Fitz v Cassidy and Fitz v Lyons
[2023] NTSC 98
•28 November 2023
CITATION:Fitz v Cassidy and Fitz v Lyons [2023] NTSC 98
PARTIES:FITZ, Justin
v
CASSIDY, Craig
And
FITZ, Justin
v
LYONS, Richard
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 2 of 2022 (22118596) and
LCA 6 of 2022 (22128224)
DELIVERED: 28 November 2023
HEARING DATES: 12 August 2022
JUDGMENT OF: Southwood J
CATCHWORDS:
PRACTICE AND PROCEDURE – Appeal – Application for extension of time to institute an appeal – Whether Court should dispense with compliance of conditions precedent – Appellant did everything reasonably practicable – Application granted
CRIMINAL LAW – Appeal – Appeal against conviction – Trial Judge misapplied the rule in Browne v Dunne – Whether irregularity constitutes a miscarriage of justice – Application of the proviso – The appellant’s evidence was so glaringly improbable as to be incapable of belief – Significant denial of procedural fairness – Substantial miscarriage of justice – Appeal allowed
CRIMINAL LAW – Appeal – Appeal against sentence – Concurrency – Trial Judge erroneously sentenced the appellant for a breach of domestic violence order instead of breach of bail – Appeal allowed
CRIMINAL LAW – Appeal – Appeal against sentence – Manifest excess – Appellant committed aggravated assault while on bail for another offence involving domestic violence – Sentence within range – Appeal dismissed
Bail Act 1982 (NT) s 37B
Criminal Code Act1983 (NT) s 29, s 188(1), s 188(2)
Domestic and Family Violence Act 2007 (NT) s 121(7)
Local Court (Criminal Procedure) Act 1928 (NT) s 165, s 171(2), s 177(2)(f)
Sentencing Act 1995 (NT) s 112
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1993] 1 NSWLR 1; Brown v Lynch (1982) 15 NTR 9; Brown v R [1980] Tas R 61; Browne v Dunn (1893) 6 R. 67; Castle v The Queen (2016) 259 CLR 449; Federal Commissioner of Taxation v Arnhem Air Engineering Pty Ltd (1987) 90 FLR 140; Hofer v The Queen [2021] HCA 36; Hooton v The Queen [2011] NTCCA 2; Isles v Lyons [2016] NTSC 11; Miles v The Queen [2001] NTCA 9; MLW v The Queen [2022] NTCCA 2; Murphy v The Queen [2005] NTCCA 15; Nudd v The Queen (2006) 80 ALJR 614; Orreal v The Queen [2021] HCA 44; R v Costi [1987] 48 SASR 269; R v Manunta (1989) 54 SASR 17; RH v The Queen [2022] NTCCA 7; Rigby v Benfell [2020] NTCA 9; SB v Heath [2017] NTSC 13; Swann v Mosel [2014] NTSC 43; TKWJ v The Queen (2002) 212 CLR 124; Wilde v The Queen (1988) 164 CLR 365, referred to
REPRESENTATION:
Counsel:
Appellant:M Wall
Respondents: D Dalrymple
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondents: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Sou2301
Number of pages: 46
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSFitz v Cassidy and Fitz v Lyons [2023] NTSC 98
No. LCA 2 of 2022 (22118596) and LCA 6 of 2022 (22128224)
BETWEEN:
JUSTIN FITZ
Appellant
and
CRAIG CASSIDY
Respondent
AND BETWEEN:
JUSTIN FITZ
Appellantand
RICHARD LYONS
Respondent
CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 28 November 2023)
Introduction
On 14 October 2021, in matter LCA 2 of 2022 (22118596) in the Local Court at Tennant Creek, the appellant pleaded not guilty to a charge of aggravated assault with a mobile telephone contrary to s 188(1) and (2) of the Criminal Code; and on 14 and 15 October 2021 a summary trial took place before Judge Birch. On 20 October 2021, the appellant was found guilty of the charge. On the same day, the appellant pleaded guilty to breaching his bail contrary to s 37B of the Bail Act 1982 (NT), and another aggravated assault this time on LH contrary to s 188(1) and (2) of the Criminal Code. The further offending occurred while the appellant was on bail for the assault upon KN.
On 17 November 2021, Judge Birch convicted the appellant of all three offences and sentenced the appellant to four months imprisonment commencing on 17 September 2021 for the crime of aggravated assault with a mobile telephone on File No LCA 2 of 2022 (22118596). On the same day his Honour also sentenced the appellant to ten days imprisonment for an act of domestic violence and ten months imprisonment for aggravated assault on File No LCA 6 of 2022 (22128224). His Honour ordered that the sentences be served cumulatively, giving a total sentence of 14 months and ten days imprisonment. His Honour suspended the total sentence of imprisonment after the appellant had served five months in prison.
Three notices of appeal have been filed in this proceeding, two against the sentences imposed in file (22128224) and one against conviction in file (22118596). The appellant was granted bail on 19 August 2021. It is unclear if he returned to prison on 16 September 2021 after he committed the two offences that are the subject of the sentencing appeals.
The Supreme Court heard the three appeals together on the basis that in the sentencing appeals the appellant argued that there should be some concurrency between the sentences imposed for each of the three offences.
On 12 August 2022, I made the following orders in the appeals against sentence:
1. The appeal against the ten days cumulative sentence is allowed. The ten days are to be served concurrently with the sentence of four months imprisonment imposed for the assault involving the mobile phone on File No LCA 2 of 2022 (22118596).
2. The appeal against the ten months sentence of imprisonment for the Memorial Club assault in Tennant Creek is dismissed on the basis that the sentence is within range and not manifestly excessive. The assault was committed while the offender was on bail for another offence involving domestic violence.
On the same day, I reserved my decision in the appeal against conviction in File No LCA 2 of 2022 (22118596).
Following are my reasons for decision in the appeal against conviction and the two sentencing appeals.
