Day (a pseudonym) v The The King

[2022] NSWDC 594

District Court

New South Wales

Medium Neutral Citation:

Day (a pseudonym) v R [2022] NSWDC 594

Hearing dates:

7 October 2022; 26 October 2022

Date of orders:

24 November 2022

Decision date:

24 November 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

On each matter the appeals against conviction are dismissed.

Catchwords:

APPEAL - Appeal against conviction - did Magistrate err - need to review all evidence from the Local Court - need for precise application of judicial directions - assessing complainant’s credibility given there was an acquittal of a count in the Local Court - reviewing credibility findings on an appeal - challenge to Magistrate’s credibility findings - can a judge ignore a Magistrate’s credibility findings - resolving “oath on oath” domestic violence on appeal- “self-serving evidence”

CRIME – Common assault - Intimidate intending to cause fear - Sexually touch another without consent - Domestic violence related

Legislation Cited:

Crimes Act 1900

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes (Domestic and Personal Violence) Act 2007

Evidence Act1995

Cases Cited:

AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218

BM v R [2017] NSWCCA 133

Browne v Dunn (1893) 6 R 67

Dansiev The Queen [2022] HCA 25

De Silva v The Queen [2019] HCA 48

Dyers v The Queen {2002] HCA 45; (2002) 210 CLR 285

Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Fox v Percy 2003) 214 CLR 118; [2003] HCA 22

Harper v R [2022] NSWCCA 211

Hodgson v R [2022] NSWCCA 72

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

Lunney v DPP [2021] NSWCA 186

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1

McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298

Mulder v Director of Public Prosecutions(Cth) (2015) 250 A Crim R 154; [2015] NSWCA 92

O’ Connell v DPP [2021] NSWSC1519

R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529

R v Markulevski [2001] NSWCCA 290

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Category:

Principal judgment

Parties:

Peter Day (the appellant)
Director of Public Prosecutions (the respondent)

Representation:

Counsel:
Mr S Boland (for the appellant)

Solicitors:
McAneny Lawyers (for the appellant)
Ms J Walshe (for the respondent)

File Number(s):

2020/00315147

Publication restriction:

In this judgment the appellant is referred to by a pseudonym.
The name of the complainant is not to be published, nor is any other material that could lead to the identification of the complainant or a child: s578A of the Crimes Act 1900; s15A Children (Criminal Proceedings) Act 1987.

 Decision under appeal 

Court or tribunal:

Wollongong

Jurisdiction:

Local Court, Crime

Date of Decision:

4 April 2022

Before:

M O'Brien LCM

File Number(s):

2020/00315147

JUDGMENT

Introduction

1. On 4 April 2022, Magistrate O'Brien convicted Peter Day (a pseudonym) of three offences:

• Common assault: s61 Crimes Act 1900.

• Intimidate intending to cause fear: s13(1) Crimes (Domestic and Personal Violence) Act 2007.

• Sexually touching another person without consent: s 61KC(a) Crimes Act.

2. The matter had been heard at Wollongong Local Court on 26 May 2021 and 18 and 21 February 2022. His Honour had reserved his decision in a written but unreported decision of the Local Court Wollongong on 4 April 2022. It is important to note that his Honour acquitted the appellant of three charges arising from a separate incident that was heard at the same time. In those matters it was alleged that the appellant has assaulted, intimidated and intentionally choked his daughter using a pillow (the pillow incident): ss 61 & 37(1A) Crimes Act and Crimes (Domestic and Personal Violence) Act. The appellant must have the full benefit of those acquittals.

3. The sexual touching allegations arose out of an argument between the appellant and his partner, the complainant, at their home in southern Wollongong on 3 November 2020. They had returned from a day at the races, where both had been drinking alcohol. She alleged that at one point he yelled at her and tried to take her phone. She said he then grabbed her and kissed her aggressively, but she did not reciprocate. He then, she said, pushed her down on a lounge. He made derogatory comments about her size and pulled on her singlet. Her breast was exposed and he squeezed her nipple, hard. He then lifted her leg and twisted it, hurting her knee. He also grabbed her and tried to kiss her again and then he licked her face.

4. The appellant had given a different version on his oath. He denied the complainant’s version of events. But he did say that at one point he had his hands on her waist and that as she took a backwards step his finger had stuck in her singlet top and her left breast was exposed.

5. As is his right, Day appealed his convictions to the District Court of NSW.

6. The appeal was heard at Wollongong on 7 and 26 October 2022. As it had to be fitted into a very busy list, I reserved my judgement until today.

