA 22; 214 CLR 218 Zecivic v DPP (1987) 162 CLR 645 |
Parties: | Emma Davis (Appellant) Jessie Stephens (Respondent) |
Representation: | Counsel B Morrisroe (Appellant) J Hiscox (Respondent) |
| Solicitors Boxall Legal (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 16 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 31 January 2019 Case Title: Stephens v Davis Court File Numbers: CC2018/12461;-CC2018/12463; CC2018/14134 |
Crowe AJ
This is an appeal against of the findings of guilt against the appellant and also the sentence handed down by Magistrate Boss (the Magistrate) who heard the matter on 30 and 31 January 2019 in the court below. The sentence was handed down on
7 February 2019.
The appellant had been charged with five offences arising out of an altercation with her former partner, Daniel Moloney (the complainant) in the early morning of
7 October 2018. The charges consisted of: one charge of assault causing actual bodily harm (biting of the right forearm); two charges of common assault (punches to the head and squeezing of the testicles); and, two charges in relation to damage to property (the complainant’s motorcycle and Ms Ashley Bockmealan’s phone).
The Magistrate found the appellant guilty of the three assault charges and dismissed the damage to property charges. She convicted the appellant and placed her on a Good Behaviour Order for 12 months.
The appeal is brought pursuant to sub-s 208(1)(b) of the Magistrates Court Act 1930 (ACT). The applicable principles are set out in Peverill v Crampton [2010] ACTSC 79 at [24] per Refshauge J. I accept that it is necessary to have regard to the significant benefit of the Magistrate in having seen and heard the oral evidence in the course of the hearing (Fox v Percy [2003] HCA 22; 214 CLR 218 at [25]). Although, I note that some of the evidence of the complainant and the defendant was given by audio-visual recording.
Hearing in the Court Below
Oral testimony was given in the prosecution case by Daniel Moloney,
Ashley Brockmealan, Senior Constable S Milliner, Dr S Ziaee, Dr F Shen and
Constable J Stephens. The defence called the appellant and her mother, Fran Treuen.
The prosecution tendered a disc containing the audio-visual recording of the complainant’s family violence evidence-in-chief interview (Exhibit “1”), and also a disc containing the recording of his calls to police at 05:36 am, 07:07 am and 07:15 am on
7 October 2018 (Exhibit “2”). Exhibit “3” consists of photographs of a clear bite mark on the complainant’s right forearm, a scratch on the inside of his right bicep and two photographs of his face. The latter show a small laceration at the base of his nose on the right.
Exhibit “4” consists of photographs of the complainant’s motorcycle showing some small scratches. Exhibit “5” consists of two photographs showing what appears to be bruising to the complainant’s testicles. Exhibit “6” is a clinical note from the complainant’s GP on 12 October 2018 and Exhibit “7” is a discharge letter from the Emergency Department of Canberra Hospital in relation to the attendance of the appellant on 8 October 2018. It is signed by Dr Shen, who was an intern at the time. Exhibit “8” is a disc containing the appellant’s family violence evidence-in-chief interview which occurred at just before 07:30 am on 7 October 2018. Exhibit “9” is a disc containing the record of interview of the appellant made later in the day after police had decided to charge her, rather than the complainant.
The appellant also tendered a number of discs and documents in her case. Exhibit “A” is a disc containing the audio messages left by the complainant on the appellant’s phone between 7:38 pm and 08:33 pm on Saturday 6 October 2018. Exhibit “B” is a copy of emails sent by the complainant to the appellant at 9:52 pm and 10:04 pm on
6 October 2018. Exhibit “C” is a disc containing the audio of short recordings of conversations between the complainant and the appellant on 23 September 2018. Exhibit “D” is a copy of the discharge summary from the Calvary Hospital Emergency Department in relation to the attendance of the appellant on 7 October 2018.
Exhibit “E” is a photograph of
Ms Brockmealan’s phone taken at 07:06 am on Sunday 7 October 2018. Exhibit “F” is a photograph of the inner part of the appellant’s left arm showing an area of bruising and Exhibit “G” is a photograph of the back of the appellant’s hands.
Evidence of the complainant
The evidence-in-chief of the complainant, in summary, was that at about 04:45 am on 7 October 2019 he heard someone using a key to enter the front door of his residence (although both he and the appellant’s names were on the lease she had moved out the day before. As he approached the door the appellant came in and started to punch him in the head. He had been on the couch with Ms Brockmealan. The appellant noticed Ms Brockmealan and started to move towards her. The complainant grabbed the appellant to try and stop her approaching Ms Brockmealan. The appellant then bit him hard on the right forearm and also grabbed and squeezed his testicles. By this time they were near the couch. Ms Brockmealan ran in to the bathroom and the appellant then followed her. The complainant ran after them. The appellant tried to close the bathroom door, however the complainant managed to insert his foot to prevent that. There was a struggle with the door which resulted in it coming off its hinges. The appellant then ran out towards the front door. As she passed the couch she grabbed two mobile phones (one owned by the complainant and one by Ms Brockmealan). The complainant’s phone was dropped in the front yard. He followed her out and saw her push over his motorcycle which was parked in the carport. He went to pick it up and she got into her car. He approached the car and tried to unlock her door to retrieve
Ms Brockmealan’s phone. The appellant moved the car. He jumped out of the way and she moved the car so that it bumped the rear of his motorcycle. The bump did not knock it over again. She then left.