Application for extension of time to institute the appeals
The appellant filed all three notices of appeal out of time. Under s 171(2) of the Local Court (Criminal Procedure) Act 1928 (NT), an appeal against conviction must be instituted within 28 days from the date of the conviction, order, or adjudication appealed against. Compliance with s 171(2) is a condition precedent to the right of appeal.[1] As the appellant filed his appeal against conviction 33 days after the date of conviction, it was five days out of time. He filed the two appeals against sentence, 85 days out of time. Consequently, it is first necessary to consider whether the appeals are time barred.
Under s 165 of the Local Court (Criminal Procedure) Act, the Court may exercise its discretion to dispense with conditions precedent to appeal if satisfied that the appellant has shown, by evidence or admitted facts, that he has done whatever is reasonably practicable to comply with the Act.
The reasons for the filing of the notices of appeal out of time are contained in the affidavits of Ms Trish Kashyap of 24 January 2022 and Mr Noah Redmond of 10 March 2022. In short, these affidavits establish that:
(1)While in custody, the appellant provided instructions to his legal representatives to appeal against both his conviction and sentence within time.
(2)The appellant’s legal representatives at the North Australian Aboriginal Justice Agency could not continue to act for the appellant on appeal due to an ethical issue. In the circumstances, they took what measures they considered appropriate to prevent prejudice to the appellant, and referred the matter to the Northern Territory Legal Aid Commission (‘NTLAC’).
(3)Lawyers at NTLAC sought and obtained instructions from the appellant to appeal his conviction and filed the notice of appeal with all practicable expediency.
(4)Due to an error on behalf of NTLAC, no instructions were taken about an appeal against sentence until after the expiration of 28 days. Upon receipt of instructions and consideration of the merits of the appeals against sentence, the appeals against sentence were filed with all due diligence.
Consideration
In SB v Heath,[2] Mildren AJ observed at [13]:
It is well established that where a lay appellant is in custody and instructs his solicitor to lodge an appeal on his behalf within the 28 day period, and the failure to do so is the fault of the solicitor, this is sufficient to prove that the appellant has done whatever was reasonably practical to comply with the Act.
I accept the appellant’s unchallenged evidence on this issue, and I find that he did whatever was reasonably practicable to institute his appeals. He instructed his lawyers to do so within time. The appeals were not filed within time for reasons beyond his control.
As a rule, if an appellant has done all that they reasonably could to institute an appeal, the Court will exercise its discretion to excuse failures to comply with conditions precedent if the delay in instituting the appeal is not too long, and the grounds of appeal are reasonably arguable.[3]
In this case, the respondent did not oppose the making of an order dispensing with conditions precedent for the two appeals against sentence and grounds 3 and 5 of the appeal against conviction. On 12 August 2022, I granted leave to the appellant to plead as grounds of appeal grounds 3 and 5. However, as to grounds 1, 2, 4 and 6 of the appeal against conviction, the respondent submitted that they are not reasonably arguable.
In light of the respondent’s submissions, the appellant abandoned grounds 1 and 4 of the appeal against conviction. Grounds 2, 3, 5 and 6 were pressed.
As will be seen below, I find that grounds 5 and 6 are reasonably arguable. I also find that the appeals against sentence are reasonably arguable. There was sufficient merit to permit the three appeals to be heard. Accordingly, I exercised my discretion in favour of the appellant to dispense with the time limit for instituting an appeal under s 171(2) of the Local Court (Criminal Procedure) Act in respect of ground 6, in addition to grounds 3 and 5, in the appeal against conviction and the two appeals against sentence. I do not dispense with the time limit in respect of ground 2 in the appeal against conviction. The agitation of the ground of self-defence in the appeal against conviction was without any merit.
Appeal No. LCA 2 of 2022 (22118596) – appeal against conviction
The Amended Notice of Appeal against conviction pleads the following grounds of appeal:
(1)The verdict is unreasonable and not supported by the evidence;
(2)The learned hearing Judge erred in his assessment of the issue of self-defence;
(3)The learned hearing Judge relied on matters not the subject of evidence;
(4)The learned hearing Judge erred in failing to properly direct himself about post-offence conduct giving rise to consciousness of guilt reasoning;
(5)The learned hearing Judge erred in his reasoning about a divergence between propositions put by counsel and the evidence of the appellant; and
(6)The learned hearing Judge erred in his reasoning regarding medical evidence.
As stated above, grounds of appeal 1 and 4 are no longer relied on by the appellant.
Background
On the morning of 15 June 2021, the appellant and KN attended the home of a friend. Both had been drinking the night before and they continued to drink at their friend’s home.
An argument developed over jealousy issues, and their friend asked the appellant and KN to leave his home. The appellant left the home through the front door and KN left through the back door. She then went back through the home and out the front door.
While outside, there was a physical altercation between the appellant and KN. The altercation constituted the subject of the assault charge, the facts of which were the only matters that were materially in dispute at the trial. Although other people at the address heard an altercation, there were no witnesses to the incident other than the appellant and KN.
KN gave evidence that, following a brief verbal argument, the appellant threw a mobile phone at her, causing a laceration to her forehead.
The appellant denied throwing the mobile phone at KN. His evidence was that KN attacked him. He pushed her in self-defence and KN then threw herself on the ground, causing the injury to her head.
Evidence and findings of the trial Judge
The primary issue at trial was whether the laceration to KN’s forehead was caused by the appellant or self-inflicted by KN. The issue turned on the contest of evidence between KN and the appellant.
At the hearing, the prosecution called three witnesses: KN, RW (the friend) and the arresting officer, Stephen Heyworth. RW gave evidence that he was present at the address and heard a commotion, but did not see any physical altercation.
The appellant gave evidence. During his examination-in-chief, he gave the following evidence:
Appellant:Well, as I was standing at the front, I seen KN come around from the back and just, “Who’s that? Who’s on the phone? Give me the phone. What are you doing?” You know, just kept going, going. And then she’s – yeah, she’s come real close and just started hitting me.