7. Mr Boland, of counsel, who appeared for the appellant on the appeal and in the court below, provided comprehensive written and oral submissions that canvassed almost every aspect of Magistrate O'Brien’s decision and reasoning process. He took me in detail to passages in the judgment. He submitted, that his Honour erred in his decision. He challenged many of the findings made by his Honour about facts and credibility; which he said were inconsistent, unsupported, or failed to take into account proper judicial directions. In essence, he submitted, once the decision was made to acquit on the pillow incident charges, acquittals on the remaining charges were “irresistible.”

8. Accordingly, he said, it was necessary for me to review all the material provided to this court and make my own determination without recourse to what the appellant submitted was flawed reasoning.

9. Ms Walshe, Solicitor for the Director of Public Prosecutions, in written and oral submissions, said that there were no flaws in his Honour’s reasons or reasoning. To the contrary, she said, Magistrate O’Brien had carefully directed himself and dealt with in detail every submission that Mr Boland put to him at first instance. It is the Director’s position that the guilty verdict is sound and should not be set aside.

General Principles

10. An appeal to the District Court of New South Wales isbrought pursuant to s 11 Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). Section 18(1) provides that “[a]n appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19”.

11. This appeal proceeded on the basis that the appellant needed to, and could establish error, on the part of the magistrate: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218. The need to demonstrate error does not reverse the onus of proof. Demonstration of error can mean no more than satisfying the District Court judge that the magistrate should not have been satisfied beyond reasonable doubt as to the appellant’s guilt: McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298 at [90].

12. That said, I am still required to form my own judgment as to the facts based on evidence given in the Local Court proceedings: s18 CAR Act. The appeals must be upheld unless I am satisfied of the appellant’s guilt beyond reasonable doubt.

13. These considerations do not preclude, either expressly or impliedly, reference to the reasons of the magistrate and any findings by the magistrate as to the credibility of witnesses: McNab at [29]-[41] & [69]-[82]. It is accepted that I can have regard to the magistrate’s reasons and his assessment of the complainant and the appellant. It was the appellant’s contention that I would not give any weight to those findings, except those critical of the complainant’s evidence in the pillow incident matters.

14. It not unusual for issues of credit to “loom large” in cases involving allegations of sexual touching, sexual assault and or other domestic violence, where there is a dispute between the complainant and the appellant about what happened between them in a setting where no other person was present: McNab at [4].

15. The principles set out in Fox v Percy 2003) 214 CLR 118; [2003] HCA 22, are relevant to my assessment:

“A judge can have regard to the circumstances that he or she is deciding the case on a transcript and that the magistrate had the advantage of seeing and hearing the witnesses:” McNab at [78].

16. The principles to be adopted when dealing with a conviction for an indictable offence following a trial by judge were recently reinforced by the High Court in Dansiev The Queen [2022] HCA 25. The advantage that a trial judge might have over a court of appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial: Dansie at [17]

17. There is a “generic difficulty” in reviewing credibility findings on an appeal: McNab at [98]. While reference is often made to civil proceedings, such as Fox v Percy, that speak of the natural advantage of the trial judge, in McNab Justices Basten and McCallum noted that in the criminal appeal jurisdiction of the District Court it was “preferable” to rely on the approach adopted when dealing with a conviction for an indictable offence following a trial by judge: McNab at [98] & [99]. They referenced the High Court decisions of Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 and M v The Queen (1994) 181 CLR 487; [1994] HCA 63:

“It is only where a [judge'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 … 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 [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence:” Filippou at [12].

18. The task for a District Court judge when hearing a s 18 appeal is to form their own judgment on the facts and to determine, on the basis of the evidence that was before the magistrate whether that evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt: Mulder v Director of Public Prosecutions(Cth) (2015) 250 A Crim R 154; [2015] NSWCA 92 at [28]; McNab at [25]

19. I must form my own judgment as to the facts based on the evidence and transcript from the Local Court. If on the rehearing I conclude that the appellant’s guilt was not (and thus should not have been found to have been) established beyond reasonable doubt this will necessarily involve a conclusion that the magistrate committed some legal, factual or discretionary error. 

20. I note that on this appeal no further evidence was received pursuant to s 18(2) of the CAR Act or because of the calling of a witness pursuant to s 19. Although I had a transcript of the initial body worn video interview of the complainant Mr Boland asked that I view it. I was not given other recordings shown to witnesses during the hearing that were not tendered as exhibits.

21. Due allowance or latitude must be made for the prodigious workload of Magistrates (or Judges of this Court) and the need for the expedient resolution of matters, whether before a Magistrate (or Judge on Appeal). That latitude can apply whether judgment is written or ex tempore. But, that said, any judgment convicting a person must meet some minimum criteria. The level of detail required in a judgment must however be relevant to the complexity of the matter and the issues in dispute at the hearing.