Under cross-examination the complainant agreed that he and the appellant had broken up the day before the alleged assaults and that he had left a number of voice messages with the appellant to the effect that if she did not come and remove the last of her belongings from the house they would be put out in the front yard. Those messages were recorded on the disc which became Exhibit “A1”.
The complainant also admitted to sending the emails recorded in Exhibit “B”. He confirmed that the relationship had commenced in about August 2017. He also confirmed that the relationship was volatile, in the sense that each tended to be jealous of the other, which led to numerous fights. It was put to him that he had manhandled the appellant during a fight after a funeral in Goulbourn. He denied that. On another occasion it was alleged that the appellant locked him out of her daughter’s room. A disc containing a recording of the conversation which ensued became Exhibit “C”.
In relation to the events in question, the appellant’s solicitor put to the complainant that he did not tell the appellant to leave once she had entered the house. He said that he definitely did, many times. He confirmed that she punched him in the face, notwithstanding that he is over six feet in height and she is only five foot five. He said that she did boxing twice a week and knew how to throw a punch. As she started to punch he backed away and said “fuck off Emma, you’re pregnant. I don’t want to hurt you.” He grabbed her by the arms to protect Ms Brockmealan and himself once the appellant noticed her. That was when she bit him and then grabbed his testicles. It was put to him in cross-examination that this did not happen. He demurred. He said that “she tried to tear them off.”
It was put to him that the appellant did not go near Ms Brockmealan. The complainant said that she “100 per cent did.” Indeed, he claimed that she chased her into the bathroom. In response to the suggestion that the appellant ran into the bathroom to get away from him, the complainant said that this was not the case. She was following
Ms Brockmealan and he was concerned that she might hurt her. Also, he said that when the appellant had come into the house he was between her and Ms Brockmealan. There was nothing stopping her turning around and going out the front door.
In relation to the bathroom door, he denied that it had squashed the appellant. He said that it had come of the hinges because it was poorly secured.
The complainant denied that he punched the appellant when she bent over to pick up one of the phones. He also denied that the appellant had gone straight to her car and then drove away. He maintained that she had pushed his motorcycle over and also that she had moved her car forward to bump into it.
It was put to him that after the appellant had left he made a number of telephone calls to her. In one of those he had said that he would “make up a story for police” unless she returned Ms Brockmealan’s phone. The complainant said that he did not say that. He said that he told her that he would have no choice but to call police and make an assault allegation. If she returned the phone he said that he would not worry about it. He also denied that he grabbed hold of the appellant again after the door had come off its hinges.
Evidence of Ms Brockmealan
Ms Brockmealan, in her evidence-in-chief, said that she and the complainant were on the lounge together at his house at about 04:30 am on 7 October 2019 when they heard a key being used to open the front door. The complainant got up and she stayed on the lounge. She could not see the door, however she could hear a scuffling sound. She heard the complainant saying “get out”. She initially had her head under a blanket but then she looked up and could see them getting close. The complainant was trying to restrain the appellant. She recalled hearing him say that he did not want to hurt her because she was pregnant.
As they got closer she ran to the bathroom. A couple of seconds later the appellant also came into the bathroom and shut the door behind her. The appellant had her back against the door and the complainant was trying to open it to get in. Then the door came off its hinges. When that happened the appellant ran out of the bathroom. Ms Brockmealan stayed in the bathroom until the complainant returned some minutes later. Ms Brockmealan observed that his nose was bleeding, he had a bump on his head, and a bite mark and scratches on his arm. None of these injuries were present before the appellant had arrived.
Under cross-examination Ms Brockmealan maintained that the complainant had told the appellant to get out. She said that she heard him say “ouch” at one point, but did not actually see the appellant grab his testicles. She said that as they struggled and came close to where she was lying they stumbled and fell quite close to where she was, but not on top of her. She then ran to the bathroom. She said that she was a little bit scared of the appellant. She may have said she was sorry when they were in the bathroom together. She believed that the appellant did have her back against the door. She also stated that the appellant was not squashed by the door.
Evidence of the police officers and doctors
The police officers gave relatively formal evidence as to the steps taken in response to the complaints made by the complainant and also by the appellant.
