DM v The Queen (No. 1)

Case •

[2021] NSWDC 813

•

12 October 2021

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: DM v R (No. 1) [2021] NSWDC 813
Hearing dates: 11-12 October 2021
Date of orders: 12 October 2021
Decision date: 12 October 2021
Jurisdiction:Civil
Before: Neilson DCJ
Decision:

1. Appeal allowed.

2. I set aside the conviction recorded and any sentence passed by Viney LCM sitting in the Burwood Local Court on 15 April 2021

3. I set aside the ADVO made by the Local Court at Burwood on 15 April 2021.

4. Adjourned to 14 October 2021 for the Appellant’s application for costs.

Catchwords:

CRIME – APPEAL – CONVICTION APPEAL – Onus of proof – Allegation that Appellant assaulted son aged 9 years and 8 months – Police relied on evidence of son (unsworn) and his mother and reliable, good character and background of Appellant had to be taken into account on both propensity and guilt.

Legislation Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Crimes (Domestic and Personal Violence) Act2007 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Melbourne v The Queen (1999) 198 CLR 1

R v Murray (1987) 11 NSWLR 12

Texts Cited:

Nil.

Category:Principal judgment
Parties: R – Crown
Appellant – DM
Representation: R – Trajovski of the Office of the Direction of Public Prosecutions (NSW)
Appellant – James, G. QC, Searson
File Number(s): 2020/00238290
Publication restriction: Nil.
 Decision under appeal 
Court or tribunal:
Local Court of New South Wales at Burwood
Jurisdiction:
Civil
Citation:

Nil.

Date of Decision:
15 April 2021
Before:
Viney LCM
File Number(s):
2020/00238290

Judgment

Background

  1. HIS HONOUR: This is an appeal from a conviction recorded by her Honour Alison Viney LCM sitting in the Local Court at Burwood on 15 April 2021.

  2. The Appellant, DM, was charged that on 8 August 2020, at Epping in this State, he did assault WM. WM is the son of DM. The assault is alleged to have occurred in the then family home.

  3. The appellant pleaded not guilty and a contested hearing was conducted on 19 March 2021. Her Honour directed the filing and service of written submissions and that occurred. The written submissions on behalf of the prosecution were over five pages, pp 168 to 172 of Exhibit 1 before me. Counsel for the appellant in the court below, Mr Searson, provided five pages of written submissions as well, bearing date 6 April 2021. Those submissions can be found at pp 163 to 167 of Exhibit 1 before me.

  4. Her Honour gave judgment on 15 April 2021, finding the appellant guilty of common assault upon his own son. Some background is required.

Factual setting

  1. The family was living at unit 7/25 Carlingford Road, Epping, at the relevant time. The appellant and his wife, CF, were married most probably in 2006. In her oral evidence, CF said that she and DM had been married for 14 years. In the electronically recorded interview that the appellant gave to the police he said that they married in either 2006 or 2007 after having known each other for one year.

  2. As at 8 August 2020, DM was 55 years old. His wife, CF, who appears to have used her second given name as her usual first name, was 47 years old. They had three children. Their eldest child, their daughter RM, was aged 12. Their elder son, WM, was born in December 2010, and at the relevant time was nine years and eight months old. Their younger son, OM, was born in October 2012 and at the relevant time was seven years and ten months old. The only other piece of necessary information is that at the time that WM gave evidence in the Local Court he was aged ten years and three months.

  3. At the time that the appellant gave evidence he was a senior lecturer in education at the Notre Dame University. He had, prior to becoming a senior lecturer in education at that University, worked as a schoolteacher for up to 24 years. He gave evidence that he worked as a schoolteacher from 1984 until 1996, then had a break for some period of time when he worked as an opera singer, and then returned to teaching until 2008. I infer from the way the evidence was given that it is likely that he became a lecturer in education at a tertiary institution after 2008.

  4. His work as a schoolteacher included both work at a school where both primary and secondary education was provided, and at schools providing secondary education. One would think that, as a senior lecturer in education, the appellant would have had some extensive knowledge of pedagogy, including the stages of development of a human child during the child’s school years, including the developmental aspects of the growth of the child physically and mentally, that is the intellectual development of the child as the child ages.

  5. The appellant gave oral evidence to the Local Court that in his work as a schoolteacher no complaint had ever been made against him. He came before the Local Court as a man of prior good character, without any conviction, who was entitled to have his prior good character taken into account. He was also entitled to have taken into account his background, which would necessarily have taught him how children mature over time, how children grow up, and how to deal with children, especially when there are a number of them in the classroom, each of a similar age in any one class of primary and secondary schooling.

The events

  1. The incident relied upon by the prosecution occurred on Sunday 8 August 2020 in the family home in Carlingford Road, Epping. No complaint was made to the police until a week later, on Saturday 15 August 2020. The complaint was made by WM’s mother who went to the police station at Eastwood and was eventually interviewed there by Constable Jayden Mounsey, who at the time he made a statement on 5 October 2020 was 24 years old. He is a uniformed police officer. He was working at the time with Constable Renee Hemmens, but there is no statement in evidence from Constable Hemmens, nor did she give any oral evidence.

  2. Constable Mounsey and his partner interviewed CF at about 1pm on 15 August 2020 at the Eastwood Police Station. CF gave a statement. The statement is this:

“3. I was in an intimate Domestic Relationship with [DM] for about 14 years. As a result of this relationship we have 3 kids [RM], [WM], [OM]. We all used to live at U7/25 Carlingford Rd, Epping until Tuesday the 11th  of August 2020.

4. About 7pm on Saturday the 8th of August 2020 I was in the kitchen area of the house sitting at the dining table with my daughter [RM]. [WM] and [OM] were in the living room watching TV. I cannot see the Living area from the kitchen, but I can hear conversations coming from the living area as the apartment is quite small.

5. I saw [DM] walk into the living area. Once he was in the living room, I could not see him anymore, but I heard [DM] say, ‘I’m watching TV with you as well’. A short time later I heard [DM] say, ‘Let it go, Let it go’. I could not see what was happening, but [DM] often snatches the [TV] remote from the kids.

6. I saw [WM] leave the living area and walk towards his room, followed closely by [DM]. A short time [later] I heard [WM] yelling out ‘I don’t feel safe’ ‘leave me alone’.

7. A short time later [WM] came running out to me at the dining table in the kitchen and was saying ‘I don’t feel safe’. [WM] was crying, I tried to ask questions about what had happened, but [WM] ran back to his room as soon as [DM] approached us at the dining table in the kitchen. [DM] followed [WM] back into the bedroom. I remained seated in the kitchen.

8. I heard [WM] crying a lot, so I went to check on him in his room. As I approached the room the door was wide open, and I could see [DM] standing over the bed that [WM] was on. I told [DM] ‘I think you need to leave him alone; he needs some time alone’. [DM] turned around and started yelling at me, I do not remember exactly what was said.

9. I had a conversation with [DM] about leaving the room. [DM] said, ‘I’ll leave the room when you do’. I then left the room and so did [DM]. Everything was calm again and no further incidents happened that night.