Ms Kashyap: Yes. And how was she hitting you?
Appellant:Just punches, just hitting, just going at, you know, just throwing whatever she could.
Ms Kashyap: Okay. And what did you do in response to that?
Appellant:Well, I just got sick of it and I’ve pushed her away, you know, to stop her. You know, I did tell her, “Stop”, you know, I’m – you know, you know, I’m on the phone, you know. And she’s, you know, connected in the head and that’s when I’ve just, you know, come on, go away, fuck off. And you know ---
Ms Kashyap: Alright. And where did she fall?
Appellant:On something like on the – there’s a ramp going down towards the gate to the alleyway. And as I’ve pushed her she’s just – it’s sort of like she threw herself, but she’s landed on the concrete and yeah.
Ms Kashyap: Okay. And then what happened to her after that?
Appellant:Well she got up, she’s turned around and looked at me and then I’ve noticed she actually was bleeding.
Ms Kashyap: Okay. And where was she bleeding from?
Appellant:On her head
Ms Kashyap: Okay. Can you describe where on her head?
Appellant:On the forehead, see on the left about here somewhere.
After hearing the evidence, the trial Judge made the following findings:
I note in passing the [appellant] is a big man, whilst KN isn’t a tall woman, and is of what might be described as a slight build. KN denied hitting the [appellant] or falling to the ground. The [appellant] didn’t give evidence as to how KN was hitting him or on which parts of his body he was being struck, but it wasn’t his pushing away which caused her to fall, she threw herself onto the concrete. I am not satisfied on the evidence before me that defensive conduct has been raised to the point that it’s required to be negatived by the prosecution on the [appellant’s] evidence.
Obviously there is a substantial and significant conflict between the account given by KN and the [appellant]. KN says she was hit by the [appellant] throwing the mobile phone at her, while the [appellant] says KN’s head injury was caused by her striking her head on the concrete after she threw herself down. KN’s account is supported by her immediate complaint to the police, and medical evidence. The injury she sustained is consistent with a blunt or sharp force, including being struck by a mobile phone.
I note the police investigation of the matter does not connect the [appellant’s] mobile phone to the injury, even though it was seized by police at the time of his arrest. Overall I found KN to be a straightforward witness who had a strong recollection of events, even though she was to some degree under the influence of alcohol at the time.
The [appellant’s] evidence was in my view an attempt to minimise his role in the incident and blaming KN totally. He said he wasn’t angry about her conduct at RW’s home, he was merely shamed. It was KN who was punching him, and when he pushed her away she deliberately threw herself down onto the concrete to get him into trouble by causing the injury to herself. It was put to KN in cross-examination she fell to the ground. It was not put to KN she threw herself onto the concrete.
That was because the [appellant] had given his legal counsel no instructions that’s what occurred. The [appellant] has made up the account in evidence, in my view, to again lessen his role and blame KN for the trouble. It is fanciful to accept that KN threw herself onto the concrete, causing the injury depicted… I do not accept the evidence on this point as a reasonable possibility, and I reject it.
On considering the whole of the evidence I am satisfied beyond reasonable doubt that KN was assaulted on 15 June by the [appellant] and the assault was unlawful. I accept KN’s evidence that the injury to her forehead was caused by the mobile phone, and the injury constitutes serious harm. [emphasis added]
Ground 2: Error in the assessment of self-defence
As to ground 2, the appellant submits that the learned trial Judge erred in his assessment of the issue of self-defence.
By concluding that defensive conduct had not been raised on the respondent’s evidence to the point that it was required to be negatived by the prosecution, the appellant submits that the trial Judge did not undertake the necessary analysis regarding self-defence.
Pursuant to s 29 of the Criminal Code, a person is not criminally liable for a charge of unlawful assault if the person engaged in defensive conduct. Once the issue of self-defence arises on the evidence, it must be rebutted beyond a reasonable doubt by the prosecution.
Counsel for the appellant submitted that the question of whether self-defence “arises” on the evidence is unequivocal. Self-defence is either raised or not raised; there is no evidentiary threshold it must meet before it must be negatived by the prosecution.
The appellant contends that self-defence was raised on both the evidence of the appellant and on the body-worn video of Officer Heyworth, which included a statement from the appellant in which he alleges that KN “started it”. This evidence needed to be rebutted beyond a reasonable doubt, either by the prosecution proving that the conduct was not done for a defensive purpose, or that the conduct was not a reasonable response in the circumstances as the appellant reasonably perceived them to be.
On the other hand, counsel for the respondent submits that self-defence was not raised on the evidence. Rather, the explanation provided by the appellant as to how KN sustained the injury to her forehead, was that she deliberately threw herself to the ground, thereby causing the injury herself. This understanding of the appellant’s testimony was open to the trial Judge and meant that on the appellant’s account he did not engage in self-defence and had no conduct to justify.
Consideration
In order to convict the appellant, it was necessary for the trial Judge to (i) reject the appellant’s evidence that KN threw herself onto the ground and injured herself; and (ii) accept KN’s evidence that the appellant threw the mobile phone at her, thereby causing the laceration to her forehead. Even if the trial Judge was satisfied that KN was the initial aggressor and that the appellant pushed KN off him in self-defence, this finding had no bearing on the ultimate question of whether the appellant assaulted KN by throwing the mobile phone at her.
The appellant was not charged with pushing her onto the ground. As a matter of common sense, self-defence cannot be raised when an accused submits that he did not do the act that is the subject of the charge, or, in other words, the act that may be the subject of self-defence. In this case, the subject of the charge was the throwing of the mobile phone at the complainant. By suggesting that he did not throw the mobile phone, and that KN’s injury was self-inflicted, it follows that on the defence case the appellant was not seeking to justify assaulting the respondent with his mobile telephone. Instead, he gave evidence of a different assault, which he said was justified by self-defence, and did not cause the respondent’s injury. If the trial Judge rejected the appellant’s version of the altercation, his Honour was not called on to decide any issue of self-defence.