Dr Ziaee was the GP the complainant attended on 12 October 2018. The doctor observed bruising to the testicles and also on the right arm in a finger pattern. Dr Ziaee was shown Exhibit “5” and confirmed that what was depicted in the photos was consistent with his/her observations on 12 October. Under cross examination the doctor confirmed that the bruising to the testicles accorded with that which might be expected five days after the trauma which the complainant claimed had caused the injury. The doctor did not observe bruising on the arm apart from the finger mark bruises.
Dr Shen was the intern at Canberra Hospital who attended on the appellant on
8 October 2017. The history as recorded in Exhibit “7” was that the appellant had been punched in the left flank region by her ex-partner at about 05:00 am the previous day. The impression recorded was that the appellant was suffering from musculo-skeletal pain and a urinary tract infection. Dr Shen said that if she had observed any bruising that would have been included in the discharge letter.
Evidence of Ms Treuen
In the appellant’s case her mother was called as the first witness. She said that she first saw the appellant on 7 October 2019 just before 09:00 am. Ms Treuen was asked in examination-in-chief what she had been told by her daughter of the events in question. In response, she embarked on a long and not entirely helpful answer, which included matters of belief and supposition. The Magistrate intervened on a point of evidence, at which point the appellant’s solicitor put the argument that the evidence being led from the witness was complaint evidence. The Magistrate pointed out that the defendant was not the complainant. The solicitor responded that the appellant had made complaints to the police about the complainant’s conduct and that this evidence was relevant to her credibility. The following exchange then occurred:
Her Honour: Well, this is first-hand hearsay though, isn’t it?
Ms Dunne: The defendant will be giving evidence.
Her Honour: Well, this is an unusual way around. Normally the defendant gives evidence and then other witnesses.
Ms Dunne: I am happy to move on from the complaint to later in the morning if that would suit Your Honour’s purposes.
Her Honour: It seems to be first-hand hearsay but the whole point is that the veracity is under challenge. In any event, if that line of questioning is not pressed then, very well, we can have the witness back, thank you.
Ms Treuen then returned to the witness box and gave evidence that she was present when the complainant telephoned the appellant, and heard the conversation as the phone was on speaker. She said that she heard the complainant say, “if you don’t stop this now and keep Ashley’s husband out of this I’m going to – we’re going to put a story together and I’m going to get you into a lot of trouble.” She said that she heard other conversations in which the complainant used many “f-words”.
The appellant’s solicitor asked Ms Treuen if she was aware of “…any particular issues in the relationship” (referring to the relationship between the appellant and the complainant). Ms Treuen commenced another long answer. The prosecutor then objected on the basis that the dysfunctional nature of the relationship had been conceded by the complainant. There was then some debate as to whether the details of the particular events being described by Ms Treuen had been put to the complainant. The following then appears in the transcript:
Ms Dunn: Am I to take it that Your Honour is disallowing the line of questioning?
Her Honour: Well, I’m going to allow - well, it’s not cross examination but there is room for some relaxation, well, not relaxation of the rules, but certainly a wider interpretation of the rules for a defendant, but I’d just urge you to take some care about the questions asked and be mindful of relevance. Thank you.
Ms Dunn: Thank you, Your Honour. I’ll just put a more general question to Fran to finish. What would you say was the dynamic of the relationship between (the appellant) and (the complainant)?---One of control and power, on his behalf and submission on (the appellant’s) behalf.
Under cross-examination Ms Treuen accepted that she could not remember the exact words used in the telephone calls. She agreed that the general gist of the calls from the complainant were “put a stop to this, stop involving Ashley and we’re going to the police”, although she added to that “and her husband.”
Evidence of the appellant
The appellant then gave evidence. She confirmed that she had moved the bulk of her belongings out of the house on 6 October 2018. She had turned her phone off to avoid receiving calls and messages from the complainant. She woke up some time after 04:00 am on 7 October 2018 and after reading the messages and emails she decided to go to the house to see what had happened to the things that remained there.
She said that she unlocked the door and took a couple of steps into the house when the complainant came at her yelling obscenities. He grabbed her shoulders and arms and was pushing her. She said he was not pushing her anywhere in particular, just pushing her, holding her and hurting her. She said she was stuck in the lounge room.
The appellant then looked into the lounge room and saw someone lying on the couch. She saw a woman’s shoes. The appellant said that by that point the complainant had her near the lounge and she saw “their phones”. She thought there might be something on the phones to prove what had been happening, so she pushed them away towards the front door. She said she did this with her foot. She had to do this because the complainant still had hold of her. At that point Ms Brockmealan got up and walked down the hallway.
The appellant claimed that at that point the complainant said “oh yeah, that’s who it is. Yep, m’mm, yeah, I have been with her, so fuck you…”.