10. About 7am on Sunday 9th August 2020. I was in bed and [DM] was in the kitchen. [WM] was in bed with me already because he had had a nightmare. [WM] told me what happened in the room with his father the night before.

11. [WM] said, ‘My neck still hurts’. I said, ‘Why, what happened’. [WM] said, ‘Dad put his elbow on my neck last night and pushed me down in the bed’.

12. I attended Eastwood Police Station on Saturday the 15th of August and provided Police with a signed Statement.”

  1. I should indicate that the last clause of par [5], “but [DM] often snatches the TV remote from the kids”, could only have been adduced as tendency evidence and no tendency notice was ever served. However, in the Crown case, that statement of CF was only marked for identification, but it was later tendered in the defence case without objection.

  2. However, at about 3pm on 15 August 2020 the police attended another address in Epping where they met WM and a family friend whose first name was Sarah. I assume that she was a friend of CF. The child was interviewed by Constable Mounsey, and it was recorded on a mobile phone camera, I assume, by Constable Hemmens. According to the statement of Constable Mounsey, which became Exhibit 1 in the Local Court, Constable Mounsey also spoke with WM’s younger brother OM, but OM told the constable that “he did not see or hear anything”. In other words, there was no corroboration available to WM from his brother OM.

Evidence of WM

  1. The interview with WM could be referred to as a Domestic Violence Evidence in Chief (“DVEC”). There are two transcripts of it, one made by the police and another made by Legal Transcripts Pty Limited at the request of the appellant’s solicitors. Both those documents were before her Honour. She did not formally mark them, but they are contained in the court paper as I have already mentioned. They contain some notations which, as far as I can ascertain, were made on the documents by her Honour.

  2. The document prepared by the defence has the distinct advantage of having the questions numbered, as occurs when a transcript of an ERISP is made. I shall refer to the defence transcript, but import into it notations made on the other transcript which appear to have been made by her Honour.

  3. Early in the interview, Constable Mounsey asked the boy questions designed to ascertain whether he knew the difference between the truth and a lie. He said that he did. He said that a lie was “like when you’re not telling the truth. And telling something that’s not true”. He was asked what happened if somebody tells a lie, and from what her Honour marked on the prosecution transcript she accepted that the boy said “[i]t can affect others”. Constable Mounsey then referred to the importance of only telling the truth in the interview that was to be conducted between WM and him. The boy was perceptive. For example, question 8 contains this:

“P: Alright so. Can you just talk to me about what [1:57] about what we spoke about before in relation to your dad on a Saturday”.

  1. The boy replied that it was not that Saturday but the Saturday prior to the Saturday that the interview was being conducted. WM then told Constable Mounsey that his father “put his elbow on my neck”. He went on to say this:

“WM: He wanted the remote. But me and my brother wanted to watch another channel. Cause like, we were already watching it in peace. And then um, I said me and my brother said, dad please um, can you not snatch it. Then um, just um, this elbow here. *gestures to throat area*”.

  1. Her Honour indicated that she saw the child gesturing towards his throat area. WM then went on to say that that occurred in the bedroom, a bedroom that he shared with his sister and his brother. There appear to have only been two bedrooms, one occupied by DM and his wife and the other occupied by their three children. The child then answered positively to a question that he was watching television with OM, he then answered “mm, mm” to a question containing this:

“P: You’re watching TV with [OM]. And then your dad come in the room…

And then he wanted to… you were already watching TV and he wanted to watch it as well? Is that right?”.

  1. WM then volunteered that his father snatched the TV remote control. He was then asked what happened after that and the boy then said “he put his elbow here”. Again, he demonstrated putting his elbow toward his neck. He was then asked to describe how hard it was against his neck, and he said that on a scale of 1 to 10 it was 6 to 8. He said that it hurt straightaway. When asked if anybody saw what happened, he said he was unsure because he was lying down.

  2. Given the immediacy of WM saying that, following upon the snatching of the TV remote, his father put his elbow on his neck, one could be forgiven for thinking, as clearly Constable Mounsey did, that the placing of the elbow on WM’s neck occurred in the living room where they had been watching television. This evidence was then given:

“P: So that, this happened in the living room was it?

WM: No, that was in our bedroom.

P: In your bedroom, okay so, he grabbed the remote from you in the living room is that right?

WM: Yeah.

P: then, what happened after… How did you get to the bedroom?

WM: I was running to the bedroom.

P: Yep. Why were you running?

WM: Cause I was about to cry…. And he put his elbow here *gestures*”.

  1. WM then gave evidence of having a red mark on his neck. He was asked whether he showed the mark or marks to anybody, and he said that he did not. He was then asked how long his father’s elbow was on is neck and he said “[f]or three to six seconds”. WM said that he said to his father “stop” and that, after that, his father did so. The time lapse, he thought, between his saying “stop” and the cessation of the pressure was some two seconds.

  2. When asked what happened after that, WM said “he was going to tell mum that. It wasn’t good for me to just cry”. He then volunteered that, nevertheless, he did cry. The boy was then asked by Constable Mounsey whether he told anybody what happened on that day. He said that he did not. He then was asked whether he told his mother what had happened on the following day, and whether he told anybody else about it. This evidence was then given:

“WM: No… I just tell my friends that I was having some family difficulties.

P: What about mum?

WM: I told her. After that.

P: When did you tell mum?

WM: Straight after.

P: Straight after it happened? Or the next day.

WM: Straight after it happened.

P: And what did you say to mum.

WM: Like he put his *gestures to his own right elbow* [6:16]…. Well I didn’t specifically say that he put his elbow on here *gestures to his throat area*… I just said that he hurt me.

P: That he hurt you, yeah, and how does it make you feel when these sorts of things happen?

WM: Like sad *cries*, cause like he’s my father.

P: Okay, is there anything else that we’ve missed? Anything else you want to tell me about?

WM: Like sad *cries*, cause like he’s my father.”

  1. That effectively was the end of the DVEC. One will note immediately some discrepancies according to the statement of the mother. In par [6] she saw WM leave the living area and walk towards his room, not running towards his room. According to the mother she was not told what had happened until 7am on Sunday 9 August 2020, but according to WM he told his mother “straight away”.

  2. WM gave evidence in the Local Court. He gave unsworn evidence. He gave further evidence of knowing the difference between the truth and a lie. He said that if you tell a lie there can be bad consequences. Included in a bad consequence was that if you played games during class you could get into trouble with your teacher. Despite WM appearing to know the difference between telling the truth and telling an untruth, her Honour did not require him to make oath or affirmation but preferred that he give an unworn statement of evidence because of his “age”. Whether that was the proper way to proceed in the circumstances is not the subject of any complaint from the appellant. Her Honour did not ask WM to make an oath or affirmation but merely asked him to make a promise to tell the truth. He did so.

