Davison v Craig
[2015] ACTSC 390
•16 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Davison v Craig |
Citation: | [2015] ACTSC 390 |
Hearing Date(s): | 13 October, 16 December 2015 |
DecisionDate: | 16 December 2015 |
Before: | Robinson AJ |
Decision: | The appeal in relation to conviction is dismissed. See [34] |
Catchwords: | CRIMINAL LAW – Appeal From and Control over Magistrates – appeal against conviction and sentence - Whether verdict unsafe and unsatisfactory – whether finding of guilt open to Magistrate – self-defence – excessive self-defence – challenge to conviction on ground of unsafe and unsatisfactory dismissed. CRIMINAL LAW – Jurisdiction, Practice and Procedure – Judgment and Punishment - Sentence – whether sentence manifestly excessive – where parties agree the appellant should be re-sentenced – no prior criminal history - non-conviction order – good behaviour order. |
Legislation Cited: | Crimes (Sentencing ) Act 2005 (ACT) s 17 Evidence Act 2011 (ACT) s 38 Magistrates Court Act 1930 (ACT) ss 208, 214 (2) |
Cases Cited: | Fox v Percy (2003) 214 CLR 118 Grooms v Toohey (2012) 258 FLR 261 Zecevic v DPP (1987) 162 CLR 645 |
Parties: | Hope Davison (Appellant) Jason William Craig (Respondent) |
Representation: | Counsel Mr T Sharman (Appellant) Ms S Gul (Respondent) |
| Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 19 of 2015 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 22 January 2015, 6 February 2015 Case Title: Craig v Davison Court File Number: CC2014/2774 |
ROBINSON AJ:
The Appellant, Hope Davison, appeals from her conviction and sentence on a charge of assault occasioning actual bodily harm.
On 6 February 2015, Magistrate Boss convicted the Appellant and imposed a fine of $300.00 plus court costs.
The Appellant, by a Notice of Appeal dated 10 April 2015, says that “the verdict was unsafe and unsatisfactory” and that “the sentence was manifestly harsh and excessive”.
Jurisdiction
The Appellant appeals pursuant to s 208 of the Magistrates Court Act 1930 (ACT). Under such an appeal the Supreme Court must have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact (s 214 (2)).
Unsafe and unsatisfactory ground
The decision in SKA v The Queen (2011) 243 CLR 400, at [11] – [14], confirmed the function of an appellate court when asked to determine whether a verdict is unsafe and unsatisfactory was stated by the High Court in M v The Queen (1994) 181 CLR 487, where the majority (Mason CJ, Deane, Dawson and Toohey JJ) said at 493:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(citations omitted)
The majority went on to say, at 494:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility than an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(citations omitted)
As was noted by Refshauge J in Merrilees v R [2014] ACTCA 10, at [60]-[61] in a judge alone trial the reasoning process of coming to the conclusion can be scrutinised.
Analysis
The hearing was held over three days on 26 September 2014, 21 November 2014 and 22 January 2015. On the first day counsel for the prosecutor outlined the case to the Magistrate as follows:
Your Honour, this incident occurred on 10 March 2014. It’s alleged that the defendant and the complainant were living at [redacted for legal reasons] Gordon and at the time the defendant’s younger sister, Gemma, was also living there.
The defendant and the complainant had been in a relationship for nearly three years at that point in time and in the evening, sometime after 6 o’clock, the defendant approached the complainant, it’s alleged, and had a conversation with her about saving her some dinner. That escalated into an argument at which point the defendant has asked the complainant to pack up her things and leave and get out of the house.
The complainant is alleged to have told the defendant that she had nowhere to go and no-one to call but did borrow a phone from Gemma to call her mum. After the complainant has hung up the defendant is alleged to have assaulted her by pinning her down and grabbing her by the throat, at which point – and this is on a bed, your Honour, in the bedroom - at which point she’s begun striking her on her face multiple times. The complainant has managed to get up and the altercation has continued when they are standing. The defendant is said to have punched the complainant in the face knocking the complainant to the ground unconscious. Once on the ground the complainant regains consciousness and the assault continues with the defendant standing over the top of her kicking and punching her to various parts of her body.