22. A Local Court judgment must refer to the findings of fact on which the Magistrate relied. There must be evidence to support a particular finding. The Magistrate must get the law right. Principles of law which are applied must be correctly formulated. The Magistrate’s reasoning process must be exposed. Sometimes not withstanding some failure or omission in the judgment they can be excused if the judgment shows expressly or by implication that the correct principle was applied. If a warning is required to be taken into account, the Magistrate is obliged to take the particular warning into account. That obligation must be seen to be discharged:

“The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation:” Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68.

Magistrate O’Brien’s Judgment.

23. At the beginning of his judgement Magistrate O'Brien noted that, given the issues that were raised and the comprehensive submissions he had received, it was necessary for him to review all the evidence. He noted the complexity of the issues that arose for consideration during the hearing. He set out, in brief form, the directions of law he believed were necessary, referring to Fleming v The Queen. Many directions he set out detail although some he summarised.

24. He directed himself that if he had a reasonable doubt concerning the truthfulness or reliability of the prosecution evidence in relation to one of the charges, whether by reference to issues of demeanour of witnesses or for any other reason, that must be considered in assessing the truthfulness or reliability of the evidence generally: at [15]

25. He noted that if he got to a point where he was inclined to think the incident alleged probably happened but he had a reasonable doubt about an element or elements of that offence he could find the appellant not guilty but that did not necessarily mean that he could not convict of another charge. He said:

“I must consider why I had some reasonable doubt about that part of the prosecution evidence relied upon as proving the charge, and consider whether it affects the way I assess the rest of the evidence, that is, whether my doubt about that aspect of the evidence causes me to have a reasonable doubt about the part of the evidence relevant to the other charge:" at [16].

26. He reminded himself that in a criminal trial it is not a question of making a choice between the evidence and submissions of the prosecution and defence. He directed himself that he did not have to believe the appellant is telling the truth before he was entitled be found not guilty:

“If however after considering the evidence of the appellant and the witnesses called on his behalf I find the appellant evidence should not be accepted I must be careful not to jump from that view to an automatic conclusion of guilt:” at [17].

27. He gave himself a direction on how the appellant’s good character could be used; both on the question of guilt and to bolster his credibility as a witness: at [24].

28. Having completed his general directions his Honour then set up nine specific issues which required determination.

Issue 1 - The weight to be given to the child's evidence.

29. He concluded that he could put little weight on the child’s responses to any questions asked of her; either in her interview or during cross examination. He rejected the suggestion the child had been coached.

Issue 2 - Evidence that recordings made on the morning of the pillow incident had been deleted.

30. He found that the complainant had given a plausible explanation for deleting a telephone video recording which had failed to capture anything. He drew no adverse inference from her conduct.

Issue 3 - Did the complainant and her mother collude with respect to their evidence?

31. His Honour was not satisfied there was any collusion. He accepted the evidence that they were unaware of the potential for contamination.

Issue 4 - Did a text sent by the appellant constitute admissions?

32. His Honour accepted the defence submissions that what the prosecution said was a text admission of offending was inadmissible because it was ambiguous. He did however note that there were some illuminating aspects to the appellant’s evidence in relation to the pillow incident, aspects of which he could not accept and which he regarded as “disingenuous and self-serving.” He also rejected defence submission that the complainant was engaged in “an evidence gathering exercise to procure admissions in contemplating of proceedings."

Issue 5 – Can the prosecution establish the elements of the three pillow incident charges beyond reasonable doubt?

33. His Honour accepted a submission from Mr Boland that a police Fact Sheet should be given weight as a version of events attributable to the complainant. That Fact Sheet was made by a police officer based on her recall of what the complainant had told her: transcript p29. The Fact Sheet records that the complainant having finished a shower returned to the bedroom and saw the appellant with a pillow over the child's face with two hands on either side of the pillow for an undetermined period.

34. His Honour accepted that this accurately recorded what the complainant had said to police. He contrasted that with her police statement made six days later and her evidence under cross examination in which where she said she had denied telling the police she had finished her shower. On the shower point he said the “evidence to the court was in clear conflict with the version she had given to the police on that aspect.” [112].

35. His Honour noted the contrast between the complainant’s police statement where she said the appellant had placed the pillow over the child's face for about 5 seconds; with the Fact Sheet narrative, which referred to an “undetermined time". He noted her answers in cross examination where she said that while she did see how the pillow got on top of the child but conceded “Well (the appellant) was facing the bed, so he was away from me.”

36. His Honour also reviewed the appellant’s version of events, concluding; ”I found the appellant’s evidence with respect to the way in which the pillow came up on the child's face lacked credibility and was overall self-serving and implausible.” He rejected Mr Boland’s submissions that the conduct could be understood as “lawful correction.”