She said that she managed to twist free of the complainant, but that because he was blocking the doorway she went down the hallway towards the bathroom. Upon entering the bathroom she realised that Ms Brockmealan was there. Ms Brockmealan was saying she was sorry. The appellant wanted to prevent the complainant from approaching so she went to close the door. She said the complainant pushed it straight on top of her and slammed her against the wall. The door came off its hinges.
The appellant said that she got out of the bathroom somehow and tried to get to the front door. The complainant grabbed her again and was hurting her, so she tried to bite him, but he was laughing at her. So, she bit harder and finally he let go and she went out the front door as quickly as she could. She said she bent down to pick up Ashley’s phone and he hit her hard in the back. He said “if you don’t fuck off I’ll fucking hit you again”.
The appellant got into her car and locked the door. The complainant tried to unlock it and banged at her car. She reversed out and drove to the police station. It was while she was waiting at the police station that she took a photograph of Ms Brockmealan’s phone. That photograph was admitted into evidence as Exhibit “E”.
After speaking to the police she went to Calvary Hospital because her back was hurting. Then she went to her mother’s house. At this time she was receiving phone call after phone call from the complainant. She confirmed that at one point she put the complainant on speaker and he said words to the effect of those summarised in paragraph [24] above.
She confirmed that she went to Canberra Hospital on the morning of
8 October 2018. While she was waiting she took a photo of bruising on her left arm. That photo was tendered and became Exhibit “F”. She had also taken some photos of her hands after the police record of interview. They were admitted into evidence as Exhibit “G”.
The appellant denied punching the complainant and also denied grabbing or squeezing his testicles. She admitted to biting him but said that she did that to get away from him. Her best recollection was that it had occurred after the bathroom door incident. She denied touching his motorcycle or driving her car into it.
In relation to the altercation which commenced after she stepped into the house, the appellant claimed that the complainant grabbed hold of her straight away. While he may have said “fuck off”, “go” or “get”, he held on to her so she couldn’t do anything.
In cross-examination the prosecutor reminded the appellant that during the course of the record of interview she had told police that in the email he sent her on the Saturday night (6 October 2018) the complainant had claimed that he had been cheating on her the whole time, and threatened that if she didn’t pick up her belongings he would start throwing it out and trashing it. She was then shown Exhibits “A” (i.e., the transcript of the messages) and “B”. It was put to her that nowhere in that material did it say anything about him cheating. The appellant disagreed. She said that the references to him telling her of every single thing he did and having no regrets (etc.,) amounted to taunts about cheating. She agreed that this was her understanding.
It was also put to the appellant that nowhere in the messages did the complainant say he was going to “trash” her belongings. She responded that his reference to putting it out the front meant putting it out in the weather. She agreed that she had not contacted him to say that she would come and pick up her things prior to doing so on
7 October 2018.
There was some cross-examination about the nature of her relationship with the complainant. The appellant alleged that most of the time it was the complainant who yelled, attacked and interrogated her. She claimed that she infrequently yelled back at him in response.
In relation to the morning of the alleged assaults, it was put to the appellant that she had told police that the complainant was trying to push her and get her out of the house, but that in her evidence to the Court she claimed that he was pushing her whilst also holding on to her. She responded by saying that he was pushing her “left and right” but holding her.
The following exchanges then occurred:
Prosecutor: You also said to police, in the record of interview, “(The complainant) was just trying to push me out the door and I think that’s when she must’ve got up”. You’re obviously talking about Ashley at that stage. So you were quite clear, when you were talking to police, that (the complainant) was trying to get you out of the house, weren’t you?
Appellant: I don’t know. It was a big blur all in that morning.
Prosecutor: But that day that you do the interview, that’s the same day it’s all happened, and in that you repeat, I think three times, that he was trying to get you out the door?
Appellant: Well, I don’t remember him trying to get me out the door at all, I remember him hurting me and holding me and me not being able to go anywhere other than be restricted and restrained by him.
Indeed, the appellant went on to say that the complainant had moved her closer to the couch. That is, he was moving her further inside the house, rather than towards the door.
After Ms Brockmealan had gone down the hallway the appellant said she knew who she was, she just wanted to confirm that. She said that as she couldn’t get out the door so she followed Ms Brockmealan to get away from the complainant.
It was put to the appellant that she had told police that she had walked to the bathroom. She said she had not been able to hear the recording.
The prosecutor then asked the appellant about the differing versions as to when the biting incident occurred. She had previously told police that it had occurred before the bathroom door incident, and at another time after that incident. In her evidence in court she said it had occurred afterwards. The appellant eventually said that she could not remember.
It was put to the appellant that the complainant punched neither her nor her car. She maintained in each case that he had. She also denied that she had assaulted the complainant.
