de Souza v Director of Public Prosecutions
[2024] ACTSC 330
•25 October 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | de Souza v DPP |
Citation: | [2024] ACTSC 330 |
Hearing Date: | 25 September 2024 |
Decision Date: | 25 October 2024 |
Before: | Baker J |
Decision: | The appeal is dismissed |
Catchwords: | CRIMINAL LAW – appeal from Magistrates Court – family violence offences – whether error in use of character evidence – adequacy of Magistrate’s reasons – Notice of Contention – whether Magistrate erred in finding complainant’s Evidence in Chief Interview (EICI) inadmissible – merit in submission of Director of Public Prosecutions that EICI was admissible – not appropriate to finally determine Notice of Contention – appeal dismissed |
Legislation Cited: | Court Procedure Rules 2006 (ACT), r 5115 Crimes Act 1900 (ACT), ss 28(2)(a), s 116(3) Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 81A, divs 4.3.3, 4.5.2 Magistrates Court Act 1930 (ACT), div 3.10.2, s 208 Royal Commission Criminal Justice Legislation Amendment Act 2018 (ACT) |
Cases Cited: | Acuthan v Coates (1986) 6 NSWLR 472 Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 Devenport v Garnon [2024] ACTSC 198 Director of Public Prosecutions (DPP) (NSW) v Peckham [2022] NSWSC 713 Garay v The Queen (No 3) [2023] ACTCA 2 Heyward v Bishop [2015] ACTCA 58; 73 MVR 426 King v Bishop [2024] ACTSC 114 Liberato v the Queen [1985] HCA 66; 159 CLR 507 Melbourne v R [1999] HCA 32; 198 CLR 1 O’Connell v McMennemin [2014] ACTSC 12 Poidevin v Coutts [2024] ACTSC 91 R v HC [2017] ACTSC 276; 325 FLR 59 R v Murray (1987) 11 NSWLR 12 Rawsthorne v Wilson [2018] ACTSC 342; 342 FLR 134 Wolter v Broomhall [2023] ACTSC 331 |
Texts Cited: | Explanatory Statement to the Royal Commission Criminal Justice Legislation Amendment Bill 2018 (ACT) |
Parties: | Danilo Castro de Souza ( Appellant) Director of Public Prosecutions ( Respondent) |
Representation: | Counsel R Thomas ( Appellant) K McCann ( Respondent) |
| Solicitors I D Stevens ( Appellant) ACT DPP ( Respondent) | |
File Number: | CA 5 of 2024 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 18 December 2023 Case Title: DPP v De Souza Court File Numbers: CAN3473/2023; CAN3474/2023 |
BAKER J:
Outline
1․On 18 December 2023, Danilo Castro de Souza (the appellant) was found guilty by a Magistrate of an aggravated act endangering health (choke, strangle or suffocate) contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (CC2023/3473), and aggravated property damage contrary to s 116(3) of the Crimes Act (CC2023/3474). Both offences were committed against the complainant, who was the appellant’s former partner.
2․By way of Amended Notice of Appeal filed 20 March 2024, the appellant appealed from these convictions. The grounds of appeal particularised in that Amended Notice were as follows:
(a)The learned Magistrate erred by reversing the onus of proof;
(b)The learned Magistrate erred in her application of the law relating to character evidence;
(c)The learned Magistrate’s findings of guilt are against the weight of the evidence;
(d)The learned Magistrate erred in directing herself in relation to the assessment of the Complainant’s evidence;
(e)The learned Magistrate erred by making findings of fact where there was insufficient evidence to permit such findings;
(f)The Appellant was denied a fair trial according to law by reason of his counsel's failure to present his case in accordance with his instructions; and
(g)The finding of guilt constitutes a miscarriage of justice due to the professional incompetence of the Appellant's counsel, such incompetence being the failure to take appropriate instructions and to persecute the Appellant's case by evidence and argument.