37. His Honour did however give the appellant the benefit of the doubt on the common assault and choking charges. Because of its importance to the appeal, I set out his conclusions:

“On all the evidence which I do accept, directing myself as I have, and whilst I have great difficulty in accepting the version proffered by the appellant in relation to flicking the pillow in the manner he suggests, noting the different versions of what the complainant initially told police about what had transpired and her evidence to the court I cannot be satisfied to the requisite standard that the appellant intentionally placed the pillow over the face of the child with the intention of suffocating her for the purpose of sequence 4", at [122].

38. His Honour then acquitted the appellant of common assault. He also acquitted the appellant of the intimidation charge because he was not satisfied the appellant knew his conduct was likely to cause fear.

Sixth issue - What inference, if any, could be drawn from the complainant’s failure to mention in her statements to police that at the commencement of the incident she had flipped a pizza onto the floor?

39. In her evidence in chief the complainant said that at the commencement of the incident, after being upset by the appellants changing the TV from her favourite show, she “flipped” a pizza, he had ordered and had delivered, onto the floor. She rejected a suggestion that she had added this evidence because she knew that a partial recording of the incident had been made by the appellant and that recording might show the pizza.

39. There was considerable cross examination on this point. His Honour noted that it was not unusual for initial statements to omit matters which others might later believe important.

40. His Honour was impressed by the complainant response during this “ardent” cross examination. He noted that she did her best and remained composed. He rejected a submission she was “thinking strategically”. He accepted her evidence about the pizza; which he found to be consistent with her version of events and the nature of the tense relationship prior to the allegations of criminal conduct. He concluded; “This issue has not affected my assessment of either her credibility or reliability:” at [136].

Issue 7 - Does the extent to which either the complainant or the appellant were intoxicated impact on their credibility or reliability?

42. After examining the evidence his Honour concluded that neither the appellant’s or the complainant’s intoxication did not impact on the reliability of either of their evidence.

Issue 8 - Had the prosecution established beyond reasonable doubt he appellant sexually touched the complainant or otherwise assaulted her?

43. His Honour set out the Judicial Commission Bench book directions in relation to section 61KC Crimes Act. He reviewed the evidence for the prosecution and the defence.

44. He did not accept the appellant’s version. He found it was “self-serving and lacking credibility”: at [162]. He referred to, as “illuminating”, his previous assessments of the appellant’s evidence. He emphasised portions of the appellant’s evidence, that illustrated what appeared to him to be a constructed version of events to explain how events unfolded. His Honour found the appellant’s evidence less than compelling and, in some instances, unsatisfactory.

45. One illustration he said was the appellant’s evidence about the couples practice to reconcile after an argument. A matter that was never put to the complainant nor, he noted, put into practice in either of the two incidents.

46. His Honour contrasted those conclusions with his assessment of the complainant’s evidence. He said her version of what occurred in the living room impressed him as “spontaneous and unrehearsed’ with the “ring of truth” and which was “without any dissembling.”

47. He concluded. “… overall, applying the observations of Brennan J in Liberato, I am satisfied beyond reasonable doubt of the truth of her evidence. The appellant lacked credibility or reliability when tested under the cross examination and his explanation failed to satisfy me that they bore any semblance of truth:” at [163].

48. He then found that the appellant had engaged in the conduct complained of which proved the sexual touching and common assault offences to the requisite standard.

Issue 9 - had the prosecution established the elements of the intimidation offence?

49. Having been satisfied beyond reasonable doubt that the appellant engaged in the conduct the substance subject of the other charges his Honour made quick work of the remaining count. He found that the appellant was aware the complainant had called her parents and had then left the home. He accepted the complainant as a witness of truth on the question of whether threats had been made to kill her parents were made. He convicted the appellant of the intimidation charge.

Submissions

Appellant’s submissions

50. Mr Boland, for the appellant, noted that the Court of Appeal is divided on the question of whether it is necessary for the appellant to establish error in the Local Court to succeed on appeal citing Lunney v DPP [2021] NSWCA 186 at [24]. He accepted that that question did not need to be resolved here as error was asserted. The appeal proceeded on the basis that the jurisdiction of the District Court in a conviction appeal under s 11(1) is error-based. I note however that McNab has apparently resolved that issue.

51. In his written submissions Mr Boland, said the appeal was advanced on the basis that; having acquitted of the pillow incident charges, a direction in accordance with R v Markulevski [2001] NSWCCA 290, at [191], should have been given by his Honour, and, if properly applied, must have resulted in an acquittals.

52. He provided a thorough review of the evidence that he said would lead me to conclude that once Magistrate O'Brien accepted that the complainant gave different versions in relation to the pillow incident, his Honour must therefore have implicitly rejected the version she gave in court. This was implicit, he said, because in rejecting her evidence he must have drawn an adverse conclusion about her credibility and believability. Mr Boland submitted that it was therefore clear that by later convicting the appellant based on the complaint’s evidence in an “oath against oath” matter Magistrate O’Brien had failed to engage in any analysis required of him by applying Markulevski v R [2001] NSWCCA 290.