As the trial Judge rejected the appellant’s alternative version of the incident, the issue of self-defence could not be, and was not, raised on the evidence. Accordingly, I dismiss ground 2 of the appeal.
Ground 3: Reliance on matters not in evidence
As to ground 3, the appellant submitted that the learned trial Judge relied on matters not the subject of evidence.
In his reasons, the trial Judge stated the following:
The [appellant] described himself as being slightly drunk. When he was breath tested upon arrest he had a reading of 0.127 per cent BAC. The body-worn video of Sergeant Heyworth… involving the arrest of the [appellant]: in it the [appellant], by his manner and words, appears to be intoxicated. [emphasis added]
The evidence before the trial Judge did not include evidence of the appellant being breath tested, and the respondent accepts that his Honour’s reference to that information was in error. However, the respondent contends that this error is not a vitiating error and does not amount to a substantial miscarriage of justice within the meaning of s 177(2)(f) of the Local Court (Criminal Procedure) Act, and submits the appeal on this ground should be dismissed.
It is well established that a trier of fact is not permitted to rely on matters not in evidence, unless they are matters of which judicial notice may be taken, or general knowledge, or common sense or life experience. To rely on such information potentially denies a defendant a fair trial because in those circumstances, the defendant is denied an opportunity to: (i) challenge the admissibility of the information; (ii) challenge the accuracy of the information; and (iii) tender additional evidence to rebut the information.
The appellant submits that the trial Judge relied on the evidence of the blood alcohol reading in assessing the reliability of his evidence. In order to convict the appellant, the trial Judge needed to reject the evidence of the appellant. By rejecting the evidence of the appellant and finding him guilty “on the whole of the evidence”, the trial Judge necessarily had regard to the appellant’s blood alcohol concentration. In other words, it was a necessary, if not sufficient, basis for his Honour’s conclusion that the appellant was an unreliable witness. In doing so, the appellant submits that the trial Judge’s reasoning was impermissible and caused a miscarriage of justice.
The respondent contends that the reference to the appellant’s blood alcohol concentration was made for the sole purpose of confirming that the appellant had alcohol in his system at the time of the offending. This matter was not in issue at the trial and was consistent with the appellant’s own admissions that he had been drinking alcohol on the day of the assault. It is nowhere stated by the trial Judge that he formed the view that the appellant was grossly intoxicated or that he rejected any evidence of the appellant that he had been less intoxicated than KN.
Consideration
In determining the purpose for which the reference to the appellant’s blood alcohol concentration was made, regard must be had to the context in which the reference was made. In considering the issue of intoxication, the trial Judge relevantly stated:
In regard to the issue of intoxication in these proceedings each of the witnesses, KN, RM and the [appellant], had been drinking. KN told me she had been drinking all night, and again at RW’s home from about 9am. The [appellant] in evidence said RW was drunk, while RW described KN, whose name he said was T, as being very drunk. RW had been drinking on this morning but it’s unclear what his level of sobriety was at the relevant time.
The [appellant] described himself as being slightly drunk. When he was breath tested upon arrest he had a reading of 0.127 per cent BAC. The body-worn video of Sergeant Heyworth… involving the arrest of the [appellant]: in it the [appellant], by his manner and words, appears to be intoxicated. He was pointing and waving his arms about in the manner expected of a person under the influence of alcohol. Similarly in the CCTV footage… the [appellant] has a notable staggering gait. He is pointing and waving his arms around in a similar way as to when he was dealing with police prior to his arrest.
Each of the main witnesses in this matter… were under the influence of alcohol. Accordingly, their reliability is in issue, and it’s necessary to carefully consider their evidence and be satisfied it isn’t inherently unreliable.
[Emphasis added]
It is apparent from his Honour’s reasons, that the reference to the appellant’s blood alcohol concentration was a fact that his Honour took into account to reach his conclusion that the three lay witnesses were under the influence of alcohol. He did so in circumstances where the appellant gave evidence that he was slightly intoxicated. However, the only use that the trial Judge made of that finding of fact was to direct himself that the evidence of all three lay witnesses must be carefully scrutinised. He did not use the appellant’s blood alcohol reading as a basis to conclude that the appellant was more intoxicated and therefore his evidence was less reliable than the evidence of the other two witnesses. His Honour rejected the appellant’s account of the altercation between him and the complainant as “fanciful” and as an “attempt to minimise his role in the incident and blame KN”. His Honour rejected the appellant’s evidence not because of his level of intoxication at the time of the incident, but because in his Honour’s opinion the appellant’s account was inherently implausible.
Consequently, I find that the trial Judge’s reliance on the appellant’s blood alcohol reading, which was not in evidence, did not significantly influence his ultimate assessment of the appellant’s evidence and I conclude that no substantial miscarriage of justice occurred. Accordingly, I dismiss ground 3 of the appeal under s 177(2)(f) of the Local Court (Criminal Procedure) Act.
Ground 5: Misapplication of the rule in Browne v Dunn
As to ground 5, the appellant submitted that the learned trial Judge erred in his reasoning regarding a divergence between propositions put by defence counsel to the complainant in cross-examination and the evidence of the appellant.
During the cross-examination of KN, the following exchange occurred:
Ms Kashyap: So, firstly, KN, I’m going to say that when you were both outside you started swinging punches at [the appellant], didn’t you?
KN:I did not. Like what I said. I was standing 2 metres away from him and he threw the phone at me.
Ms Kashyap: Okay. Did you start pushing and hitting him on the body?
KN:No. I walked away from there while I was standing there. Like, two seconds, and blood was running down. And I said, “I’m bleeding now. I’m gonna go. I’m going to the station”. ‘Cause he always do violent things at me.
Ms Kashyap: Alright. Well, what I’m going to say to you, KN, is that you were hitting him and so he pushed you away, didn’t he?
KN:I did not.
Ms Kashyap: And I’m going to say that you also fell to the ground after he pushed you, and you hit your head on the corner of pavement and that’s why you started bleeding?