3․At the oral hearing of the appeal, Mr Thomas, who appeared as counsel for the appellant refined the above grounds. He informed the Court that grounds (f) and (g) were no longer pressed; that grounds (a) and (b) were no longer separately pressed; and that grounds (c) and (e) should be understood as challenging the adequacy of the Magistrate’s reasons for her findings. Mr Thomas confirmed that he did not contend that there was any error in the legal directions which her Honour gave herself.
4․Following Mr Thomas’ helpful narrowing of the issues in dispute, the grounds of appeal may now be summarised as follows:
(a)The Magistrate erred in her application of the law relating to character evidence; and
(b)The Magistrate’s reasons for accepting the complainant’s evidence beyond reasonable doubt were inadequate.
5․By way of a Notice of Contention, the Director contended that the Magistrate:
… erred in ruling that the complainant’s recorded police interview was not admissible, either as a family violence recorded statement of police interview pursuant to div 4.5.2 of the Evidence (Miscellaneous Provisions) Act1991 (ACT), or as an audiovisual recording of police interview pursuant to div 4.3.3.
6․For the reasons outlined below, the appeal should be dismissed. Although there is force in the Director’s construction of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) as advanced in the Notice of Contention, it is not necessary or appropriate to finally determine the constructional issue that it raises.
Background
The hearing in the Magistrate’s Court
7․The proceedings were heard before the Magistrate over two days, on 6 and 7 December 2023.
The admissibility of the EICI
8․At the outset of the hearing, a question was raised as to the admissibility of the complainant’s EICI. Although the appellant’s lawyer had not objected to the interview, the Magistrate found the recording could not be admitted into evidence as it did not comply with div 4.5.2 and s 81A of the EMP Act. Accordingly, the complainant was called to give evidence oral evidence in the ordinary way.
The complainant’s evidence
9․The complainant gave evidence that she and the appellant had been married for nearly 9 years, and shared a 9-year-old daughter together. The complainant is a member of the Australian Air Force and at the time of the alleged offending, was living with the appellant and their daughter in Defence housing in Gungahlin.
10․The complainant gave evidence that both charges arose from incidents which allegedly occurred on 19 August 2022. On the evening of 19 August 2022, the complainant and the appellant began to argue about a snow camping trip the appellant intended to take their daughter on the following day. The complainant said that she was concerned about the weather and felt it was unsafe to camp. The appellant became angry. The complainant went to her room and locked the door. The appellant ran to her room, screaming and shouting at her, and then forcefully pulled the handle of the door, breaking the lock and opening the door (count 1: aggravated damage property).
11․The complainant gave evidence that she tried to stop the appellant from entering the room, and they began to struggle outside the bedroom. The complainant gave evidence that during this struggle, the appellant forced her against the wall, and then placed both his hands around her throat, squeezing her neck and causing her to have breathing difficulties (count 2: aggravated act endangering health).
12․The complainant gave evidence that the appellant squeezed her neck as hard as he could, and that she feared for her life. In examination in chief, she described the appellant as having:
such a hatred in his eye and he just like - it's like you're going to do someone to cause harm, just very strong and almost like you are just seeing your enemy, kind of thing, the way he screamed while he's doing it. I can feel - I can feel that. Such anger, very angry, very angry.
13․At no point did the complainant consent to the appellant placing his hands around her neck, nor to him breaking though and damaging the door. The complainant accepted that she had not suffered any injuries, and that the appellant had never “physically done that kind of thing before”.
14․The complainant explained why she did not report this incident or attend a hospital. It occurred late on Friday evening and the complainant was concerned about both taking her daughter with her to hospital or leaving her daughter with the appellant. The complainant was also under the impression that she would not receive police assistance unless she had a visible injury. Further, the complainant was concerned that the appellant would take their daughter camping if she upset him further. The complainant was scared that reporting the incident would escalate the situation between herself and the appellant, and was concerned about their daughter.