  3. His DVEC was then played to the Court. The prosecutor, Sergeant Kwong, then asked WM whether everything that he told the police in that interview was the truth. Despite an objection by Mr Searson on behalf of the appellant, the witness answered “yes” to that question, and the answer was not struck from the record. Mr Searson then commenced cross-examination. At transcript p 32 line 9, this question and answer was given:

“Q. ...what happened after he took the remote control that he put his elbow here or did something else happen in between?

A. So after that I ran to my room.

Q. Right, so you ran to your room, yes?

A. Then I went on my bed.

Q. Yes?

A. Then, and then he put his point on the elbow of my neck.”

  1. One might be forgiven for thinking that, at this stage, WM is still maintaining that the remote control was snatched from him by his father in the living room where he, and his brother OM, had been watching television, and that he then ran to his room where his father applied his elbow to the boy’s neck. The boy was then asked which elbow his father used and he was unable to remember. This evidence was then given:

“Q. ... Now can you tell me what position that your body was in when your dad put, when you say that your dad put his elbow on your neck?

A. I was lying down on my bed and he pushed, he, he pushed me down and then he put his elbow on my neck, neck.”

  1. Photos were then shown to the boy to indicate which was his bed in the bedroom. Questions were then asked as to what his position was on the bed. He said that he was lying down “kind of sideways”, and he is facing toward the “middle of, the window” which means that he was facing away from the door and presumably facing away from his father who had followed him into the room.

  2. This evidence was then given:

“Q. How long after your dad pushed you, you say your dad pushed on the bed, you say your dad put his elbow on your neck?

A. Like straight away.”

  1. He then was asked whether the father said anything and WM replied that his father said a few things “but I can’t really remember.” He said that his father “called me a few things” but he did not at that stage say what it was that his father called him. When pressed, he could recall his father saying that he was a brat.

  2. The evidence of WM continued in this fashion:

“Q. The police officer said ‘so he grabbed a remote from you in the living room. Is that right?’ and you said there ‘Yeah’ and the police officer said ‘And then what happened after that? How did you get into the bedroom?’ and you said ‘I was running to the bedroom’. You were asked “Why were you running to the bedroom?’ and you said ‘Because I was about to cry’ and then you said ‘And he put his elbow here’. Do you remember saying that?

A. Yes.

Q. So when you told the police after they’ve asked you twice or two times ‘What happened after he took the remote control?’ you said that ‘He put his elbow here’. Do you think that that was important to tell the police that your dad had put his elbow on your neck?

A. Yes.

Q. And why did you think it was important?

A. I think it was important because like he hurt me.

Q. Did someone before the record of interview tell you that it was important to tell the police that?

A. No.

Q. ...You were asked a question about whether or not you had any injuries and you said you had some red marks to your neck. Do you remember saying that?

A. Yes.”

  1. In answer the witness then volunteered “a bit”, meaning a slight red mark or a small red mark. He then had his attention drawn to the fact that he said that he was not bleeding, it was just red, and he said that he saw him saying that himself on the DVEC. The evidence then continued in this fashion:

“Q. Okay, how did you know that you had red marks on your neck?

A. Cause I looked down.

Q. You looked down and you could see them, is that right?

A. It wasn’t too much red though there was--

Q. Not too much of it? Okay, so it’s not as though you looked at the mirror, in the mirror and saw them?

A. Mm-hmm.

Q. It’s not as though you looked in the mirror and saw red marks on your neck. You’re not telling the court that, are you?

A. No. I didn’t look in the mirror.”

  1. I leave out a few unresponsive lines and continue:

“Q. [WM], do you agree with me that you can’t actually see any red marks on your neck when you look down?

A. You see here.

Q. So you can see your chest. That’s right, isn’t it, you can see your chest but you can’t see your neck, can you?

A. Well--

Q. Perhaps if you could look at me, just look at the screen [WM]. Don’t look at the other people in the room [remote witness room]. Do you agree with me that you can’t actually see your neck when you look down?

A. Yes.

Q. Okay, see would you agree with me that on the day you didn’t see any red marks on your neck? That’s the truth, isn’t it?

A. Yes.

Q. Why did you think that you needed to tell the police that there were red marks on your neck if that wasn’t the truth?

A. Well I couldn’t see it but I could feel it.”

  1. One can accept that a person might see a red mark. One cannot accept that one could “feel a red mark”. One could feel something, how would one know if it was red, black or blue? How would one know that it was a colour as distinct from some other lesion on the part of the body in question? The answer makes no sense at all. At this stage, I interpolate that when I looked at the DVEC initially the boy indicated an area about two centimetres or an inch behind the tip of his chin, or below the tip of his chin. He then, in other gestures, indicated the area of the Adam’s apple and, at other times, other areas in between the area close to the tip of his chin and the Adam’s apple. There was no consistency whatever in the place to which he was pointing, and it then transpires that he did not see any red mark at all, that he only “felt it".

  2. It appears from the transcript that at that stage WM became upset. It has been submitted by the appellant’s lawyers that what had happened is that the boy had been caught out telling an untruth, and he was upset that a “hole” should have been established in his case. In any event, he clearly was upset and asked for a five minute break which was given to him. There was then, in his absence, an interchange between counsel and her Honour in which counsel was beside himself to point out that he had no intention at all to cause any upset or hurt to the witness, and her Honour appears to have accepted that.

  3. Further, it must be recalled that there was no suggestion in the mother’s statement to the police that he showed her, or that she saw any red mark upon any part of his neck. After the break, this evidence was given:

“Q. Now did your dad take the remote control off you when you were in the living room?

A. Yes.

Q. Did he change the channel?

A. I couldn’t, I couldn’t see because I was running to my room.

Q. Did you see your dad put the remote control down?

A. No.

Q. You see isn’t it the truth that after your dad put the remote control down that you picked it up and ran into your room with it? Isn’t that the truth? You’re nodding your head, so is that a yes?

A. Yes.

Q. So when you were on your bed did you have the remote control in your back pocket?

A. I think it was front.

Q. I’m sorry?

A. I think it was front.

Q. It was front, okay. When you were in your room isn’t it the case that your dad - no, I’ll withdraw that. I won’t ask you that question. When you were in your room and… with the remote control and when your dad came into the room you would’ve known that he wanted the remote control. Is that right? You would’ve known that that’s what he wanted?

A. Yeah.

Q. And you at that stage didn’t want him to get the remote control? You didn’t want him to take the remote control off you. Do you agree with that?

A. Yes.

Q. Okay, and so is it the case that you were positioning your body on the bed so that he couldn’t get the remote control?

A. No.

Q. Is it the case that you might have been squirming around a bit to make sure that he couldn’t get the remote control?

A. No.

Q. No? Isn’t it the truth that when your dad reached for the remote control you were struggling and it was because you were struggling that your body came in contact with your dad’s? That’s the truth, isn’t it?

A. No. I, I think he purposely put his elbow on my neck.

Q. Well what I’m saying is that the truth is that he simply took the remote control out your back pocket. That’s the truth, isn’t it?

A. No.

Q. No? Okay, did you take a long time to answer that question because the truth is that your dad only took the remote control out of your back pocket?

A. I think he purposely put his elbow on my neck.

Q. Now when you say that your dad pushed you on the bed you didn’t tell the police that when they came and spoke to you. Is that because it didn’t happen?