53. Mr Boland submitted that once his Honour found that the complainant had given inconsistent versions of the pillow incident, he had failed to engage in any analysis of the effect of his findings. Those findings, he said, must have impacted on the complainant’s credibility and reliability; given that on the defence case she had wrongly or falsely denied, on oath, giving the first version to the police. He said analysis of this type would ordinarily follow a Markulevski direction, if correctly and carefully applied.

54. Mr Boland’s submitted that as the police Fact Sheet version of the pillow incident was apparently accepted by the magistrate that would mean that the complainant did not see the beginning of the incident. He contrasted that with her evidence in the Local Court. There she said she saw the appellant grab the pillow and hold it towards the child's face. As these incidents could not be reconciled the only logical inference that flows is that his Honour rejected the complainant as a witness of truth. He submitted that these differences were irreconcilable and an error that enlivened the jurisdiction and warranted the intervention of this Court. He submitted that I was now therefore in the same position as the Local Court when it comes to assessing the complainant’s reliability and believability.

55. He said, once I accept that the appellant was acquitted because the Magistrate found the complainant to be unbelievable in her evidence regarding the pillow incident, I would have to direct myself that any doubt formed with respect to one aspect of the complainant’s evidence, ought be considered by me when assessing her overall credibility and believability.

56. Applying that direction, as the Magistrate should have, he submits, must result in my rejecting Magistrate O'Brien's findings in relation to the impression the complainant left on him in the conviction matters the subject of the appeal. His Honour’s conclusions could, accordingly, have no rational bearing on my resolution of the important issues. Without those credibility findings I would be left with evidence on oath from two participants and could not resolve the matter other than by having the reasonable doubt - doubt the Magistrate should have had; had he correctly directed himself.

57. In addition, Mr Boland noted that it was impossible for either his Honour, or myself on appeal, to reject the appellant's version of events, noting that he is a person of good character. He also submitted that the Magistrate’s credibility conclusions did not adequately comply with his duty to provide the parties and an appellate court with the basis of his decision as his judgement shows he was doing no more than asserting that having seen and heard the witnesses he preferred or believed the evidence of the one over the other: citing O’ Connell v DPP [2021] NSWSC1519 at [37].

58. He noted that “self-serving” is an uninformative adjective, as the term could apply to any appellant person who gave evidence. He said scrutiny of the apparent foundations for his Honour’s conclusions could not provide a basis for a suggestion the appellant lacked credibility. He also submitted that his Honour had inverted the rule in Browne v Dunn (1893) 6 R 67, when he considered the appellant’s evidence about the general the practise of a couple when attempting to reconcile after an argument. Something, that had not been properly explored in evidence.

59. Further matters concerning the complainant’s credibility were reiterated. The first being how she dealt with the video footage of her attempt to record the pillow incident. The second; a challenge to Magistrate O'Brien’s findings on the collusion issue. He asked that I find that they complainant had demonstrably misled the court.

60. Mr Boland concluded by submitting that when I reviewed all of the evidence and properly directed myself I would be left with four obvious conclusions:

1. That the relevant events were uncorroborated

2. When I directed myself in accordance with De Silva v The Queen [2019] HCA 48, would at the very least find the appellant’s version might be true.

3. I would conclude that the complainant’s evidence in relation to the pillow incident was unreliable and those findings would carry over to the matters the subject of the appeal.

4. That the appellant‘s denials and good character would be sufficient for me to reject Magistrate’s conclusions as to his credibility.

Accordingly, I would set aside the convictions.

61. In oral submissions Mr Boland illustrated what he said was the complainant’s unreliability by her having given a “different version” of events of the race day event when she made her initial phone call to the police that evening. In a police Computer Aided Dispatch (CAD) report of her initial call to police, the officer recording the call noted that she had complained of being pushed to the “ground.” In her statement and evidence, she said she had been pushed on a “lounge.”

62. Mr Boland submitted that Magistrate O’Brien should have given considerable weight to these “conflicting versions;” similar weight to that given to the earlier different versions about the pillow incident. He submitted that if his Honour had directed himself in accordance with Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1, the prosecution’s failure to call the CAD operator required a conclusion that operator would not have assisted the prosecution case. If the complainant had said “ground” and not “lounge” this was, he said, be another example of her unreliability; and, I could draw the conclusion that the complainant had again given different versions and reject her as a witness of truth.