The appellant was pressed as to why she had taken Ms Brockmealan’s phone. The answers are not clear. At one point the following exchange occurs:
Prosecutor: … But I’m going to suggest that you told police, a number of times, that you wanted that phone as evidence she was there and…?
Appellant: I didn’t tell them a number of times that I wanted it as evidence. I told them, when they asked me about the phone, why I took it, and I said to have it as evidence that she was there. I was not focused on the phone at all.
The appellant said that she looked at the complainant when he was trying to get into her car and he had no marks on his face.
Magistrate’s Decision
The Magistrate gave an ex tempore decision on 31 January 2019. After reciting the evidence her Honour concluded that the relationship between the appellant and the complainant had been “toxic” and was infected with mutual jealousy. Indeed, the Magistrate saw jealousy as the explanation for why the appellant went to the house very early in the morning of 7 October 2018 without giving any warning to the complainant.
Her Honour did not see the appellant’s claim that the complainant was restraining her and blocking her exit as logical. She accepted the complainant’s evidence that the appellant was trying to move towards the person on the couch and that he was trying to prevent that. She continued:
The complainant had a lump, that was observed, on his forehead, blood on his face, that was - and scratching on his arms - consistent with his version of events, but not consistent with the version of events presented by (the appellant). Ms Brockmealan’s evidence was that those injuries were not … on the complainant, prior to (the appellant) arriving. There is substantial evidence of the injury to the complainant’s testicles.
Again, this is unexplained on the version of events of (the appellant). It is explained on the version of events put forward by the complainant and it was not put to either the complainant or Ms Brockmealan that either of them had, either the complainant had occasion those induced to himself, or that Ms Brockmealan had occasioned them to him. They remain unexplained, except for the version of events given by the complainant.
(The appellant) following Ms Brockmealan to the bathroom, again, is consistent with her animist toward that person and the complainant’s concern over what she might do would be logical, in those circumstances. Why (the appellant) took the mobile phones, again, appears to be linked to her state of mind and the fact that she was jealous in relation to what was occurring. It is not otherwise adequately explained and, indeed, (the appellant) could give no reasonable explanation as to why she took Ms Brockmealan’s telephone.
In relation to whether the bite occurred by way of self-defence, her Honour, after referring to the decision in Zecevic v DPP (1987) 162 CLR 645 (Zecevic), said:
It seems to me in all the circumstances that the complainant (sic) was, at the material time, making a beeline for Ms Brockmealan and was being restrained by the complainant. In those circumstances it is not open for her to now claim self-defence in relation to that bite. In any event, given the circumstances of her arrival, of her forcing herself into the room and toward Ms Brockmealan, in all the circumstances it seems to me that the prosecution have negatived self-defence in relation to that bite.
The Magistrate went on to point out that unlike the situation in relation to the assaults, there was no corroboration of the complainant’s testimony in relation to the damage to the motorcycle. Her Honour was left with a reasonable doubt on that basis. She had previously indicated that the evidence as to whether Ms Brockmealan’s phone had been damaged, and if so when and how, was so unsatisfactory that she was not prepared to find guilt in relation to that charge.
Notice of Appeal
The grounds set out in the notice of appeal are as follows:
(i) The Learned Magistrate erred by unduly interfering in the conduct of the defence case; and/or
(ii) The Learned Magistrate erred by not properly directing herself to the law of self-defence in terms of both personal self-defence and self-defence of property; and/or
(iii) The Learned Magistrate erred by not properly admitting the evidence of Fran Treuen and not properly directing herself as to the use of that witnesses evidence in terms of S66 and S108 of the Evidence Act (ACT) 2011; and/or
(iv) The Learned Magistrate erred by returning inconsistent verdicts by dismissing charge CC2018/12462 and returning verdicts of guilty on charges CC2018/12463, CC2018/12461 and CC2018/14135 (sic) in circumstances where the evidence was substantially the same between those four counts. That error was compounded because the verdict of not guilty on charge CC2018/12462 should have caused reasonable doubt in relation to the other counts.
The appellant ultimately did not press grounds (i) and (iii). I also note that the appellant erroneously referred to charge CC2018/14135 on the notice of appeal. It is clear that this was a typographical error. I have therefore substituted reference to this number with the correct charge number on appeal, that being CC2018/14134.
Submissions
Appellant
In oral submissions counsel for the appellant pointed to some unsatisfactory aspects of the complainant’s evidence: his failure to mention the voice messages he left on the appellant’s phone on the night of 6 October 2018 in his evidence-in-chief interview; his assertion in that interview that the appellant had ripped the sheet off
Ms Brockmealan; and, his explanation regarding his failure to inform Centrelink about his relationship with the appellant. It was claimed at the hearing that these matters, to which her Honour did not refer in her decision, undermined her reliance on the consistency of the complainant’s evidence. It was also argued that the Magistrate had overstated the degree to which Ms Brockmealan’s evidence had corroborated that of the complainant.