A. It happened”.

SEARSON: Excuse me, your Honour. I’ll withdraw my questions in relation to the back pocket.

Q. Isn’t it the case that your dad reached in and took the remote control from your front pocket?

A. I, I, I, I think he put his elbow on my neck on purpose”.

  1. Of course, that last answer does not answer the question which was asked. However, the last piece of evidence that I have quoted clearly shows this. The witness agreed that his father took the remote from him in the television room. It was then used and then it was taken into the possession of WM by WM. He then left the living room and took the remote control with him into his own bedroom. He was followed by his father. The father sought to take the remote control from him. Leaving aside whether the remote control was in the back pocket or the front pocket, the point of the questioning was that the father was seeking to recover the remote control from whichever pocket it was that WM had placed it in.

  2. In order to avoid answering those questions, the child adopted the position that what the appellant did, according to WM, placing his elbow on the child’s neck, was done by the father “on purpose” or “purposely”. That is not anything that WM , or any witness, could validly say. What he was saying is that the father acted deliberately, that is, saying what was in the mind of his father, the actor, at the time he is alleged to have performed an act. The child was trying to say that the father was acting deliberately. How could the child know that? He could not.

  3. However, it may represent an opinion. One can ascertain one’s intention by looking at what a person did. I have been instructing juries that the question of intention arises if I were to pick up a hammer and hold it over my Associate’s head, and I were to bring it down with force on his head. In that situation, it might be thought that I was purposely trying to injure him by bringing the hammer down on his head.

  4. In so far as what WM was saying is his opinion of what his father was doing, that opinion carries no validity whatever without the witness telling the Court what it was that caused him to form the view that his father was acting deliberately or on purpose. However, no such explanation was ever given. No attempt was made by the prosecutor to ascertain what the child meant by saying that he thought his father purposely put his elbow on the boy’s neck. Furthermore, with the utmost respect to the child, it would appear that this concept of the father’s acting purposefully was in order to obviate answering questions that the child did not want to answer.

The wife

  1. The next witness called in the prosecution case was the boy’s mother, the wife of the appellant, CF. Early in her evidence-in-chief she said this:

“I was sitting at the kitchen table with my daughter, [RM]. We were trying to have dinner. In the living room there was [WM] and [OM] about to watch TV. They were going to watch Star Wars. Then [DM] came and said ‘I am watching TV as well’ and straight away I heard him saying ‘Let it go. Let it go’.”

  1. She then said that the person she heard saying the words “let it go” was her husband, DM. She was asked by the prosecutor to continue her evidence. She went on to say this:

“So [DM] was saying ‘Let it go, let it go’ to [WM] and then I saw them fighting for the remote control.”

  1. I point out that according to her statement made on 15 August 2020, she could not see what was happening. She also did not say that when she heard DM saying the words ‘Let it go, let it go’, and that they were said to WM. If she could only hear the words said then how could she know whether they were said to WM or to OM? The statement that she saw them “fighting for the remote control” cannot be true if she told the police the truth on 15 August 2020.

  2. She went on to volunteer to the prosecutor that the appellant was “trying to grab the remote control from WM.” She then said that she saw him put his arms up and what was indicated by the prosecutor was that she was indicating a bear hug motion. She said that that was occurring “hard”, meaning, I assume, forcefully.

  3. She went on to say this in answer to a question from her Honour:

“[DM] did this to [WM] trying to grab the remote control. [WM] was facing like this trying to get the remote control but straight away [WM] went for the room.”

  1. If her statement be believed, then that is something she could not possibly have seen. She then went on to say that WM went to his bedroom and she could hear WM “crying a lot”, and then volunteered that she forgot to mention that WM ran to his room and that he was followed closely by DM, who was chasing him. I again point out that, according to her statement, she said that WM walked towards the bedroom, not that he ran. She said that she could hear crying a lot, and she could hear him saying “I don’t feel safe. Leave me alone.” However, that is not contained in her statement.

  2. She was then asked what happened next and she said this:

“Then [WM] came quickly to the kitchen crying a lot. He was very badly stressed. He was like even shaking his hands and saying ‘I don’t feel safe. I don’t feel safe’. He was very unsettled, very upset. [DM] came as well chasing him to the kitchen and as soon as [DM] came to the kitchen [WM] run back to his room. He didn’t want to be with [DM].”

  1. Of course, the sentence purports to be what was in DM’s mind and was strictly inadmissible. It may be an opinion she formed from what she saw, but she should not have expressed it in the way that she did.

  2. She was then asked by the prosecutor what then happened. She then said this:

“[WM] went to his room. He was still crying. [DM] chased him again. I was still with my daughter trying to have dinner because I know that if I interfere with [DM] he would be very angry.”

  1. The last statement drew the obvious objection. The witness was trying to say that she knew that the appellant had a tendency to become angry if she interfered in his relationship with his son. No tendency notice had been served.

  2. There was then argument between Mr Searson and her Honour and her Honour appears to have indicated that the witness should give direct evidence of what she saw and observed and heard. In other words, she was telling the witness inferentially not to provide any opinion evidence. However, her Honour did not strike the offending remark from the record nor did she tell counsel for the appellant that she would give the statement no credence whatever or, as is often said, no weight at all.

  3. Again, the prosecutor asked CF what happened next and her evidence continued in this fashion:

“So I was saying that [WM] went to his room, [DM] chased him and [WM] began to cry even louder and more distressed. So I got worried about what was happening in his room and I went quickly to his room to see what happened. Crying was very distress for [WM]. The door was completely open and wide, so wide. [DM] was on top of [WM]. [WM] was lying down in the bed crying, facing up, and [DM] was very close to [WM]’s face yelling and he said at least three things when I got there. He said ‘You are a bully’. He said, yeah, ‘You are a spoiled brat’. ‘You are a pushy’ and he was yelling this to [WM] very close to his face while he was crying and lying down in the bed... Well I finally said to [DM] ‘I think [WM] needs some time alone’. [DM] became even more angry and he came to my face, super close to my face and he started yelling. He’s an opera singer. He used to sing in the opera. Can you imagine how loud he was yelling to me that my ears were very painful.”

  1. There was then a further interruption in the flow of the evidence but it went on to continue with the prosecutor asking CF what the Appellant said to her. She volunteered this:

“He was so scary that my mind went blank. I don’t remember what was said in those..(not transcribable).. I really don’t remember, because he was so close to my face..(not transcribable).. very scared at what he was going to do next.”