KN:Nah, he threw the phone at me.
In his reasons, the trial Judge made the following findings:
It was [on the appellant’s evidence] KN who was punching him, and when he pushed her away she deliberately threw herself down onto the concrete to get him into trouble by causing the injury to herself. It was put to KN in cross-examination she fell to the ground. It was not put to KN she threw herself onto the concrete.
That was because the [appellant] had given his legal counsel no instructions that’s what occurred. The [appellant] has made up the account in evidence, in my view, to again lessen his role and blame KN for the trouble.
[emphasis added]
In the passage above, the appellant submits that the trial Judge relied on a discrepancy between what was put to KN in cross-examination and what the appellant said in his evidence-in-chief. The trial Judge relied on this divergence to find that the appellant’s evidence before him was not in accordance with his instructions to defence counsel and was a recent invention. It was submitted, that such reasoning is impermissible for three reasons.
First, the reasoning doesn’t arise on the evidence because questions from counsel are not evidence, only the answers to those questions are. No inference can be drawn against an accused because of something put (or not put) by their counsel in cross-examination. Permitting such an inference is contrary to the accused’s right to silence and the onus of proof.
During the trial, it was put to KN that she was attacking the appellant and the appellant pushed her, causing her to fall and hit her head. KN denied this occurred. Without more, the appellant submitted that the question and answer must be put to one side as it was of no evidentiary value.
Second, the reasoning doesn’t arise on the evidence because communications between accused and their counsel are privileged and inadmissible, and compliance with the rule in Browne v Dunn does not waive that privilege.
Third, even if the reasoning does arise, the discrepancy does not support the conclusion of the trial Judge that the appellant made up the account in evidence. There may be alternative explanations which do not reflect upon the credibility of the accused, including that there has been a miscommunication between the appellant and his counsel in conveying his instructions.[4]
As was stated by King CJ in R v Manunta[5] regarding the failure of defence counsel to put propositions to a witness:
I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing up. It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned.
Before the trial Judge could rely on the discrepancy, it was necessary for him to rule out all alternative explanations, and his Honour was required to direct himself accordingly. It is apparent from his Honour’s reasons, that he considered no other possible explanations and gave himself no such direction. Consequently, the way the trial Judge reasoned was impermissible and, in these circumstances, has miscarried.
It also seems to me that it is arguable that the rule in Browne v Dunn was not breached. The rule does not require putting every detail of a proposition to a witness to enable a witness to deal with the proposition. In this case, the complainant denied the suggestion that she had fallen onto the ground and hit her head, which caused her injury. She maintained that she was hit by the mobile telephone. In the circumstances, there was no point in counsel for the appellant pressing the proposition further and putting to her that she deliberately hit her head on the ground.[6]
Respondent’s submissions
The respondent concedes that the trial Judge should not have made the finding of recent invention without giving himself the necessary direction. However, the respondent submits that the trial Judge’s observation regarding the communications between the appellant and his counsel, while unfortunate, did not form part of his chain of reasoning towards guilt. The trial Judge had already rejected the appellant’s evidence as fanciful without relying on the interactions between the appellant and his counsel. This is made clear when regard is had to the full paragraph containing the impugned statement:
The [appellant’s] evidence was in my view an attempt to minimise his role in the incident and blame KN totally. He said he wasn’t angry about her conduct at RW’s home, he was merely shamed. It was KN who was punching him, and when he pushed her away she deliberately threw herself down onto the concrete to get him into trouble by causing the injury to herself. It was put to KN in cross-examination she fell to the ground. It was not put to KN she threw herself onto the concrete.
That was because the [appellant] had given his legal counsel no instructions that’s what occurred. The [appellant] has made up the account in evidence, in my view, to again lessen his role and blame KN for the trouble. It is fanciful to accept that KN threw herself onto the concrete, causing the injury depicted… I do not accept the evidence on this point as a reasonable possibility, and I reject it.
On considering the whole of the evidence I am satisfied beyond reasonable doubt that KN was assaulted on 15 June by the [appellant] and the assault was unlawful. I accept KN’s evidence that the injury to her forehead was caused by the mobile phone, and the injury constitutes serious harm.
[Emphasis added.]
Counsel for the respondent submits that it is apparent from the passage above that the impugned observation was merely an ex post facto comment regarding how the appellant’s evidence unfolded. The trial Judge’s impermissible observation did not detract from his finding of guilt on the “whole of the evidence”. In those circumstances, it is submitted that there has not been any miscarriage of justice and the Court should dismiss this ground of appeal pursuant to s 177(2)(f) of the Local Court (Criminal Procedure) Act.
Consideration
A miscarriage of justice refers to any departure from the standards of a trial to which an accused is entitled and the standards of fairness which must attend it.[7] To establish a miscarriage of justice arising from a material irregularity in a trial, the appellant must show a realistic possibility that the identified procedural irregularity affected the basis on which the trial Judge made the finding of guilt.[8] It is only if that threshold is met that the appellate court is required to go on to consider the proviso and answer the quite distinct question of whether it is satisfied that no substantial miscarriage of justice actually occurred.
The discrepancy between the questions put to KN in cross-examination and the evidence given by the appellant did not automatically lend itself to a finding of recent invention. The trial Judge was in error to draw such a conclusion without ruling out other possible explanations, such as a miscommunication between the appellant and his counsel, or a forensic decision on the part of defence counsel not to advance certain matters upon which counsel had received instructions because those matters were unlikely to assist the defence case. Accordingly, I find that the trial Judge’s reliance on the discrepancy between propositions put by defence counsel and the evidence of the appellant, without giving himself the appropriate direction, was a material irregularity.