In short, Gemma Davison rang police as a result of the argument and altercation between the two females. Police arrived. The complainant was taken to hospital. She was assessed there by Associate Professor Vanita Parekh, and again, on the next day. [On] the next morning photographs of the injuries were taken. That’s what will be relied upon in addition to Dr Parekh’s evidence.
Your Honour will hear from Nicole Moore, the complainant; Gemma Davison; the two police officers, Constables Pumfrey and Long who were first officers on the scene and then I’ll be calling Associate Professor Vanita Parekh and Constable Jason Craig.
...
Your Honour, I anticipate that this is a factual dispute but I understand my friend might give you some further information about that. In a nutshell that’s what is it.
The critical issues raised before the Magistrate during the hearing were:
(a)Whether the injuries, constituting actual bodily harm, and sustained by the complainant were caused by the Appellant. In this respect the Appellant alleged that the injuries to the complainant’s tooth, mouth and jaw line were self inflicted. This allegation of self inflicted injuries arose during the course of the trial and Dr Parekh was recalled for further cross examination on that issue.
(b)Whether the Appellant acted in self defence.
(c)Whether the Appellant “went beyond what would have been reasonable for her to do in self defence.”
At a general level the Magistrate found that on 10 March 2014 two women, who were in a relationship, were inside a home at Gordon, and started to argue. That argument escalated to a physical altercation. The Magistrate was unsure on the evidence of the complainant who made the first physical contact. The complainant was certainly punched and fell to the floor. Thereafter, the altercation moved to the bed. At a point of time the Appellant’s sister entered the room and attempted to pull the Appellant “off” and was unsuccessful. Police were then called. Senior Constable Craig recorded that the Appellant told him “I bashed her”. Inferentially, the Magistrate seems to have accepted that this was said by the Appellant. However, how she used this evidence is not apparent. As Mr Sharman pointed out “Whether [the Magistrate] took it to be a contemporaneous full admission of guilt or whether she took it to be simply an acknowledgment of what had occurred in response to something else.”
It is now accepted by the Appellant that the Magistrate directed herself properly on the onus of proof of these matters and on the issue of self defence (Zecevic v DPP (1987) 162 CLR 645, 661).
It is important to note, at the outset of this review, that in this case the Magistrate had the benefit of seeing and hearing conflicting accounts given by the complainant and the Appellant and that both the complainant and the Appellant’s sister gave evidence upon application of s 38 of the Evidence Act. It was also a feature of the hearing that evidence given by the complainant required careful assessment. For example the Magistrate observed:
The complainant in the matter gave evidence. Her evidence was at times difficult. It was very clear that she did not want to be giving evidence in relation to the matter. Her evidence was difficult to follow. Indeed, it was at times in contradiction to information that she had provided to the doctor and to police on their arrival in response to a call from the defendant’s sister to come to the house on 10 March 2014.
No submission was put to me that the Magistrate’s findings on credibility were not open: Fox v Percy (2003) 214 CLR 118.
The gravamen of the Magistrate’s decision was:
The issue of self-defence is raised. When the issue of self-defence is raised it must be negatived by the prosecution beyond a reasonable doubt. In relation to the issue of defence, I must be satisfied that the defendant honestly believed that she needed to use the force that was used in order to defend herself.
In this particular case that is somewhat difficult. The reason I say that is because it seems to me that I cannot be satisfied beyond reasonable doubt that the complainant did not begin the physical part of this altercation. It seems to me I cannot be satisfied that the defendant’s version of events as to how this altercation began, that is that the complainant essentially started the physical part by striking her.
I cannot be satisfied beyond reasonable doubt that she would not have thought honestly that she needed to take some action, and certainly the holding of the arms and potentially the wrestling, perhaps also stretching also to slapping of the complainant’s face would honestly have been a view held by her that that was what she needed to do and, indeed, the second limb of self-defence, that it would be reasonable in all the circumstances for her to hold that belief and take that action, that it is a subjective objective test.