15․The complainant engaged a family lawyer and spoke to the Domestic Violence Crisis Service (DVCS). The appellant had promised to leave their residence, but continued to delay this.
16․The complainant gave evidence that on 6 April 2023, she had a further argument with the appellant, where he began filming her without her consent. The complainant called the police, and also disclosed what had occurred on 19 August 2022. The complainant described her phone call to police on 6 April 2024 occurring because she was at the “end of the road”. The complainant gave evidence that the appellant’s behaviour had become so controlling and aggressive, she could no longer live with him. The complainant and her daughter stayed in a safe house that evening.
17․In cross-examination, the complainant rejected that she falsified the allegations in order to support her position in the family law proceedings. The complainant agreed she had engaged a family lawyer before 6 April 2022, however when asked by the appellant’s then counsel whether she contacted police purely to obtain a benefit in family law proceedings, the complainant stated:
No, how could I be advantaged as living in the room in the house for everyday that I couldn’t get out, what is the advantage of it? I have to stay in the garage, not can even come inside the house. What is advantage of it, Sir?...
I do not contact the police to take advantage is on my side. I do not – I actually called the police to stop those behaviour towards me, sir, to stop this and – and to stop this – to – to stop living like this. I didn’t even think about what is advantage or, sir.
18․The appellant’s counsel suggested to the complainant that she could not recall the length of choking because it had not happened, to which she responded, “I disagree, sir. I do not look at the watch when he is squeezing my neck.”
The appellant’s evidence
19․The appellant denied that he and the complainant had argued, and that either offence occurred. He gave evidence that on the night of the alleged incidents, he slept on the couch. The following day, on 20th August 2022, despite sleeping in, the family agreed to travel to the snow, with the complainant travelling ahead with their daughter, and the appellant following later in the day so he could organise the camping gear.
20․The appellant also gave evidence that he blocked the complainant’s number in the week leading up to the snow trip, “because she called me too many times and I just need some peace”. He gave evidence that he unblocked it at some stage on 20th August 2022, to call the complainant about reconvening in Jindabyne.
21․The appellant was disparaging of the complainant and attempted to paint her as vindicative and manipulative, stating, “she always nag me about money and I have no time to work”. He accused her of attempting to “intentionally sabotage the camping trip”.
22․The appellant also gave evidence the complainant had consented to him filming her in the past, “so we could go back and review what we spoke. I have recordings of her asking to go back and, ‘Hey, check that conversation’”. When the prosecution suggested to the appellant that he had no such agreement with the complainant, the appellant admitted, “I believe around the time she got a lawyer, she did not agree any more, but because the situation was getting so dense I knew it would go to the Family Court. I needed to protect myself.”
Character witnesses
23․The appellant called two character witnesses. The first, [redacted], had a two-year romantic relationship with the appellant 16 to 17 years ago. She described the appellant as “warm and friendly and supportive” during their “lovely relationship together” and when asked, agreed he was truthful. In cross-examination, [redacted] informed the Court she and the appellant were never married, never had children together and were never involved in any Family Court proceedings to divide property at the conclusion of the relationship.
24․The second character witness, [redacted], had been friends with the appellant for over 20 years. She described the appellant as a “kind person, easy-going, friendly, respectful” and “family-oriented” and agreed he was truthful. In cross-examination, [redacted] confirmed she had never had a romantic relationship with the appellant.
The parties’ submissions in the Magistrates Court
25․The prosecution submitted that the complainant was credible, that she made appropriate concessions and that her recollection of her emotions surrounding the event were “consistent with the truthfulness of her evidence”. The prosecution submitted that the complainant’s decision to report the incident when she did arose from the appellant’s “continuing conduct towards her, the separation having been dragged out” and his persistent filming of her, rather than any desire to gain an advantage in Family Court proceedings or for an AVO. The prosecution submitted this was consistent with the body-worn camera footage from the police attendance on 6 April 2022, which revealed the complainant was visibly distressed.