In the context of what was, essentially, an “oath on oath” case, there was clearly a realistic possibility that the basis on which the trial Judge made the finding of guilt - which necessarily required a finding that the appellant’s evidence so lacked credibility that it did not raise a reasonable doubt – was affected by the impermissible reasoning of recent invention. Indeed, it is apparent from his Honour’s reasons that the finding of recent invention went directly to the assessment of the appellant’s credibility and was a necessary step in the trial Judge’s chain of reasoning towards guilt. The trial Judge relied on the divergence between the questions put to KN in cross-examination and the evidence of the appellant to find that the appellant “made up the account in evidence, in my view, to again lessen his role and blame KN for the trouble”.
Consequently, I find that the trial Judge’s reliance on the divergence between propositions put by defence counsel in cross-examination of the complainant and the evidence of the appellant, and his Honour’s failure to consider other possible explanations for such a discrepancy, affected the basis on which the trial Judge made the finding of guilt. This procedural irregularity constitutes a miscarriage of justice, and ground 5 of the appeal is made out.
Application of the proviso
Having found that there was a miscarriage of justice, this Court retains a residual discretion not to overturn the conviction if it considers that no substantial miscarriage of justice has actually occurred.
As the Court of Criminal Appeal observed in RH v The Queen:[9]
While there is no single universally applicable description of what constitutes ‘no substantial miscarriage of justice’, an appellate court is precluded from concluding that no substantial miscarriage of justice actually occurred unless the court itself is persuaded that the evidence properly admitted at trial established guilt beyond reasonable doubt. The court must consider the whole of the record of the trial and the nature and effect of the error which gives rise to the miscarriage of justice in the particular case.
In cases which turn on contested credibility, the nature and effect of the error may render an appellate court unable to assess whether guilt was proved beyond reasonable doubt due to the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record. Those limitations acknowledge that the assessment of the credibility of a witness on the basis of evidence given in the witness box in the context of the trial is the function of the jury, not the appellate court. In such cases, regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved.
…
In Hofer, the High Court concluded that it was possible in that case for the appellate court to assess whether guilt was proved beyond reasonable doubt (so it was right to conclude there was no substantial miscarriage of justice) because, despite the highly prejudicial cross-examination of the appellant as to his credit which proceeded upon a wrong assumption, and despite the prosecutor effectively (by the cross-examination) inviting the jury to reject the appellant’s evidence as not credible, the evidence of the appellant on a crucial issue (an element of the offending) ‘was so obviously false that it carried no weight at all’. In determining whether the appellant’s evidence on this crucial issue ‘might reasonably possibly be true’, the plurality held (at [58]) that his evidence together with the evidence that was common ground between the parties ‘inevitably leads to the conclusion that the appellant’s evidence was so glaringly improbable that it could not give rise to a reasonable doubt as to his guilt’. The plurality distinguished (at [61]-[64]) the case before it from a case which turns on the jury’s preference for the evidence of one witness over another witness, i.e. where the appellate court is required to seek to resolve a conflict between oath and oath, where the resolution of the contest must affect the reliability of the jury’s verdict. The plurality held (at [68]) that, in the case of the evidence given by the appellant, any reasonable jury would have regarded the appellant’s evidence on the crucial issue as ‘bordering on fantasy’.
In summary, in cases which turn on contested issues of credibility (i.e., ‘oath against oath’ cases), unless the appellant’s evidence was so glaringly improbable that it could not reasonably possibly be true and so could not give rise to a reasonable doubt as to his guilt, it will generally not be possible for the appellate court to be satisfied of the appellant’s guilt beyond reasonable doubt, with the consequence that the appellate court cannot conclude that a substantial miscarriage of justice did not actually occur from an irregularity in the trial which gave rise to a miscarriage of justice.
If the appellate court can be satisfied of the appellant’s guilt beyond reasonable doubt, it is still necessary for the appellate court to consider whether there has been a significant denial of procedural fairness at trial which makes it proper to allow the appeal and order a new trial. This occurs where the miscarriage of justice amounts to ‘a serious breach of the presuppositions of the trial’. In Wilde v The Queen, the plurality (Brennan, Dawson and Toohey JJ) said:
The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso.[10]
Guilt beyond reasonable doubt?
During oral submissions, counsel for the respondent submitted that, even if it was found that the trial Judge’s finding of recent invention formed a step in his chain of reasoning towards guilt, the finding of recent invention and the failure to give the required direction had no significance for the ultimate finding of guilt. Thus, it did not constitute a substantial miscarriage of justice.
Notwithstanding the error, counsel for the respondent submitted that the appellant’s guilt was proven beyond reasonable doubt on the whole of the evidence properly admitted at trial. In making this submission, the respondent relied on the following evidence, as identified by the trial Judge himself in his reasons for decision:
1. KN gave a simple and coherent account of arguing with the appellant while he was speaking on the phone at the front of the house, which culminated in the appellant throwing his mobile phone at her;
2. The appellant is a large man, while KN is a small woman of slight build;
3. CCTV footage shows the appellant running after KN, holding her in a bear hug, and pushing her. It also shows KN pushing the appellant away, and the appellant following KN in a manner that appears to be an effort to discourage her from attending the police station;
4. The appellant’s behaviour depicted on CCTV and body-worn recording shows him to be angry and aggressive, consistent with his aggressive demeanour as described by KN in evidence;
5. KN made an immediate complaint to the police following the assault; and
6. The injury depicted in the photographs of KN are consistent with the type of injury described by KN in evidence.
In light of the objective evidence above, the respondent submits that the appellant’s evidence was so glaringly improbable that it could not reasonably possibly be true.[11] There were other, and overwhelmingly sufficient, reasons for rejecting the appellant’s evidence as to how KN’s injury was sustained, beyond the trial Judge’s impermissible finding of recent invention.
Conversely, counsel for the appellant submits that, having regard to the whole of the evidence, the Supreme Court could not be satisfied that the appellant’s evidence was so glaringly improbable as to be incapable of belief. In support of this submission, counsel for the appellant relies on two specific pieces of evidence:
1.In his examination in chief, the appellant made the following relevant concession:
There’s a ramp going down towards the gate to the alleyway. And as I’ve pushed [KN] she’s just – it’s sort of like she threw herself, but she’s landed on the concrete and yeah.