The appellant argues that the Magistrate misdirected herself in relation to self-defence. She says that the defence extends to conduct that the person charged believes is necessary to defendant himself or herself or to protect property from unlawful destruction, damage or interference (see s 42 of the Criminal Code 2002 (ACT)).
It is submitted that the Magistrate failed to deal with the proposition that the appellant was entitled to enter into the residence to take reasonable steps to protect her property. This was in the context where the complainant had stated that he had already put her belongings “out the front”.
The appellant argues that Magistrate erred by effectively characterising the appellant’s entry into the premises as the creation by her of a situation of provocation.
The appellant further submits that there is a logical inconsistency in the finding of not guilty in relation to the damage done to the motorcycle and the finding of guilt in relation to the assault charges. By reference to appropriate authorities, the appellant accepts that she must demonstrate that the findings of guilt are unreasonable having regard to the circumstances of the case, and in particular, the circumstances of the acquittal.
The appellant argues that the evidence supporting the four charges specifically involving the complainant and his property was essentially reliant on the credibility of the complainant. If he was not to be accepted beyond reasonable doubt in relation to one charge that doubt had to be present for all of them.
The appellant put the proposition, by reason of the above, that there was a miscarriage of justice and the findings of guilt in relation to the three assault charges should be quashed.
In the event the appeal against the findings of guilt are unsuccessful the appellant argues that the sentence imposed by the Magistrate was manifestly excessive. The argument focusses on the recording of a conviction in relation to each of the assault charges. The appellant submits that when regard is had to all of the circumstances including the age, good character, lack of criminal history, objective and subjective factors together with the circumstances of the offending, the imposition of convictions was manifestly excessive.
Respondent
In relation to the self-defence issue, the respondent makes the point that the
ex tempore reasons must be read in the context of the circumstances of their delivery, paying due regard to the pressure under which the Magistrates Court operates. Reference is made in the written submissions to what Mossop J said in Greenwood v Barlee [2018] ACTSC 46 at [4].
The respondent points out that the relevant law here is the common law as stated in Zecevic. That was the test applied by the Magistrate.
In relation to the proposition that in entering the property and trying to force her way past the complainant, the appellant was engaging in reasonable conduct in order to secure her property from unlawful interference, the respondent points to the findings of the Magistrate. The respondent acknowledges that initially it may have been the case that the appellant went to the house to check on her property. However, that changed once she entered the house, particularly once she saw the other female on the couch. At the point of noticing the presence of the other female the appellant’s main purpose changed to being about confirming the identity of the female and perhaps to obtain evidence of her presence. The complainant was acting to protect Ms Brockmealan by blocking the appellant and trying to move her towards the door. The appellant was not trying to protect her property when she bit the complainant. She was trying to prevent the complainant from stopping her approach to Ms Brockmealan. The appellant did not act in self-defence at that point.
The respondent also points to the lack of evidence that the appellant was at the relevant time vocalising a right to obtain her property.
In relation to the alleged inconsistency in verdicts, the respondent submits that her Honour found the appellant not guilty of the motorcycle charge on the basis of insufficient evidence that the appellant had caused the damage, rather than a rejection of the complainant’s evidence. It is said that the evidence of what occurred in the house was entirely separate.
Because of the absence of corroborative evidence, including, for example, evidence of a mark on the appellant’s car consistent with the scratch on the back of the motorcycle, the Magistrate was simply left with word against word in the accounts of the complainant and the appellant. Her Honour made no specific finding for or against those accounts. Rather, she considered the prosecution to have simply failed to prove the charge beyond reasonable doubt. On that basis, there was no need for a direction along the lines of that extracted from R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [188] and [191] in the appellant’s written submissions.
In relation to the sentence appeal, the respondent points to the fact that in the submissions made to the Magistrate the appellant’s solicitor indicated that a non-conviction order (under s 17 Crimes (Sentencing) Act 2005 (ACT)) was not sought. Such an order is an “exceptional outcome” once a finding of guilt is made: see Proud v Sladic [2014] ACTCA 26 at [42].
In any event, even if the issue should be considered anew, a conviction is warranted in this case on the basis that:
(1) The offender’s character, antecedents, age, health and mental condition are either neutral factors, or slightly tend to her favour in the contact of a section 17 application;
(2) It was important for the court to acknowledge the family violence context of the assaults, the degree of injury suffered by the complainant, prior provocation, the appellant’s pregnancy and the need to deter such behaviour; and,
(3) There was a lack of extenuating circumstances.