Director’s submissions

63. Ms Walshe, in response, noted the passages in his Honour’s judgement where she submitted, he had appropriately and correctly directed himself. She noted that the complainant was only a witness to the pillow incident. Magistrate O’Brien’s decisions about that incident also took into account his findings about the child's evidence and the complaint evidence from the child's grandmother. By contrast in the matters the subject of the appeal the complainant had made an immediate complaint supported by a contemporaneous DVEC.

64. Ms Walshe drew my attention to his Honour’s findings as to credibility and his response to matters raised by Mr Boland in the Local Court, where a sustained attack was made on the complainant’s credibility. Those attacks were not ignored but answered in his judgment, where Magistrate O’Brien had clearly stated the law and closely and carefully analysed the evidence of the complainant in relation to both incidents.

65. The Director submits that it not unusual for different verdicts to be returned if reasons for a distinction are available and proper and that here I would be satisfied beyond reasonable doubt the appellant committed the three offences and dismiss the appeal.

Consideration of authorities

66. In Markulevski, the Chief Justice noted that, as with all directions, the precise terminology used is for the trial judge. Those directions must be tailored to all the particular circumstances of the specific case. However, the “crucial matter is to indicate that any doubt that may be formed “with respect to one aspect of the complainant’s evidence, ought be considered when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant’s evidence with respect to other counts.” at [191].

67. Basten JA has noted that the Markulevski direction is not mandatory and may lead to confusion in some circumstances. Where there is more than one count on an indictment, the fact finder is obliged or will be directed to consider each count carefully and separately from the others as occurred in the present case. By directing that a doubt entertained in respect of one count may support a doubt with respect to other counts tends to undermine that other direction: BM v R [2017] NSWCCA 133 at [24].

68. It is generally accepted that a judge or magistrate who observes a critical witness in person in court is better able to make determinations about them as they can observe any flaws or idiosyncrasies in the way they give evidence and their demeanour in the courtroom: see for example R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529 Hamill J, at [46]-[49].

69. Care must be taken; judges and magistrates should not overstate their capacity to make determinations of a witness’s truthfulness based on how they look or present. Lord Atkin’s maxim was quoted in Fox v Percy; “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

70. In most appeals it is preferable, rather than focus on assessment about demeanour, to consider incontrovertible or unchallenged or objectively established facts, contemporary materials, and the apparent logic of events and, only then, seek to evaluate the conflicting testimonial evidence against those matters: see Leeming JA’s summary of the relevant authorities in Hodgson v R [2022] NSWCCA 72 at [94]-[98].

71. However, this in not always possible. In “oath on oath” domestic violence matters as commonly there are few objective measures, most “facts” are challenged, and material evidence is often unavailable.  Resort must then be had to credibility and demeanour findings to resolve conflicting testimonial evidence.

72. The prosecution were criticised by the appellant for failing to call the CAD operator. As a consequence, I was asked to draw a negative inference. Where a witness, who might have been expected to be called to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the appellant. Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27]; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620; Dyers v The Queen {2002] HCA 45; (2002) 210 CLR 285 at 293 [13], 327-328 [120]-[123].

73. Such a direction is not required in all the circumstances where someone might have been called as a prosecution witness. Here, the difference between the CAD report and the complainant’s evidence was such a peripheral issue it could not have had any influence on whether I or the magistrate should entertain a reasonable doubt about the guilt of the appellant.

74. Magistrate O’Brien was clearly alert to the need to not undermine the onus placed on the prosecution and the direction recommended by Brennan J in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507. A Liberato direction has an important role to play in ensuring that there is no diminution in the onus and standard of proof when an appellant person gives a version of events. It is commonly necessary where the prosecution is founded upon the evidence of a single witness to ensure that the ultimate question always remains whether, on consideration of all of the evidence, the jury is satisfied beyond reasonable doubt of the guilt of the appellant: Harper v R [2022] NSWCCA 211 at [147].

“…it is never appropriate for a trial judge to frame the issue for the jury's determination as involving a choice between conflicting prosecution and defence evidence: in a criminal trial the issue is always whether the prosecution has proved the elements of the offence beyond reasonable doubt.”

Where a Liberato direction is given…

“The Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the appellant relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt’

“…it is preferable that a Liberato direction be framed along the following lines:

(1) if you believe the appellant's evidence (if you believe the appellant's account in his or her interview with the police) you must acquit;

(2) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and

(3) if you do not believe the appellant's evidence (if you do not believe the appellant's account in his or her interview with the police) you should put that evidence (account) to one side.

The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the appellant beyond reasonable doubt?” De Silva v The Queen [2019] HCA 48, at [9]-[12].

Determination

75. I do not accept that his Honour rejected the complainant’s evidence in relation to the pillow incident. That is not what he said at [112]; nor did he make adverse findings in relation to her reliability and credibility as a witness. To the contrary, he correctly directed himself that different verdicts could be returned in relation to different counts. And early in his judgment he noted that a reasonable doubt about one part of the prosecution evidence on one charge had to be considered as to whether it caused him to have a reasonable doubt about another charge: at [16].