The appellant’s evidence is not to the effect that KN was standing upright and, without any involvement on the part of the appellant, she deliberately threw herself to the ground. Rather, the appellant admits that he pushed KN directly before she threw herself to the ground. This concession, it is submitted, is relevant to the Court’s consideration of whether the appellant’s evidence was so glaringly improbable as to exclude the reasonable possibility of his account being true.
2.The medical evidence within Dr Cordon’s statutory declaration established that KN’s injury was consistent with having been struck, and therefore consistent with either blunt or sharp force trauma. This evidence is generally supportive of both KN’s and the appellant’s accounts.
As there were no other witnesses to the incident, this case turns on issues of contested credibility between the appellant and KN. In cases such as this, it will generally not be possible for the Supreme Court to be satisfied of the appellant’s guilt beyond reasonable doubt due to the “natural limitations” that exist when proceedings are wholly or substantially on the record.[12] Therefore, unless the appellant’s evidence was so glaringly improbable that it could not reasonably possibly be true and so could not give rise to a reasonable doubt as to his guilt, the proviso will not apply.
In Castle v The Queen,[13] the plurality distinguished between a case which turns on the jury’s preference for the evidence of one witness over another witness, and a case where it is apparent to an appellate court that the evidence of a witness is glaringly improbable. The present case is not a case where the trial Judge preferred KN’s evidence over the appellant’s. It is not a situation, for example, where KN gave evidence that she was hit with a mobile phone, while the appellant gave evidence that he pushed KN, causing her to fall and hit her head. Rather, the appellant’s evidence is that KN deliberately threw herself to the ground after she was pushed in order to get him into trouble by causing the injury to herself.
In light of the objective evidence, I find that the appellant’s evidence was so glaringly improbable that it carried no weight at all. The appellant’s evidence that KN threw herself onto the concrete with such force and in such a manner as to cause an injury to her forehead that required five stitches beggars belief. Therefore, it was open to the trial Judge to conclude that the appellant’s evidence was “fanciful” and reject his evidence beyond reasonable doubt.
A failure of process?
Having found that the appellant’s evidence was so glaringly improbable that it could not reasonably possibly be true, it is necessary to consider whether there has been a “significant denial of procedural fairness” at trial which makes it proper to allow the appeal. A significant denial of procedural fairness is occasioned where the irregularity “is such a departure from the essential requirements of the law that it goes to the root of the proceedings”.[14]
In Nudd v The Queen,[15] Gleeson CJ acknowledged that there may be cases where counsel’s “ineptitude is so extreme as to constitute a denial of due process to the client”.[16] His Honour described such cases as “rare”, and in justifying that description referred to two examples where, for no valid reason, counsel fails to cross-examine material witnesses, or does not address the jury.
In Hofer, the Crown impermissibly cross-examined the appellant on matters that defence counsel had not put to the complainants. The questions were largely of the form: “Did you hear that put to [the witness] at any stage?” twice followed by the question, “Are you just making things up as you go along?” In asking these questions, the prosecutor impermissibly suggested that the appellant was lying in his evidence.
The High Court held that the failure of defence counsel to stop the improper cross-examination of the appellant and the consequent suggestions of recent invention did not make the appeal one of those rare cases where there had been a denial of the presuppositions of the trial.[17] The High Court concluded that the Crown’s impermissible contention of recent invention was of little significance in the determination of the real issue in the trial. The flaw in the trial process could not be said to have been such that “the jury has not performed its function”. The difficulty for the appellant, which was overwhelming, lay not in the suggestion that his case involved recent invention, but in his “obviously false” account that the complainants consented to sexual intercourse. Whether the fabrication of his evidence was or was not “recent” was beside the point.
Unlike Hofer, this case did not involve improper cross-examination by the prosecution. Instead, the improper reasoning is attributable to the trial Judge himself. Despite no suggestion of recent invention from the prosecution, the trial Judge made the finding of recent invention of his own motion, without allowing counsel the opportunity to address the issue in evidence or request appropriate directions. This finding ultimately affected the assessment of the credibility of the appellant – a central issue at trial – and ought to have been raised with counsel before his Honour delivered his reasons. In failing to do so, the trial Judge denied the appellant the opportunity to resolve an issue that affected the basis on which he was found guilty. Such a failure constitutes a breach of natural justice and a “failure to observe the requirements of the criminal process in a fundamental respect”.[18]
Consequently, I am satisfied that the trial Judge’s finding of recent invention without appropriate direction renders this case one of those rare cases where there has been such a departure from the essential requirements of the law that it goes to the root of the proceeding. Accordingly, the residual discretion in the proviso is not enlivened and I allow the appeal on this ground.
Ground 6: the learned trial Judge erred in his reasoning about the medical evidence
As to ground 6, counsel for the appellant submitted that the learned trial Judge erred in his reasoning about the medical evidence.
The medical evidence in this case was contained in the statutory declaration of Dr Rael Paul Codron. Dr Codron did not examine KN, but provided the statutory declaration based on notes made by the treating doctor. His statutory declaration was tendered by consent and stated:
1. HISTORY: The patient states she was struck to on the head and the right chest wall (sic).
....
4. INJURIES: The patient sustained the following injuries:
- Laceration to left side of forehead. Full skin thickness, 1.5cm
….
5. INURIES: Injuries are consistent with the history provided.
[Emphasis added.]
The history provided was that the complainant was struck with a mobile phone which was thrown at her.
After reviewing the medical evidence, the trial Judge made the following findings:
KN’s account is supported by her immediate complaint to the police, and medical evidence. The injury sustained is consistent with a blunt or sharp force, including being struck by a mobile phone. [Emphasis added.]
Counsel for the appellant submits that this factual finding is unreasonable and not supported by the evidence for the following two reasons.
First, the evidence in the statutory declaration is not sufficient to establish that the injury is consistent with the force being applied according to KN’s evidence. The medical evidence is only to the effect that the injury is consistent with having been struck, and therefore consistent with either blunt or sharp force trauma. It does not establish the extent of the force required to cause an injury of the kind observed. Nor does it establish whether it is consistent with a light object, such as a mobile phone, being thrown.