However, it seems to me in all the circumstances that the defendant went beyond what would have been reasonable for her to do in self-defence. It seems to me that I can be satisfied beyond a reasonable doubt that there were a number of punches by the defendant to the complainant’s head in particular, and that those punches were in excess of what was needed and what reasonably to have been done in self-defence.
In my view, this is a situation where at the beginning of the incident there may well have been a legitimate issue of self-defence. However, as the incident unfolded it seems to me that what was done went well beyond what can at law be dealt with as a issue of self-defence (sic). For that reason then, in relation to the bruises to the complainant’s jaw, the laceration to the lip and the fracture to the tooth, I find that the prosecution has in relation to those injuries proved its case beyond a reasonable doubt and negatived self-defence beyond reasonable doubt. I therefore find the defendant guilty in relation to that charge.
Inherent in this reasoning process are two propositions which require closer examination. The first is the sequence of events. It is necessary that it be clear that “the bruises to the complainant’s jaw, the laceration to the lip and the fracture of the tooth” took place after it could no longer be considered that the appellant was acting in self defence. The second is the negation of the Appellant’s case of self infliction of those injuries which is embedded in the Magistrate’s decision.
Sequence
I have carefully tracked through the evidence given by the complainant and the Appellant to determine that it was open to the Magistrate to find that those injuries recorded in the previous paragraph must have been delivered after there ceased to be a situation capable of engaging self defence.
I have concluded that the finding that the injuries were sustained after the occasion for self defence had passed was well open to the Magistrate. There was some measure of agreement about the commencement of the altercation and its progress. Thereafter, there is variation concerning what transpired. It was open to find the events occurred in the way alleged by the complainant, particularly as the Appellant’s case alleged that the critical blows were not administered by the Appellant but were self inflicted.
Self infliction
Of course, there is a potential for circular reasoning here. The related point of self infliction of the critical injuries was the crux of the Appellant’s challenge.
Mr Sharman expressed his challenge as:
So, what her Honour relies upon is firstly, something that I would suggest is untenable, that is that self-inflicted injury would case the injury to the hand and secondly, that part of the evidence which can’t rise anywhere near as high as her Honour puts it. So, her Honour’s ultimate finding, that is her reasoning process, can’t be sustained and if the reasoning process can’t be sustained then the verdict can’t be sustained and because her Honour has made positive findings in respect of the appellant’s case in all other regards then ultimately your Honour has to, in my submission, come to the view that the verdict should be overturned and replaced with one of not guilty.
Associate Professor Dr Parekh examined the complainant on 10 and 11 March 2014. The first examination occurred at 9.50 pm. The complainant had been brought to hospital by ambulance at 9.08 pm. The Magistrate found it was a very thorough examination and at least 19 individually identifiable injuries were found. That was as the Magistrate noted consistent with the complainant’s evidence although by itself not negating self defence. The Magistrate continued:
There is noticed by the doctor a number of bruises to the left forearm suggestive of defensive injuries, and again that is consistent with the [complainant’s] assertion that certainly at one point she was simply in her words covering up while the defendant rained blows upon her. And certainly to that extent the medical evidence does appear to support the complainant’s version of events. Perhaps more significantly is the medical evidence around the face, the blunt force trauma to the head and the displaced tooth. And perhaps most significantly of all the evidence provided by the doctor is that there is no evidence whatsoever of any injury to the complainant’s hands. It was specifically put to the complainant that she had caused the injuries around her jaw line and the broken tooth by punching herself, specifically in an upper cut type movement. It seems to me inconceivable that there would not have been some injury had those injuries been occasioned in that way.
I note that Dr Parekh’s report is very thorough. It appears that she had looked in detail at the complainant and it seems that the doctor knew full well that she was providing a report for medico-legal purposes. I have no reason to believe that Dr Parekh is anything other than a thorough and highly professional medical officer and therefore it seems to me that if there had been injuries to the complainant’s hands, and specifically to her fists, those would have been noted and documented by Dr Parekh.