  1. She went on to say that she told the Appellant that WM needed some time alone, and that the Appellant said that he would not leave the child alone until she went away herself. A little later in her evidence-in-chief, she volunteered this:

“So I need to tell you about midnight. We went to bed, everyone to their own bed but at midnight [WM] entered to the room yelling, very scared, and ‘Mum, mum’ and he jumped to me in the bed and said ‘I’m very scared’. So I just hold him and we went to sleep together. In the morning when I, we wake up there [DM] was not in the bed anymore... He was in the kitchen. [DM] or when I woke up he was not there. I heard him doing noise in the kitchen but [WM] and I were still together. So [WM] told me that ‘Last night I had a nightmare. It was a big monster trying to hurt me. Do you think that monster is dad?’ I said to him ‘I don’t know. Tell me how do you feel?’ And then [WM] told me ‘Well my neck here hurts’. So I ask him ‘Why? Why your neck hurt?’ And then [WM] was began to tell me ‘Last night when you were in the kitchen and I went into the room crying dad pushed me down in the bed’ and he pointed, he did this ‘Mum, with this part of his elbow with this point he put it right here and pushed me down and I couldn’t breathe’.”

  1. This is a much more vivid, lurid account of what happened compared with what is contained in the statement which she made to police on 15 August 2020. This was evidence that CF was giving on 19 March 2021. Common sense and common experience indicates that what was said on 20 August 2020 was more likely to be accurate than what was said on 19 March 2021. Furthermore, there is much that the mother said that was not said by the complainant WM at all.

  2. In cross-examination there was what can only be described as hyperbole coming from CF. In answer to a question as to what the witness was trying to persuade the Court had occurred, CF said this:

“I want you to believe what happened. Yes. It was very quickly but that is not my main point here. My main point is that [DM] did the elbow and tried to choke [WM] fighting for the remote control”.

  1. There is no suggestion from WM at all that any attempt was made by the Appellant to choke him. There was no suggestion made by CF in her statement to the police of her believing at any time that there was any attempt to “choke” the boy by his father. This can only be blatant hyperbole. A little later, she again said that she thought she could remember seeing DM and WM “fighting very quickly about the remote control in the living area before going to the bedroom”. On what she said in her statement she did not see that at all. Perhaps not unsurprisingly, after this evidence an intervening question was given:

“Q. Would you agree with me your memory hasn’t got any better from when you provided you statement to police on 15 August?

A. I think I am in a better mental health situation now after two years of living on the emotional and aggressive abusive with [DM]”.

  1. In other words since the separation of the couple on 11 August 2020, she had formed the view that her husband had become emotionally and abusively aggressive towards not only her but to the children. Further, in cross-examination, she did admit that she didn’t say in her statement that the Appellant said to him that he was a bully or a spoiled brat or any words of a similar nature.

  2. On p 53 of the transcript, she gave evidence which in fact impugned the assistance which the police sought to give her on 15 August 2020. She was taken to para 8 of her statement. This question was put:

“Q. Do I take it that you would tell the Court that as of 15 August you were certain that [DM] got up and into your face and came super close to your face and that he was yelling so loudly at you that your ears were painful?

A. Yes, that’s correct. Absolutely correct.

Q. Would you agree with me that that’s also not in your statement of 15 August?

A. I said that to the police. I even explained them that he’s an opera singer, that he has a loud voice. I don’t know why they didn’t include it. That is not under my control.

Q. It’s not under your control? You didn’t say that to the police --

A. I, but I said, I said that to the police. I said that to the police”.

  1. She then went on to say that she wanted the police to include in the statement all the abuse that the Appellant had given to her for the preceding two years and they told her that couldn’t put any such material into the statement.

  2. Later in evidence when CF referred to the evidence that she had given about the discussion she had with WM at about 7am on Sunday 9 August 2020, she was asked whether she took her son to the doctor. She said that she did not do that “because we’re very scared of DM”. She did not know, and she could not explain, why it was that being so scared of DM would prevent her taking her son to the doctor. Of course, that is not all the evidence that she gave but it is enough for me to point this out if I may be so bold to say so. The evidence of CF given on 19 March 2021 is quite inconsistent with her statement of 20 August 2020, and compared to that statement, one could describe the evidence that she gave on 19 March 2021 as dripping in venom towards the Appellant. No weight in my view could be given to her evidence and nothing that she said in oral evidence could corroborate in any way what the complainant WM had told the Court.

Evidence of the Appellant

  1. The other evidence in the Local Court was that given by the Appellant. The evidence-in-chief of the Appellant consisted essentially in his explaining his background to the Court and adopting what he said in his record of interview with police, a transcript of which was Exhibit 2 in the Local Court. I understand that the disc was also tendered and should probably be seen as part of Exhibit 2, and I have watched the extract from the film which was also watched by the Magistrate to indicate how the Appellant said he removed the remote control from DM. Just to reiterate, that was the extract between 19:37:02 to 19:38:10, that is referred to on p 16 of the transcript of evidence on 19 March 2021 at line 16. The only additional evidence given in chief was about what happened when CF first came to WM’s room after the initial interaction between WM and the Appellant. The Appellant said this:

“...I was seated talking to [WM] and my wife came to the door and I asked her to let me talk to [WM] and she then said, she told me to leave and I replied to her that - no, but she said he needed to be alone and told me to leave and I said ‘Well he won’t be alone unless we both go’... So when I first went into the room I reminded him that he had agreed to let us watch a particular program if we let him watch his program first. I reminded him of commitments. I asked him for the remote control”.

  1. Essentially, to cut to the quick, the Appellant’s position was that there was a contest between watching two different episodes of Star Wars. WM wanted to watch one and OM another. According to the Appellant, an agreement was reached that WM could watch his show first and then OM and his father would watch the episode that OM wished to watch. His evidence continued in this fashion:

“The agreement was he would let his brother and I watch a Star Wars program if we let, if we agreed that he watch his first because he was insisting”.

  1. The episode which WM was watching was “at least a couple of hours” in length. The witness then said that he asked WM to give him the remote control. He said to his elder son:

“[WM], you agreed to let me watch the episode with [OM] if we let you watch it earlier”.

  1. By the word “it” I assume the Appellant meant the episode that WM wanted to watch. The Appellant said that he took the remote control. He did not know if he took it from anyone or if he took it from anyone at all, or whether he just picked it up. He said that once he had the remote control, he used it and put it down and then WM took it. He said that WM then went to his room. The Appellant said that he followed him to his room and reminded him of the agreement that had been struck earlier. This, I should say, was in cross-examination. The witness admitted that in the “remote control incident” that WM pushed him on the hands. He said he pushed him by moving around. He thought that the boy was using his hips to push against him as we was reaching for the remote control. Assuming that the remote control was in one of the pockets of WM’s pants, either a front pocket or back pocket, one can understand that the child might move his hips in order to try to prevent his father from taking the remote control from him.

  2. The witness was cross-examined about why it was necessary to remove the remote control from WM and he pointed out that the remote control is something used constantly by those using a television program, if only, for example, sometimes to turn up or turn down the volume or to check something or to replay something. I do not see anything untoward in the Appellant’s seeking to retrieve the remote control from WM to return it to the television room so that if it was necessary to adjust the television in any fashion that could be readily done with the remote control. A remote control in another room is of no assistance to those watching television. The witness’s position was that he was asking for the remote control, but the boy would not give it back to him voluntarily.