The Magistrate considered these matters and applied the appropriate sentencing principles, including deterrence, accountability and enunciation of conduct.
On this basis, the respondent submits that the appeal should be dismissed and the orders of the Magistrate confirmed.
Consideration
In relation to the challenge to the Magistrate’s acceptance of the complainant’s evidence based on the matters referred to in paragraph [56] above, I should say that I see those as rather peripheral issues which did not appear to have been raised in submissions made to the Magistrate. There was therefore no reason for her Honour to specifically deal with them, particularly given the fact that she delivered her reasons for decision ex tempore at the end of the hearing. In relation to the evidence of
Ms Brockmealan, it did not seem to me that the comments of the Magistrate at T 119 -120 were, in substance, inconsistent with the evidence recorded at T 39 - 40. The key point was that Ms Brockmealan’s evidence corroborated the complainant’s claim that he was trying to restrain the appellant from getting closer to the lounge.
In relation to the self-defence argument, I accept the submission of the respondent. It is clear that the Magistrate did not accept the evidence of the appellant as to what occurred inside the house after she let herself in the front door. She did accept the evidence of the complainant, supported to some degree by the evidence of
Ms Brockmealan. It follows that her Honour simply did not accept that the appellant was restrained by the complainant such that it was reasonable for her to bite him in order to obtain her freedom.
The suggestion that the bite was a reasonable response in all the circumstances so as to protect her property from unlawful interference seems to me to be an attempt to rationalise the incident after the event. That was certainly not the way the case was put to the Magistrate in submissions by the appellant’s solicitor (see T 114 l40-47). That submission depended upon the Magistrate finding that the complainant was holding onto the appellant to prevent her from retreating out of the house. Once her Honour found the opposite (that is, that the complainant was trying to stop her coming further into the house) the basis for self-defence fell away.
The appellant referred to the Court to a decision of the ACT Court of Appeal in
GW v The Queen [2015] ACTCA 15. In that matter the Court (Murrell CJ, Refshauge and Ross JJ) said:
[56] Appellate courts should approach a claim of inconsistent (or unreasonable) verdicts with caution. Particularly where there is evidence to support a verdict of guilty, there is a need for great caution in presuming that a jury has acted inappropriately in returning that verdict: Still v The Queen [2010] NSWCCA 131 at [60] per Johnson J (Basten JA and Rothman J agreeing), Youkhanis v The Queen [2014] NSWCCA 220 at [87]. If there is an apparently rational explanation for the jury differentiating between charges, that explanation should be preferred to one that suggests that jurors have failed to adhere to their oaths and agreed on a compromise: Pillay at [26].
[57] The test of whether there is an inconsistency (or whether the verdict of guilty is “unreasonable”) is a test of logic and reasonableness: MacKenzie. The question is whether no reasonable jury that had applied its mind properly to the facts in the case could have arrived at the conclusion: R v Stone (Unreported, Court of Criminal Appeal of England, Devlin J, 13 December 1954) (cited in Mackenzie). Another way of formulating the test is: Whether the only explanation for the outcome is irrational and improper compromise by the jury: Pillay at [30].
[58] The appellant relied upon an oft quoted passage in Jones v The Queen (1997) 191 CLR 439. At 453, Gaudron, McHugh and Gummow JJ considered that the jury’s rejection of the complainant’s account on one count diminished her overall credibility and made it difficult to see how it was open to the jury to be convinced beyond reasonable doubt of the appellant’s guilt on other counts because:
There is nothing in the complainant’s evidence or the surrounding circumstances which gives any grounds for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.
[59] However, Jones is not authority for the proposition that, in “word against word” cases, mixed verdicts of acquittal and guilty necessarily show inconsistency (unreasonableness) by the jury. Whether a conviction is truly inconsistent (unreasonable) depends upon the circumstances of the particular case: R v NEK [2001] NSWCCA 392 at [24] per Priestley JA, Peiris v The Queen [2014] NSWCCA 58 per Leeming JA at [22] – [25]. In Peiris at [28], Leeming JA observed that a jury would be entitled to return different verdicts based not only on differences that were discernible on the face of the transcript and the documentary evidence, but also based on the complainant’s demeanour when recounting different episodes, or by having regard to the inherent plausibility or implausibility of the relevant conduct.
The principles to be applied where an appellant appeals against a conviction on the ground of reasonableness arising from inconsistent verdicts were again stated in
ED v The Queen [2019] ACTCA 10 at [43] per Murrell CJ, Mossop and Bromwich JJ:
Where the asserted unreasonableness is based on inconsistency between verdicts, the relevant test is still one of unreasonableness, not inconsistency as such: MFA at [36]. A complaint of inconsistency will fail if the verdicts can be reconciled, i.e. if there is a logical basis for the different verdicts: MacKenzie v The Queen (1996) 190 CLR 348 (MacKenzie) at 369; MFA at [42]. Expressed slightly differently, an appellant must establish that the different verdicts are “an affront to logic and commonsense”: MacKenzie at 368; MFA at [86].