26․Further, the prosecution submitted that the appellant’s evidence was vague and deflective, that he attempted to suggest the complainant was nagging and deceptive, and he did not make any appropriate concessions.
27․The prosecution also submitted that the character evidence had little probative value in assisting the Magistrate to determine whether the offences had occurred, considering the context of each witness’ relationship with the appellant differed to the complainant’s relationship with the appellant. The prosecution observed that family violence often occurs in private, that the complainant and appellant had been arguing and discussing separation and that the appellant had blocked the complainant’s phone number. In these circumstances, evidence that the appellant was kind, helpful and truthful was of limited weight.
28․Counsel for the appellant submitted that the complainant’s recollection of events was vague, particularly concerning how long the appellant choked her for or the length of the incident. He further submitted that an email from the complainant the day after the incident, where she expressed she did not want her daughter to go camping, was in the style of an announcement, and did not include a statement to the effect of “I have already told you this” or “I repeat”. Counsel for the appellant submitted this suggested that the complainant and the appellant had not argued the previous evening.
29․Counsel for the appellant also submitted that the appellant provided a rational explanation of the evening of 19 August, and the details of the trip to the snow the next day. Counsel for the appellant submitted the appellant made several appropriate concessions, particularly in relation to blocking the complainant’s number, and the status of his relationship with the complainant at the time.
The Magistrate’s decision
30․At the commencement of her decision, the Magistrate directed herself in relation to the onus and standard of proof, consistently with the decisions in Liberato v the Queen [1985] HCA 66; 159 CLR 507 and R v Murray (1987) 11 NSWLR 12.
31․Her Honour accepted the complainant’s explanation for why she had not reported the incident. She noted it was not unusual for family violence victims to not seek police or medical assistance. Her Honour found this delay in reporting, and the complainant’s inability to recall how long the choking lasted did not impact her overall credibility. The Magistrate accepted the complainant’s evidence and found that her evidence about the relevant events was consistent and truthful.
32․Her Honour referred to Penfold J’s judgment in Rawsthorne v Wilson [2018] ACTSC 342; 342 FLR 134 at [58], in which her Honour observed that character evidence may be used in two ways; first, to assess the likelihood of an offence being committed by an accused, and second, to assess the accused’s credibility.
33․The Magistrate found the evidence of the two character witnesses was of limited significance, given the differing circumstances in which the witnesses knew the appellant. Her Honour observed that [redacted]’s relationship with the appellant had been when they were in their early 20s. There were no children involved nor was the relationship acrimonious. Her Honour observed that [redacted]’s relationship with the appellant was not romantic.
34․The Magistrate found that the appellant’s evidence was unsatisfactory, and noted that it was inconsistent with objective evidence including phone records. Her Honour found the appellant was not a witness of truth. Her Honour was satisfied beyond reasonable doubt that the appellant’s evidence should be rejected.
35․Her Honour also rejected the appellant’s contention that the complaints were fabricated by the complainant to gain an advantage in Family Court proceedings, and noted that it was in fact the appellant who had first raised taking the complainant to court, in order to obtain her superannuation.
36․The Magistrate found that the complainant’s evidence was consistent and compelling. Her Honour concluded that the prosecution had proven both charges beyond reasonable doubt and convicted the appellant of both offences.
Jurisdiction
37․The present appeal is governed by div 3.10.2 of the Magistrates Court Act 1930 (ACT) and is an appeal by way of rehearing: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 at [10] – [25]. This requires the court to “determine the correctness of the decision at first instance by undertaking a real review of the evidence and making its own assessment of the facts, while being mindful of the natural limitations of proceeding on the record”: King v Bishop [2024] ACTSC 114 at [7]. The onus is on the appellant to demonstrate a legal, discretionary or factual error: Alexander at [10] – [25].