  3. DM could remember WM smiling “being pleased with himself, as if it was a game”. He said that he was not expecting resistance from WM but he was met with resistance. He was asked whether the resistance that WM gave was to prevent him, that is, DM, from taking the remote control back and, as DM pointed out, he was unable to guess what was in his child’s mind, a proper answer to such a question.

  4. DM went on to say that when he asked WM to give back the remote control and when he did not, after a few fair and reasonable requests, he was pushing and shoving DM, and was seeking to retrieve the remote control. This question and answer were given:

“Q. So when you said pushing and shoving you, you maintain what you said before? He was pushing and shoving you with his hips on your hand. Is that correct?

A. That’s what I remember.”

  1. He agreed that the actions of pushing and shoving made by WM were showing resistance to what he wanted and defiance. When asked whether he accepted that he had used some force to take control of the remote control, DM said that he could not see any other way in which he could do so.

  2. The witness had his attention drawn to question 48, and his answer to it in the ERISP. The question was this:

“Q. … you tell police ‘Well when you say start, it’s been going on for about 12, two years, the same sort of thing’. You told that to the police. What do you mean about, what does the same sort of thing mean?”

  1. Their question was objected to and their witness left the courtroom in order for the objection to be dealt with. From my reading of the ERISP, the “12” was a reference to 12 months but the witness interrupted himself from completing the words “12 months” by leaving out the word “months” and instead changing it to two years rather than the one year indicated by 12 months.

  2. It was a reference to ongoing disharmony caused by different parental attitudes towards the way in which the children were to be reared, bought up, or disciplined, depending on which way one seeks to look at it. It was objected to on the basis that it related to tendency evidence. The prosecution put that it went to the mindset of the Appellant as to the same thing happening with him in the past. Her Honour did not accept that it was tendency evidence and allowed the question. This question, and the following questions and answers, then were put:

“Q. In the record of interview with police you told police ‘But my’, this is in relation to getting the remote back from [WM], you say to police ‘But my action was very directed to get the pocket and get it back to his brother’ and the police then respond or ask you further ‘Okay and the assault, so has it started out in the living room?’ In response to that you say to police ‘Well when you say start, it’s been going on for about 12, two years, the same sort of thing’. What do you mean by ‘the same sort of thing’ in that context?

A. The children screaming and kicking so their mother would come and let them off whatever they were doing.

Q. And the children as in all the children?

A. [OM] and [WM].

Q. [OM] and [WM], okay. When you say their mother come and let them off, let them off from what?

A. My authority.”

  1. There was then discussion between the prosecutor and her Honour directed to the length of the cross-examination. The evidence continued in this fashion:

“Q. The proposition was that your interpretation how [WM] was behaving by taking the remote, going to his room, okay? His actions in doing that was it from your understanding his attempt, [WM]’s attempt to ‘get off’, get his mum to get him off away from your authority? Do you accept that?

A. It’s not the only thing.

Q. Well what other thing?

A. Is he wanted what he wanted.

Q. Right.

A. So he wanted to use his mother to get what he wanted.

Q. Right, okay and that is frustrating to you, yes?

A. It’s disappointing, yeah.

Q. But you agree that is frustrating for you?

A. Not after two years, no.”

  1. One can look at that evidence in a much more positive light than was put by the prosecutor. He is a man who is seeking to bring up his children, to educate them to behave correctly in society, and to behave in an upright, orderly, gentlemanly manner. He seeks to point out to the boys how they should behave. The boys turned to their mother to escape what they believe to be unnecessary interference with the pursuit of their own will. The fact that that may have been going on for two years, and this is the only time anything ever went amiss, is more consistent with the Appellant’s position than with the position adopted by the Crown. In other words, what it shows is that the Appellant was a patient man in dealing with his sons.

  2. Much was made both in the Court below and on appeal about the Appellant using the words “traumatise” with reference to his son, the complainant. This evidence was given on pages 73 and 74 of the transcript. At the end of what I’m about to quote, the cross-examination of the Appellant ended and there was no re-examination:

“Q. You told police that [WM] was quite traumatised because it was apparent to you that [WM] was quite traumatised after you took the remote control from him? Yes or no?

A. After I told him that I, that my, his mother and I would tell his teacher and ask his teacher whether the same thing was happening at school. He was not traumatised by taking the remote. He was traumatised by the mention of his teacher.

Q. Right, so what did you say to the teacher? Sorry, what did you tell [WM] specifically about his teacher? What did you specifically say?

A. Words to the effect of his mother and I would have to speak to his teacher about whether he was refusing requests at school from, from teachers.

…

Q. I put it to you that you were more than disappointed at [WM] that day. You were quite frustrated at how he was behaving. What do you say to that?

A. No.

Q. I put it to you that when [WM] took the remote control and started going to his room or did went into his room you were very angry at him at this point, yes?

A. Not at all.

Q. I put it to you that when you went into the room, okay, not only did you physically take the remote control away from [WM] you also wanted to exact some physical punishment on him, didn’t you?

A. Not at all.

Q. And that’s exactly what you did. You put your elbow into your son’s throat. That’s what you did. You deliberately did that to punish him, didn’t you?

A. Not at all.

Q. You were punishing him because he was defying your authority and it has come he has been doing that for two year and you didn’t want to take it anymore. What do you say to that?

A. Not at all.

Q. And instead of talking to him you physically put your elbow into your son’s neck?
A. I’ve stated that I spoke to him.”

  1. I am assisted by what the Magistrate said. There are a number of problems with the complainant’s evidence. The first is that he told the police that his father snatched the remote control from him in the television room leading him to leave the television room because he was about to cry. Only in cross-examination did it transpire that WM had admitted that he took the remote control with him into his bedroom and that he was followed by his father who was seeking to retrieve the remote control. He was not leaving the television room to try to prevent his father seeing him crying but rather he was leaving the television room to remove the remote control from the control of both his father and his younger brother, an act of defiance, an act designed to inconvenience them. That is the first inconsistency. In my view, it is significant.

  2. The next inconsistency is the question of where WM was struck in the neck by the Appellant. The next inconsistency was as to whether he could see any mark. No mark was ever seen by anybody. Furthermore, when pressed as to the fact that he couldn’t see a mark essentially under his chin, on his throat, he tried to say that the mark was on his chest but clearly that was unacceptable because of everything that had been said in the past on that very subject.

  3. Another question which is not addressed directly so far in the evidence is the question of implausibility. He is a 55 year old man who is alleged to have brought down his elbow and struck his nine year old, four months short of his tenth birthday, in a vulnerable part of the body, the neck. It is clear from what was demonstrated by the Appellant that he was alleging that it was the olecranon, the point of the elbow, that was being brought down onto his neck. That could do substantial damage yet no damage has ever been demonstrated. Furthermore, in the ERISP the appellant told the police that his son was very prone to developing bruises. Commencing at question 243, this was said:

“Q. Did you notice any injuries on [WM]?

A. So, [WM] bruises very easily, we’ve discussed this at the school. Um, ah, so, um, he certainly would not, um, I certainly didn’t notice any bruises, no... But there have been incidents at the school where, if he fall, when he falls over, he bruises quite clearly, and the bruises stay and... and I think it was when he was in year 1, so 3 years… ago, the teacher commented on his, um, that he was showing bruising. So he’s.. someone who bruises when he falls over..