(e) The focus of an unreasonableness inquiry is upon any explanation for the acquittals (not the convictions), other than doubts, about the complainant’s credibility: TK v R [2009] NSWCCA 151; 74 NSWLR 299 at [128], [130] (Simpson J, McClellan CJ at CL and Latham J agreeing); Roos v R [2019] NSWCCA 67 (Roos) at [44]–[45].
(f) Even where different verdicts relate to counts arising from the same course of conduct, the verdicts may, as a matter of logic, be capable of standing together and may be consistent with the jury having performed its function properly: MacKenzie at 366; Roos at [42]–[43].
(g) Although the credit of one complainant is critical to the consideration of a number of alleged offences, different verdicts may be capable of reconciliation: MFA at [35]; BI at [13]. A verdict of not guilty does not necessarily imply that the complainant has been disbelieved, and may simply indicate that she has been found to be more reliable in relation to some aspect of her evidence than others: MFA at [34]. A jury may have considered the complainant’s evidence to be more reliable if, for example, the degree of detail and consistency of her account is greater in relation to some matters when compared to others: The Queen v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 (Markuleski) at [34]; Walker v R [2019] NSWCCA 4 (Walker) at [108]; The Queen v BDH [2019] QCA 47 (BDH) at [115]–[117]. In other cases, while not disbelieving the complainant, the jury may have proceeded cautiously in relation to the “discharge of a heavy responsibility”: Markuleski at [219]–[221]; MFA at [34]; Roos at [43]. Jury directions emphasise the high standard of proof, and jurors may require some independent corroboration before they are satisfied beyond reasonable doubt of some allegations: MFA at [34]; MG v R [2017] NSWCCA 14 at [84]; Walker at [107] (Hoeben CJ at CL, Rothman and Price JJ agreeing).
While it is true that the court was there considering an appeal from a jury verdict, it seems to me that the basic principles set out above are applicable to an appeal from a Magistrate’s verdict. Importantly, the bare fact of there being a guilty verdict in relation to some charges arising from a course of events and an acquittal in relation to one or more charges arising from the same course of events is not enough to establish that the guilty verdicts must be unreasonable. It is necessary for the appellant to demonstrate that the different outcomes cannot stand together as a matter of logic and common sense.
The appellant argues that the finding of not guilty in relation to the motorcycle charge necessarily meant that the Magistrate did not accept the evidence of the complainant beyond reasonable doubt.
However, as the respondent pointed out, the Magistrate neither expressly nor impliedly made a finding about the credit of the complainant in relation to the motorcycle incident. Rather, she said that she was left with a reasonable doubt because of the absence of additional evidence to remove that doubt. One might well infer, as the respondent suggests, that very little in addition was required. For example, if the prosecution had established that the appellant’s car was marked at the point where it might have come into contact with the motorcycle that might have been enough. Or, if Ms Brockmealan had given evidence that she heard the complainant say “don’t push over my motorcycle…” at the relevant time, that may also have been enough. However, there was no such evidence.
It seems to me that the respondent is correct in distinguishing the verdicts in relation to the events that occurred inside the house from those which occurred outside the house. The evidence as to the circumstances leading up to the appellant’s entry into the house, the inconsistencies in her evidence once she was inside, the implausibility of her claim that the complainant was forcing her into the room, the cogency of the complainant’s evidence and the support of Ms Brockmealan’s evidence provided a logically acceptable basis in my view for her Honour’s finding of guilt in relation to the assault offences, notwithstanding her acquittal in relation to the damage to property offences.
Given that the Magistrate did not make any specific finding as to the credit of the complainant, and the fact that no submission was made that if the Magistrate was not satisfied as to the appellant’s guilt in relation to the damage to property (motorcycle) charge she should also acquit her of the assault charges, I do not see any need for the Magistrate to have directed herself along the lines suggested by the appellant. That conclusion is reinforced by the context of the distinction discussed in [82] above.
In relation to the sentence imposed by the Magistrate, it seems to me to fall within the range of appropriate outcomes given the findings of guilt. As pointed out by the respondent, no submission was made for a non-conviction order. I can see no error in the approach taken by her Honour. She took into account the relevant principles and the factual considerations arising from the circumstances of this case. I do not see the recording of convictions here as excessive, let alone “manifestly excessive”.
Conclusion
It follows from the above that the appeal fails and must be dismissed.
Orders of the Court
The Order of the Court is:
(1) The appeal is dismissed and the orders of the Magistrate are confirmed.
| I certify that the preceding eighty-six [86] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: 1 October 2019 |
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