38․The original Notice of Appeal was filed on 25 January 2024, which was outside of the 28 day time limit for filing appeals from decisions of the Magistrates Court: s 208 of the Magistrates Court Act. However, the respondent noted that the registry had accepted that document for filing, and accepted that in those circumstances, if a grant of leave is necessary, that leave should be granted. The respondent’s counsel also confirmed that no issue was taken with the refinement of the grounds of appeal at the hearing.
Determination
The use of the character evidence
39․As noted at paragraphs [23] and [24] above, in the proceedings below, the appellant adduced evidence from two character witnesses. The appellant’s first refined ground of appeal concerned the Magistrate’s use of this character evidence.
40․It is well-established that character evidence may be used in two ways: first, in “assessing the probability of the accused committing the offence charged”, and second, in “assessing whether the accused should be accepted as having sought to tell the truth in statements he or she has made in or out of court”: Melbourne v R [1999] HCA 32; 198 CLR 1 at [156] (Hayne J); see also at [30] (McHugh J) and at [103] (Kirby J).
41․The appellant acknowledged that the Magistrate had considered the use of the evidence in the first sense, but submitted the Magistrate had failed to take into account the character evidence when assessing the appellant’s credibility. In the alternative, the appellant contended that the Magistrate failed to give sufficient reasons explaining how she had taken into account the evidence of the appellant’s good character when assessing his credibility.
42․The Magistrate made the following findings concerning character:
Two witnesses were called by the defence to give character evidence. The first witness was in a two-year relationship with the defendant, approximately 16 to 17 years ago. She described they had a loving relationship and an amicable separation. The second character witness had known the defendant as a friend since 1999. She has had never been in a romantic relationship with him. She described the defendant's kind, friendly, respectful, responsible, family oriented and truthful. Justice Penfold in Rawsthorne v Wilson [2018] ACTSC 342 states the following -
“In a criminal trial evidence of a defendant's good character may be used by the fact finder in two different ways. Firstly, as a factor affecting the likelihood of the defendant having committed the offence with which he is charged. Or, secondly, in assessing the credibility of any evidence given by the defendant.”
I have taken into account the evidence of the character witnesses, however, I have not given it any significant weight as the circumstances in which the incident occurred are quite different to the circumstances in which the character witnesses knew the defendant.
Although [redacted] was in a relationship with the defendant this was a relationship when the defendant would have been in his early 20's. There were no children involved and it was not an acrimonious relationship. I consider the relationship between the complainant and the defendant was not an amiable one. They had spoken of divorce on and off since 2017 and the defendant would often block his wife's phone number to stop him nagging her.
Taking all these matters into account I do not accept the defendant's evidence that there had not been any argument on Friday night about camping. I find the defendant's evidence lacked credibility and reliability. I do not consider him to be a witness of truth and I reject his evidence. I therefore put his evidence to one side. The question, therefore, remains has the prosecution on the basis of evidence of the complainant proved the defendant's guilt beyond a reasonable doubt?
43․The Magistrate’s reasons were not delivered ex tempore. However, as Taylor J recently observed in Devenport v Garnon [2024] ACTSC 198 at [87]:
Whether delivered immediately at the end of a hearing or with some time for further consideration, the reasons of the Magistrate must be read fairly, as a whole and not painstakingly picked over with an eye overly sensitive to error. Whether ex tempore reasons or reasons after further reflection, the pressures of the Magistrates Court remain.
See similarly Poidevin v Coutts [2024] ACTSC 91 at [100]; Wolter v Broomhall [2023] ACTSC 331 at [63] and Director of Public Prosecutions (DPP) (NSW) v Peckham [2022] NSWSC 713 at [23].