Q. OK. But did you notice anything?

A. Nuh.”

  1. This makes the bringing down of the Appellant’s elbow, the point of the olecranon going into the throat, quite implausible especially if it was done “deliberately” or “purposely” as the boy alleged.

The Magistrate’s decision

  1. I turn now to the reasons given by the learned Magistrate. In the written submissions on behalf of the police, this was the outline of the police case:

“The prosecution’s case is that the defendant had come into the living room where the complainant and his younger brother, [OM] were watching television. The defendant wanted to change the program and that resulted in a confrontation between the defendant and the complainant over the remote control.

The defendant ‘snatched’ the remote control away from the complainant in the loungeroom. After which the complainant was able to take custody of the controller back. With the remote control, the complainant has run to his bedroom to get away from the defendant. The defendant has pursued the complainant into the room. Whilst in the room, the defendant had pushed the complainant onto the bed. The defendant called the complainant ‘a brat’, ‘a bully’, and proceeded to press an elbow into the throat and neck region of the complainant whilst the complainant was lying on his back on the bed. The elbow was pressed against the complainant for three to six seconds causing him immediate pain”.

  1. That is not, however, how the case started initially because, initially, the complainant said that his father took the remote from him in the living room and that the boy then fled to his bedroom to escape being seen to be crying, and it was there that the Appellant assaulted him by bringing his elbow down on his throat “on purpose”.

  2. On p 1 of her Honour’s reasons, her Honour accepted that the Appellant was a person of good character and had no prior criminal convictions. She did not however advert to his experience in life as a school teacher or lecturer in education, and what that might mean. That the Appellant had many years of putting up with children in classrooms, of dealing with children, knowing things about their development, and knowing how, theoretically, children should be dealt with by teachers so that the child can thrive rather than languish, so that the child can be safe rather than threatened.

  3. After referring in brief to what the evidence of the complainant was in the DVEC , her Honour went on to say this:

“The defence submit that effectively [WM] was endeavouring to portray himself in a more favourable light when answering questions asked by the police in that he did not run from the room because he was about to cry; he ran from the room to keep the remote control from his father. He conceded in cross-examination he had taken the remote control which, in the Court’s view, indicates his understanding that the Court required him to tell the truth even if it did not portray him as the most obedient child”.

  1. With the utmost respect to the learned Magistrate, the police, as did the Magistrate, asked the child whether he knew the difference between the truth and a lie, asked him whether he knew the importance of telling the truth and specifically directed him only to tell the truth. Yet, her Honour accepted that the child had told an untruth to the police and appears to have accepted that as somehow being permissible if she believed he was telling her the truth. With the utmost respect to the learned Magistrate that, to my mind, is a double standard.

  2. In summarising the boy’s evidence, her Honour said this:

“In an exchange under cross-examination, [WM] denied squirming on the bed so that his father could not reach the remote and stated ‘No, he purposely put his elbow on my neck’. When asked question:

‘Q. He only took the remote out of your back pocket, that’s the truth?

A. He purposely put his elbow on my neck.’”

Her Honour made no adversion to the proposition that the last answer did not answer the last question, nor did she turn her mind as to how the child was in a position to say what his father’s purpose was, that is, what his father’s intention was.

  1. Again, at p 5 of her reasons commencing at line 40 the magistrate said this:

“It is certainly accepted that [WM] indicates that he was not actively resisting, but his father had, with purpose, placed his elbow on his neck.”

The first part of that paragraph was a summary of what the Defendant’s position was about the interaction between himself and WM that might be called the physical interaction. I find it difficult to ascertain what exactly her Honour meant by saying “It is certainly accepted” about what WM indicated. Does that mean that she was accepting it?

  1. At the top of p 6 of the transcript her Honour certainly accepted that WM’s evidence about the mark on his throat or chest was certainly an inconsistency, and then a little later her Honour continued in this fashion:

“It is certainly the Court’s view that in the manner in which he...conducted himself, both in the police interview and the witness box, he is quite capable of formulating that phrase independently. The other explanation for the very specific complaint is, of course, that it is the truth. If it suggested that the version offered by [WM] is made up and is said to be a concoction in some way between the mother and the son, it appears obvious opportunities were missed to bolster the credibility of the story.

The most [evident] being that [CF]’s version has always been that she arrived at the door of her son’s bedroom after the alleged incident and only saw her husband standing over her son, not that she could give firsthand evidence of actual assault. The allegation made by [WM] which has been precise, consistent and resolute is that when his father approached him in his bedroom, he then with purpose placed his elbow in his neck causing him pain.

He describes feeling sad because his father had done this, a comment which, can I say, has a child-like simplicity to it, honesty. I have certainly directed myself with regard to the principles enunciated in R v Murray and have also considered the evidence on the basis the defendant comes before this Court as a person of good character. The record of interview given by [DM] in many ways details a family which is clearly struggling, and on this day it appears due to an earlier incident with [WM] tensions were already somewhat high and the remote incident appears to be the breaking point.

Whilst [DM] describes himself as calm, evidence from both [WM] and his wife suggest that when he approached the bedroom he was certainly not calm and [WM]’s continued defiance resulted in both verbal name calling and physical contact on either version of the incident. After careful consideration of the evidence before this Court, I am satisfied that the defendant physically assaulted [WM] on this day by placing his elbow on the neck region of his son with sufficient force to cause pain.”

  1. Her Honour then made a formal finding of guilt. Again, her Honour appears to be focused on the fact that WM said that what his father did, he did purposely, without ever analysing what that meant. It was WM trying to tell the Court that his father acted deliberately, that is, he was telling the Court what was in his father’s mind which is something that he could not actually do. He may have believed that but he had to tell the Court why he believed that so that the Court could assess it.

  2. Furthermore, her Honour has narrowed the focus down to the very point of the placing of the elbow on the neck of the boy and excluded all other considerations. With the utmost respect, that is not a valid way of proceeding. One must look at all the circumstances and all the evidence, not the evidence related solely to the single event alleged, that is, the incident that amounts to the assault.

Consideration

  1. WM’s evidence is unreliable. It is unreliable because, initially, he said that that the remote was taken from him by his father in the living room, that he then left to go to his room to prevent being seen to be crying, and that his father followed him there, not to retrieve the remote control, but rather, to commit the assault alleged. The assault alleged is said to have caused a red mark on the area struck. What area was actually struck is completely unknown and unascertainable, and there is no evidence of any red mark at all, and WM conceded that he could not see any red mark and said that he “thought it”. When pressed, he indicated an area of his chest which he could see but the magistrate and everybody else concerned did not accept that. On very significant relevant issues, the boy’s evidence is seen to be unreliable. For reasons I have already given, the mother’s evidence is quite incapable of providing any corroboration at all.