Dr Parekh’s evidence also given before the court – when put to her whether or not the injuries could have been sustained in the way of self-injury by the complainant, and in particular those injuries to the tooth, mouth and jaw line, her evidence on that point was perhaps some of the most certain evidence that one is likely to see in a courtroom in relation to an injury. Although she did not say “I can be satisfied beyond reasonable doubt that the injuries were sustained other than by self-infliction”, she came very close I think to that position in the terms that she used in relation to that question. It seems to me that I can be satisfied on the basis of the independent medical evidence that the injuries sustained, particularly those injuries around the jaw line and the broken tooth, were indeed sustained as a result of the action of the defendant and not self-inflicted wounds as suggested.
Mr Sharman submitted that these findings could not be justified on the evidence. He referred me to pages 50 to 52 of the transcript of evidence taken from Dr Parekh upon her recall to the witness box to deal with the Appellant’s case of self infliction. It had not been suggested to the Doctor when she first gave evidence. At page 52 Dr Parekh was asked and she answered:
All right. So what, then, is your conclusion if it was put that the injuries to the tooth and to the jaw and all of the injuries reported above the neckline, that is was suggested that they were in fact self-inflicted, that is, by the complainant?
I can’t be 100 per cent, but that’s the sort of level of certainty I would say that it is highly improbable that they were self inflicted.
It was open to act on this evidence. It also should be noted that this was not the only evidence on this topic. The complainant denied any self infliction of injury. Also the Magistrate concluded, on the Appellant’s evidence, there was no explanation for the quantum of 19 separate injuries noted on the various planes of the body of the complainant. There is an ambiguity in the expression of the Magistrate’s reasoning process. It is not entirely clear whether she was acting on the Doctor’s opinion with other evidence to make the finding (ruling out self inflicted wounds) or whether she thought that the Doctor’s opinion was itself sufficient to make the finding. I do not think it matters for the purposes of this ground of appeal.
I would dismiss the challenge to the conviction on the ground of unsafe and unsatisfactory.
Sentence
Following the finding that the offence was proved on 22 January 2015 the proceedings were adjourned for sentence on 6 February 2015.
Unfortunately, the Magistrate’s remarks on sentence were not recorded. What is known is the result only. The evidence before the Magistrate was also not recorded.
At the request of the Court, the parties sought to recreate the evidence before the Magistrate and reproduce any note of the decision taken by those attending court. That could not be done in October and so the matter for was adjourned to 15 December 2015.
Prior to the adjourned hearing I gave directions as to the filing of evidence to be relied upon at that adjourned hearing including seeking submissions as to whether I should apply, by analogy, the decision in Grooms v Toohey (2012) 258 FLR 261 at [40]-[55] to the evidence presented which had essentially the character of “further evidence.”
On the resumed hearing six character references were tendered by the Appellant. These were not before the Magistrate and neither party was able to identify the material which was actually before the Magistrate. In these circumstances the parties agreed I should proceed to sentence the Appellant afresh.
Disposition on Sentence
There is a finding that the altercation arose out of an argument about whether the complainant was a “good mother”. It arose, of course, in a domestic situation between partners. That brings with it sentencing principles of general deterrence. Also the injuries inflicted were serious.
The Appellant is now 22 years of age. She has no criminal record. I give this last factor significant weight. She is employed under an Indigenous Apprenticeship Program. All referees refer to her in glowing terms as hardworking, talented and a caring person. In particular, the referees say that the offence was completely out of character.
There is an element of self defence involved and a finding of who started the violence could not be made.
I take note of the fact that the Magistrate, notwithstanding there was a contested hearing, sought only to impose a $300.00 fine.
The circumstances are such that I propose to extend a chance to the Appellant to avoid all the consequences which come as ancillary to a conviction. I have determined to make a non conviction order pursuant to s 17 (2) (b) of the Crimes (Sentencing) Act 2005 (ACT).
Order
I order that the Appellant forthwith enter into a good behaviour order by signing an undertaking to comply with an undertaking to be of good behaviour for a period of two years.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: 16 December 2015 |
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