44․As outlined above, the Magistrate summarised the evidence of the character witnesses, and, in doing so, referred to the evidence that the appellant was “truthful”. After doing so, her Honour then correctly set out the relevant principles to be applied to evidence of good character, by reference to the decision of Penfold J in Rawsthorne, which expressly referred to the relevance of good character evidence to an assessment of an accused’s credibility. Finally, her Honour recorded that she had taken “all these matters into account” when assessing the appellant’s credibility.
45․When the reasons are read fairly and as a whole, it is clear that the Magistrate took into account the appellant’s good character when assessing credibility as well as in assessing the likelihood of the appellant committing the offences alleged. This ground of appeal must be dismissed.
Adequacy of the Magistrate’s reasons
46․In the second refined ground of appeal, Mr Thomas contended that the Magistrate’s reasons for finding the charges proved beyond reasonable doubt were inadequate. In particular, he submitted that the Magistrate failed to give adequate reasons concerning the following six matters:
(a)The nearly eight month delay in the complainant reporting the alleged incident to police;
(b)The failure of the complainant to report the alleged incident to any doctor, hospital, police or friends;
(c)The failure of the complainant to inspect her own neck for injuries or bruising, and the otherwise absence of any bruising or injuries;
(d)The fact that the complainant and the appellant did not separate until January 2023;
(e)The failure of the complainant to arrange for the broken lock to be repaired until February 2023; and
(f)Whether the complainant fabricated the allegations to gain an advantage in the Family Court proceedings.
47․Reasons will be adequate where the decision maker’s reasoning process is exposed: Garay v The Queen (No 3) [2023] ACTCA 2 at [138]. Whilst reasons “must articulate the essential ground or grounds on which the decision rests” especially in a summary jurisdiction, they need not be elaborate or lengthy: O’Connell v McMennemin [2014] ACTSC 12 at [77]. As noted above, “the reasons of the Magistrate must be read fairly, as a whole and not painstakingly picked over with an eye overly sensitive to error”: Devenport at [87]. It is the substance, rather than the form, of the Magistrate’s reasons that is important: Heyward v Bishop [2015] ACTCA 58; 73 MVR 426 at [26], citing Acuthan v Coates (1986) 6 NSWLR 472 at 479.
48․In the present case, the Magistrate’s reasons exposed the process by which she concluded that the appellant was guilty of the offences charged. In doing so, her Honour addressed each of the issues which are now raised on behalf of the appellant on the appeal.
49․In particular, in relation to the complainant’s delay in reporting the alleged incident, the Magistrate found it was not uncommon for family violence victims to not seek immediate assistance:
I accept the complainant’s reasons for why she did not report the August incident on the night. It is not unusual in family violence matters that the victim does not immediately seek assistance from the police or seek medical assistance.
50․The Magistrate also accepted the complainant’s reasons for the eight-month delay in reporting the incident:
A number of circumstances had changed by the time the complainant did, in fact, report the incident. Namely, she had engaged family lawyers, she was engaged with DVCS. She knew she did not need an injury before reporting to police. The defendant was not moving out of the house. Defence Housing Australia had told her that they cannot remove the defendant from the house and she was being verbally and emotionally abused by the defendant.
The complainant had also taken steps to arrange temporary accommodation for her and her daughter at a safe house…
51․These findings answer complaints (a) and (b) on this appeal.
52․As to issue (c), the Magistrate noted that the complainant did not recall checking to see if there were any marks on her neck. As Mr Thomas accepted at the oral hearing of the appeal, the absence of any visible injuries was not inconsistent with the complainant’s evidence. There was no need for the Magistrate to address this issue further. The Magistrate held that the complainant's inability to recall the time of the incident or how long she was choked for did not cause her to question her credibility. The Magistrate observed that it is very difficult for a person being choked to say how long it lasted. This finding was also clearly correct.