  1. As has been submitted on behalf of the Appellant, attempts to reconstruct what were the actual movements of a boy laying on a bed, squirming to prevent his father retrieving a remote control from a pocket, when one was concentrating on keeping the remote control and the other concentrating on retrieving it, are a matter of speculation. Interaction would have only taken a few seconds, and what happened in those few seconds, although attempts were made to reconstruct it, it is quite unreliable, as has been submitted a matter of speculation.

  2. Over many years I have had cause to direct juries in accordance with R v Murray (1987) 11 NSWLR 12. Juries are told that in any case where a substantive criminal offence is alleged, caution should be exercised before convicting an accused person on the evidence of a single witness. The Court, in exercising criminal jurisdiction, is required to be satisfied beyond reasonable doubt that the offence has occurred. If there is only one essential witness, and here that witness is WM, the Court must be satisfied beyond reasonable doubt of the honesty and reliability of the essential prosecution witness before the accused person can be convicted.

  3. That is the direct result of the standard directions given about the onus and standard of proof. Juries are instructed to scrutinise the evidence of the essential witness with great care to determine whether it satisfies the requirements of proof beyond reasonable doubt. If there is any doubt arising from the evidence, the juries are directed to seek to find any corroborative evidence. Here there is no corroborative evidence. No one saw any red mark. There is no evidence of any injury per se, only an assertion by a child whose evidence is deficient in a number of ways.

  4. On the other hand, there is the evidence of DM who, it is accepted, was a man of prior good character. Not only had that to be borne in mind but also his experience of life also ought to have been borne in mind, and it does not appear to have been considered by her Honour at all. In Melbourne v The Queen (1999) 198 CLR 1 at [120], Kirby, J said this about evidence relating to good character:

“Unless in the particular circumstances of the case doing so is unnecessary, or would be unwarranted for reasons which the judge gives, the directions on good character must relate both to (a) the way in which that evidence may be considered by the jury to make it less likely that the accused committed the offence charged (propensity) and (b) the reliance which the jury may place upon any evidence which the accused may have given in the trial and any other statements made by the accused out of court whether to police or others which come to the attention of the jury during the trial (credibility).”

  1. When good character is raised, judges give juries directions both as to propensity and credibility. What is to be made of character evidence is, of course, a question for the tribunal of fact. Here I place myself in the position of a tribunal of fact. Here the propensity evidence is extremely important. Here is a man, 55 years old. He has three children agreed at the relevant time 12, 9 and 7. There is no suggestion that at any time in the past has he ever caused any injury to any of them. Here was a man who for many, many years has been involved in the educational system as both a primary and secondary teacher and a tertiary lecturer in education at an reputable university. There has been no complaint ever made about him by anybody.

  2. Here is a man who must know how to treat children and to deal with them and has been dealing with them probably throughout his adult life. The character evidence speaks clearly against any propensity to assault a child. Furthermore, from my analysis of the issue relating to how long the children may have been using tension between their parents to achieve their own purpose speaks, in my view, of the Appellant’s ability to act calmly and fairly with his children, and it is quite inconsistent with the picture that the prosecution wanted to paint and is inconsistent with guilt.

  3. The evidence of good character goes both to propensity and credibility. When I asked of the solicitor acting for the Crown on this appeal, what inconsistencies there were in the Appellant’s evidence, either in his evidence in the Local Court or in the ERISP, I was told that there were “subtle differences” but not one of them was drawn to my attention. I read both closely, and I cannot find any inconsistency of the type that would dissuade me from disbelieving what DM was saying. Clearly there may be differences of view as to what one makes of the evidence seeking to reconstruct where the bodies of the two actors were at any particular time in the tussle over the remote control, but it often becomes difficult for people to describe, in a fluid dynamic situation, exactly where what body part was at any one particular time from the point of view of either of the actors. Any subtle differences in that regard in my view are of little moment. There was nothing that has been drawn to my attention that would persuade me that what DM swore on oath was inaccurate. In my view, the learned Magistrate has inverted the onus of proof. It is for the Crown to establish the guilt of the accused beyond reasonable doubt, it is not the accused to establish anything at all.

  4. Here is a boy aged ten years and three months at the time of giving evidence, giving unsworn evidence, of showing upset when a significant hole in his evidence was pointed to, of being slow to answer questions at times, and of answering questions unresponsively by seeking to change the evidence by saying things such as “he did it on purpose”, which begs the whole question that the Court had to face. The evidence of the appellant was, in my view, much more persuasive.

  5. In my view, at the very least, her Honour should have entertained a reasonable doubt. If there were a reasonable doubt, then the Appellant was entitled to be acquitted.

Determination

  1. I have enquired of the representatives of the parties whether any further reasons for judgment are required. I am told that none is so required. For those reasons I set aside the conviction recorded and any sentence passed by Viney LCM sitting in the Burwood Local Court on 15 April 2021.

ADVO

  1. The remaining question is whether I ought to interfere with the apprehended domestic violence order made by Viney LCM after recording the conviction and proceeding to the sentence of the appellant. The Crimes (Domestic and Personal Violence) Act 2007 s 16 provides this:

“(1)  A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears—

(a)  the commission by the other person of a domestic violence offence against the person, or

(b)  the engagement of the other person in conduct in which the other person—

(i)  intimidates the person or a person with whom the person has a domestic relationship, or

(ii)  stalks the person,

being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.”

Under subsection (2), it is not necessary to prove that a person in fact fears if the person is a child. Her Honour made a final ADVO against the Appellant for a period of two years. The conditions imposed were that the Appellant must not do any of the following to WM or anyone who has a domestic relationship with him:

  1. assault or threaten him,

  2. stalk, harass or intimidate him, or

  3. intentionally or recklessly destroy or damage any property that belongs to or is in the possession of WM.

Of course, those in a domestic relationship with WM would include his mother and his two siblings.

  1. The question here is whether this Court, sitting in place of the Local Court, is satisfied on the balance of probabilities that WM has had a domestic relationship with another person, has reasonable grounds to fear the commission by his father of any domestic violence offence against him or against any person with whom he is in a domestic relationship, or has reason to fear that his father will intimidate or stalk him or any person with whom he has a domestic relationship. On the evidence adduced, I am not satisfied that any of those things is ever likely to occur.

  2. There is no requirement that because the conviction has been set aside, so must the ADVO. In that regard I bear in mind the provisions of s 142(2) of the Evidence Act 1995 in determining whether or not the Court is satisfied, the matters that the Court must take into account are the importance of the evidence in the proceedings, and the gravity of the matters referred to in relation to the question. This, of course, is a statutory re-enactment of the rule in Briginshaw v Briginshaw (1938) 60 CLR 336. Here I am not persuaded that WM has reasonable grounds to fear any domestic violence offence against him or any member of his family. For those reasons I set aside the ADVO made by the Local Court at Burwood on 15 April 2021.

  3. Adjourned to 14 October 2021 for the Appellant’s application for costs.

Decision last updated: 01 September 2022

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Statutory Material Cited

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Briginshaw v Briginshaw [1938] HCA 34
Briginshaw v Briginshaw [1938] HCA 36
Melbourne v The Queen [1999] HCA 32