76. His Honour’s approach to the acquittals indicated that he was aware of the need to give the appellant the benefit of the doubt, even if his version did not impress him. Ultimately, his decision came down to the fundamental element that had to be proved - “intention.” He concluded, “I cannot be satisfied to the required standard that the appellant intentionally placed the pillow over the face of the child with an intention of suffocating her for the purpose of sequence 4.”

77. His Honour, in his pillow incident determination, did the very things the appellant submitted he failed to do in relation to the counts are subject of appeal. It thus is hard to conclude by implication that in the same judgment he correctly applied and then failed to apply relevant and well know principles,

78. His Honour did, in reaching his conclusions about the pillow incident, note the difference between what police recall the complainant initially told them about what had transpired and her evidence to the court. It is obvious that that difference played on his Honour’s mind. He had at [112], described the evidence as being in clear “conflict” on that aspect. He also noted the complainant’s concession the appellant was facing the bed “so he was away from me.” But that is the extent of his Honour’s conclusions regarding the complainant’s credibility in relation to the pillow incident.

79. It seems clear to me that having determined the child witness's evidence did not assist and having considered the appellant’s version and the possibility the complainant (given her concession) had not seen everything that happened because he was between her and the child, his Honour could not be satisfied exactly what had occurred and gave the appellant the benefit of the doubt on the question of his intention.

80. It was not necessary for the Magistrate, when giving the appellant the benefit of the doubt, to make of an adverse finding about the credit and credibility of a witness. If his Honour erred, it was by not drawing together all the factors that left him with a doubt. That error, if there was one, in the separate pillow incident, could not determine the outcome of this appeal.

75. His Honour was aware of the Markulevski direction although he did not cite it or quote it verbatim. Directions must be tailored to all the particular circumstances of the specific case. It would, with hindsight, have been prudent to mention the Markulevski direction specifically when he made his credibility findings about the race day evidence, if only to forestall attack on appeal. Much time would have been saved had his Honour added a 10th issue - Given my findings in acquitting the appellant what impact do those findings have on the credibility of the complainant?

76. I can readily understand why his Honour did not add that issue. He had not formed a doubt with respect to the complainant’s evidence for the pillow incident nor had he made credibility findings about her, when acquitting the appellant. Rather, on the critical issue of the appellant’s intention he gave him the benefit of the doubt.

77. He did not choose between two inconsistent verdicts. He did not base his decision on the apparent rejection of the appellant, whose evidence he described as self-serving. Rather, he could not be satisfied that the pillow was held on the child with intent either choke or deliberately, so recklessly, as to constitute an assault.

78. As he did not make a credibility finding there was nothing to consider when assessing the complainant in relation to the race day incident. He did not acquit because he rejected the complainant as a witness of truth. He acquitted because having properly directed himself, he had a doubt despite his apparent rejection of the appellant as a witness of truth. In other words, he applied to the pillow incident, the very directions the appellant now says he did not properly consider and apply when giving his judgment on charges arising from the race day incident.

79. Accordingly, I do not believe his Honour erred in any appreciable way. A minor and inconsequential difference of approach between the judge on appeal and the magistrate at first instance is not an error justifying intervention on appeal. That finding means the jurisdiction of this court is not enlivened.

80. However, with due defence to the appellant’s submissions, I set out my own conclusions, giving him the full benefit of his acquittals.

81. Having reviewed the evidence about the pillow incident I would have approached the matter in a slightly different fashion. I would not characterise the police Fact Sheet as a different version. I note that a police Fact Sheet summary is based on the police officer’s recollection of what she was told. It is not a statement made directly by a witness and affirmed by then on oath or subject to the jurat that commences every police statement. A difference between such versions does not, in my opinion, reflect poorly on the credibility of the complainant; who gave consistent versions on oath and in a formal statement. I note the credibility rule and the exceptions to it in s103 Evidence Act1995.

82. I note that Magistrate O’Brien gave the benefit of the doubt to the appellant where a witness was giving an impression based upon what they believe they saw from the ensuite, and thought the appellant was doing. I too note the child’s evidence did not assist and would give some limited weight to the appellant’s evidence about his state of mind.

83. Criticism was made of his Honour’s use on several occasions of the term “self-serving” to describe the appellant’s evidence. As I understand it “self-serving” refers to; a form of bias; being the tendency of witnesses to give evidence in ways that advance their self-interest but which the trier of fact, on review, regards as indefensible or unethical or a distortion of what really happened to suit their own ends.