53․At first instance, the issue of the timing of the complainant’s separation from the appellant (issue (d)) was raised in the context of failing to arrange for the broken lock to be repaired until February 2023 (issue (e)). In this respect, her Honour held:
An invoice for $172.00 dated 28 February 2023 shows work performed to the door describing it as broken and faulty. The complainant states she had arranged with Defence Housing Australia to fix the lock in February 2023. This is consistent with her evidence that she only got the lock fixed after separating from the defendant. This occurred on 26 January 2023 whilst the defendant was in Brazil.
54․Again, it was not necessary for the Magistrate to elaborate further on this finding.
55․As to issue (f), the Magistrate rejected the appellant’s contention that the complainant fabricated the complaints in order to gain an advantage in the Family Court proceedings. Her Honour held:
I have listened to the complainant's Triple 0 call and viewed the body-worn camera footage when police attended. And I do not consider it was her intention on that night to get a family violence order. It is the police who first raised the possibility of getting the family violence order. The complainant responds that her family lawyer had told her to get one but she said she did not want to escalate him.
…
The defendant suggests that the complainant has made these allegations to get an advantage in the Family Court proceedings. Again, I note that the complainant does not immediately make the complaint of the August incident when speaking to police.
Mr Fraser, acting for the defendant, described the complainant reporting the choke as looking like it was an after-thought which if it was, in fact, an after-thought that is inconsistent with the complainant trying to get the defendant arrested that night. In fact, it was the defendant who first raised taking the complainant to court to get her superannuation.
…
I do not consider her allegation was fabricated to get the defendant kicked out of the house or to obtain an advantage in the Family Court proceedings.
56․In short, on a fair reading of the Magistrate’s reasons, it is clear that all of the issues raised by the appellant on appeal were addressed, and rejected, by the Magistrate. More generally, the Magistrate gave reasons for her rejection of the appellant’s version of events (which she considered to lack credibility and reliability), and also gave reasons for her acceptance of the evidence of the complainant beyond reasonable doubt. It follows that the reasons provided by the Magistrate were not inadequate. Accordingly, this ground of appeal must be dismissed.
Conclusion as to the disposition of the appellant’s appeal
57․For the reasons outlined above, the appellant has not established either of the grounds of appeal as refined during the oral hearing.
58․In the refined grounds of appeal, the appellant did not contend that there was any other factual, legal or discretionary error which impugned the Magistrate’s decision. However, for completeness, I record that on a full review of the evidence, and taking into account the advantages of the Magistrate in seeing and hearing the witnesses, I have concluded that the findings of the Magistrate are correct. It follows that the appeal must be dismissed.
The Director’s Notice of Contention
59․In a Notice of Contention filed on 28 May 2024, the Director contended that the Magistrate erred in holding that the complainant’s EICI was not admissible in the proceedings.
60․The Magistrate’s reasons for concluding that the complainant’s EICI was not admissible were as follows:
…I accept that the table 43.2 would seem to suggest that an audiovisual recording or at least an evidence-in-chief recording is available for a complainant of a less serious violent offence. So that would mean any, for example, a person charged with an assault of a stranger with the complainant would be entitled to give an evidence-in-chief recording but would not be entitled to give evidence from a remote room unless they’re a vulnerable witness or any of the other special measures that are available to them under Division 4.3.2 unless there are special – vulnerable adult.
And given that the Act specifically identifies family violence proceedings as having then certain consequences of the types of special measures that are available for that type of offence I think I am confined to the table for the family violence offence proceedings, if it is a family violence offence proceeding, which it is.
Even though it might be offences of themselves, would amount to a less serious violent offence but because there is a particular table for family violence offence proceedings I feel I am compelled to only consider those proceedings in table 43.1. So your answer to your question about whether I can use the Table in 43.2 is, in my view, about it is no I cannot. I have to be guided by 43.1.
… [b]ecause it’s the nature of the offence I have only to look to the family violence table.