84. Having reviewed the judgment I reject the submission that his Honour simply concluded - that having seen and heard the witnesses he believed the evidence of the one over the other: O’Connell v DPP at [37]. His credibility finding are of use to me.

85. I too was unimpressed by his evidence and would reject it. I too was impressed by the response of the complainant under sustained and ardent cross-examination and the consistency of her accounts. I would accept her testimony. Having rejected the appellant’s account that evidence satisfied each element of the charges subject to appeal beyond reasonable doubt.

86. In doing so I have reviewed all the evidence and applied the relevant directions noted above. I have done so in deference to the submission that his Honour’s failure to convict of the pillow incident charges, given the complainants’ version, necessarily implied an adverse credit and credibility finding against her; and thus required a Markulevski direction when he came to consider the second race day incident.

87. I direct myself again that an appellant has no onus of proof - the prosecution must establish the elements of each count the subject of appeal beyond reasonable doubt.

88. I have asked myself whether the prosecution evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead me to conclude that, even making full allowance for the advantages enjoyed by the magistrate there is a significant possibility that an innocent person has been convicted.

89. I remind myself that if I have a doubt, it is only where the magistrate’s advantage in seeing and hearing the evidence is capable of resolving I may conclude that no miscarriage of justice occurred then the court is bound to act and to set aside a verdict based upon that evidence. I have reviewed all of the evidence. I have reviewed his Honour’s findings on credibility. They appear soundly based for the reasons advanced by his Honour in his judgment.

90. So far as his assessment of the complainant was concerned, he had the advantage of seeing her cross examined. The purpose of cross examination fundamentally is to reveal the truth by testing alternative propositions. His Honour saw the complainant so tested and for the reasons he advanced, believed her. In my opinion, on review, her version was coherent, consistent, contemporaneous and credible.

91. The appellant’s evidence started with an attack on the complainant. He used adjectives such as “aggressive” and “irritable.” He said she was “double parking” her drinks to support his contention she was “quite drunk”. Although not referred to by his Honour these comments did not impress me as a sort of statement a person of good character would make about his long-term partner and mother of his children. To the contrary he started his testimony with an unimpressive attempt to undermine her as person.

92. However, what struck me most about his testimony and his version of events was his attempt to describe how his hand caught in the complainant’s singlet. That evidence struck me at truly self-serving in its accepted sense.

93. Having reviewed all of the evidence I agree with his Honour’s assessment of the appellant’s version of events. It should be rejected, regardless of the otherwise good character of the appellant.

94. Having rejected the appellant and his version of events. I must consider the complainant’s version.

95. As to the appellant’s submission that the complainant’s credibility was damaged because of what was recorded on the CAD form was a different version I would reject it entirely. The words “lounge” and “ground” are sufficiently similar that the most logical explanation for any difference was that the operator misheard. But even accepting the possibility that the operator, if called, would have stuck by what was recorded that word difference could not lead to the questioning of the credibility of the complainant. I note that both her and the appellants’ version was that at no time did the complainant go to the ground but that she both agree was at one stage on the lounge.

96. With deference to the appellants’ complaint his Honour did not refer to Markulevski, I note I have closely considered what she said about the pillow incident. I note that in her statement and evidence she forcefully stated her belief that what she saw was more serious than the Magistrate’s ultimately concluded. Therefore, when assessing her credibility and in deciding whether or not there was a reasonable doubt about her evidence with respect to the race day incidents, I must consider whether there is a possibility she exaggerated or stated what she assumed occurred but did not actually see or experience.

97. My task is then to determine whether er evidence was sufficient in nature and quality to eliminate any reasonable doubt that the appellant is guilty of each offence: Dansie at [7]. While I must be astute and alert to the possibility of error of reasoning in the court below it is not my role to analyse with a fine comb the validity of the explicit reasons of the Magistrate if they appear soundly based in the evidence before him.

98. Rather, I am required to make my own assessment of the evidence. I must ask; can I be satisfied of the guilt of the appellant beyond reasonable doubt, making due allowance for the ability of the Magistrate to assess credibility in a case where all the critical evidence came from both participants in the disputed events, far more readily than an appellate judge reading a transcript.

99. Magistrate O’Brien had the considerable and distinct advantage of having seen and heard the evidence of the complainant and appellant in chief and tested by cross-examination. But even without his credibility findings the prosecution case on the record had considerable and determinative probative force. His Honour’s conclusion reinforced rather than undermined my conviction no miscarriage occurred, and the appellant was properly convicted

100. Having conduct my own independent assessment of the whole of the evidence and applied the necessary directions I am satisfied to beyond reasonable doubt that the appellant was guilty of each of the counts the subject of appeal.

Orders

107. On each matter the appeals against conviction are dismissed.

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Decision last updated: 30 November 2022