61․Table 43.1 of the EMP Act refers to the special measures that are available for family violence offence proceedings. It specifies that div 4.3.3 (which facilitates the admission of an EICI) only applies to such offences where the complainant is a child, or is intellectually impaired.[1] (Table 43.2 of the EMP Act refers to the special measures that are available for “less serious violent offence proceedings”. Table 43.2 specifies that div 4.3.3 (which facilitates the admission of an EICI) applies to all complainants, including adult complainants who are not intellectually impaired.
[1]A Family Violence Recorded Statement may also be admitted in family offence proceedings under div 4.5.2 of the EMP Act, but as the requirements of such statements were not complied with in the present case, those provisions were not enlivened.
62․In other words, her Honour appears to have held that because the offence complained of was a “family violence offence”, the complainant’s EICI could only be admitted if the EICI complied with div 4.5.2 of the EMP Act. As the EICI did not comply with this Division, the Magistrate held that the EICI was not admissible, even though the offending also met the description of a “less serious violent offence” and the EICI met the requirements of div 4.3.3. As noted above, as a result of this ruling, the complainant was called to give evidence in the ordinary way.
63․In the Notice of Contention, the Director contended that the Magistrate’s determination that the EICI was not admissible was contrary to the text and purpose of Chapter 4 of the EMP Act.
64․There is force in the Director’s submission. As Burns J held in R v HC [2017] ACTSC 276; 325 FLR 59 at [17], the EMP Act provides different pathways for the admission of evidence relating to various classes of offences. In particular, the EMP Act creates one pathway to facilitate the admission of evidence in sexual or violent offence proceedings (div 4.3.3), and another pathway that facilitates the admission of evidence in family violence proceedings (div 4.5.2).
65․As in the present case, some offending conduct may fall within the definition of both a family violence offence and a sexual or violent offence (including a “less serious violent offence”): see similarly HC at [55]. There is no indication in the text or policy of the provisions that the pathways should be considered as mutually exclusive of each other. Rather, as Burns J held in HC at [45], where evidence does not satisfy all of the criteria under one pathway, that evidence may still be admitted under the alternative path provided the evidence satisfies all the criteria for admission under the alternative path.
66․Since the decision in HC, the relevant provisions of the EMP Act have been renumbered. Amendments to the EMP Act were also made by the Royal Commission Criminal Justice Legislation Amendment Act 2018 (ACT) (the Amending Act), which included the insertion of the tables at s 43 (in particular, tables 43.1 and 43.2) to which the Magistrate referred. There is no indication that the insertion of these tables were intended to alter the operation of the relevant provisions of the EMP Act. The extrinsic materials to the Amending Act explain that the tabled were intended to reflect the current law, so as to “streamline the overly complex and often repetitive nature of the EMPA, and make the EMPA more accessible for lay people and practitioners alike”: Explanatory Statement to the Royal Commission Criminal Justice Legislation Amendment Bill 2018 (ACT), at p 32.
67․In view of the above, there is merit in the Director’s submission that the Magistrate erred by determining that the complainant’s EICI was inadmissible.
68․However, as I have concluded that the appeal should be dismissed, it is not necessary to finally determine the Director’s Notice of Contention, or the issue of statutory construction that it raises. Further, caution should be exercised in determining this issue for two reasons.
69․First, as noted above, following the Magistrate’s ruling, the complainant gave oral evidence in place of the EICI. This evidence superseded the EICI, and the Director did not invite the Court to consider the EICI in determining the appeal. There may be a question as to whether r 5115 of the Court Procedure Rules 2006 (ACT) (which permits questions to be raised by way of a Notice of Contention) is intended to permit a party to seek judicial determination of an issue which cannot affect the resolution of the appeal.
70․Second, as the appellant did not seek to be heard on the Notice of Contention, the Court did not have the benefit of a contradictor on the question of statutory construction that the Notice of Contention raised.
71․In these circumstances, I will not determine the Notice of Contention, and will confine my consideration of the issues raised to the observations made at [61] – [64] above.
Orders
72․For the reasons outlined above, the appeal is dismissed.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: |
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