To be supportive of KN’s account, counsel for the appellant submitted that the medical evidence needed to establish that the injury was consistent with a blunt or sharp force trauma from a light object that had been thrown. It did not do so, and the trial Judge’s finding that it did is unreasonable and not supported by the evidence.
Second, the medical evidence is neutral as between the competing versions of events advanced by both parties. It goes no further than supporting the proposition that the injury was caused by blunt or sharp force trauma. The medical evidence did not support one version over another and the trial Judge was in error to rely on it as doing so. By relying on the medical evidence in support of the KN’s account, the trial Judge misused the medical evidence to bolster the credibility of KN and corroborate her version of events to the detriment of the appellant’s.
Respondent’s submissions
The respondent submits that the trial Judge’s reliance on the medical evidence in Dr Codron’s statutory declaration was limited to establishing that the injury sustained by the complainant was generally consistent with KN’s account of being “struck to/on the head”.
This history was similarly described by the trial Judge in an earlier passage of his reasons as follows:
At 11:40am on 15 June, KN was seen by medical staff at the Tennant Creek Hospital. She gave a history of being struck on the head, and it is the doctor’s opinion a head injury constitutes harm within the meaning set out in the Criminal Code. [Emphasis added.]
To be supportive of KN’s account, the medical evidence did not need to descend into detail or comment on the different modes of being struck, or consider alternative ways in which the injury might have been sustained beyond the history given. It needed only be consistent with KN’s evidence of “being struck on the head”.
The appellant’s account had not been put to the treating doctor for comment and, as a result, the statutory declaration did not include an assessment of whether the injury sustained was also consistent with KN throwing herself to the ground. In those circumstances, the appellant could not rely on the medical evidence to support his version of events and it was not open to the trial Judge to comment on the consistency between the medical evidence and the appellant’s account.
The respondent also submits that, at the time the trial Judge made the impugned statement in his reasons, it was evident that his Honour had already rejected the appellant’s account beyond reasonable doubt. The trial Judge essentially engaged in a Liberato exercise by carefully scrutinising the evidence of KN before finding the charge proved beyond reasonable doubt. In doing so, the trial Judge was entitled to have regard to the medical evidence in support of KN’s account.
Consideration
I accept the appellant’s submission that the medical evidence is neutral. It is capable of supporting both parties’ version of events. The evidence is only to the effect that the complainant’s injury is consistent with having been hit by either a blunt or sharp object (which could be the result of either a mobile phone being thrown or KN throwing herself to the ground and striking her head). Consequently, it was not open to the trial Judge to find that the evidence supported KN’s version of events to the detriment of the appellant’s version.
I do not accept that the trial Judge had already dismissed the appellant’s evidence beyond reasonable doubt before relying on the medical evidence in support of KN’s account. When the impugned statement is read in the context of his Honour’s reasons below, it is apparent that the trial Judge rejected the appellant’s evidence only after referring to the medical evidence.
Obviously there is a substantial and significant conflict between the account given by KN and the [appellant]. KN says she was hit by the [appellant] throwing the mobile phone at her, while the [appellant] says KN’s head injury was caused by her striking her head on the concrete after she threw herself down. KN’s account is supported by her immediate complaint to the police, and medical evidence. The injury she sustained is consistent with a blunt or sharp force, including being struck by a mobile phone.
…
It is fanciful to accept that KN threw herself onto the concrete, causing the injury depicted… I do not accept the evidence on this point as a reasonable possibility, and I reject it. [emphasis added]
It is also apparent from the first three sentences in the passage above that the trial Judge used the medical evidence to make an implicit comparison between the two conflicting versions of events, despite the absence of evidence allowing the Court to do so. The trial Judge acknowledged that there was a “substantial and significant conflict” between the two accounts and summarised each account accordingly. The trial Judge then proceeded to use the medical evidence to assist in determining how the injury was sustained. In doing so, the trial Judge erroneously relied on the medical evidence as corroboration of KN’s version of events as against the appellant’s.
While I accept that the final sentence of the impugned statement above accords with the evidence provided in the statutory declaration, it does not overcome the trial Judge’s erroneous finding that the medical evidence supported KN’s account. In making this finding, the trial Judge misused the medical evidence to bolster the credibility of KN and weigh in favour of KN’s version of events. Such a finding is unreasonable and not supported by the evidence. Accordingly, I allow the appeal on ground 6.
Although the appellant’s version of events may be unbelievable, that does not mean that the complainant’s version of events must be accepted. The appellant does not bear the onus of proof. The findings of the trial Judge that relied on impermissible reasoning mean that the appellant’s conviction for aggravated assault with a mobile telephone cannot stand.
Appeals against sentence
Background
On 19 August 2021, the appellant entered into a bail agreement for the charge of aggravated assault the subject of LCA 2 of 2022 (22118596). The bail agreement included a condition that the appellant was not to consume alcohol.
On 16 September 2021, the appellant attended the Tennant Creek Memorial Club and consumed an unknown amount of alcohol. This conduct constituted a breach of his bail for the offence of aggravated assault with a mobile phone.
During the evening on 16 September 2021, the appellant punched LH to her head once using his left hand. He did so without warning or provocation. The punch cause LH’s head to rock backwards and her to step back.
Police arrested the appellant and subjected him to a breath analysis that showed a blood alcohol reading of 0.141.
On 20 October 2021, the appellant entered pleas of guilty to one count of engage in conduct that resulted in a breach of bail contrary to s 37B of the Bail Act1982 (NT), and one count of aggravated assault upon LH contrary to s 188(1) and (2) of the Criminal Code.
On 17 November 2021, after allowing a discount of 25 percent for the appellant’s guilty pleas, the Local Court Judge convicted the appellant and sentenced him to ten months’ imprisonment for the aggravated assault upon LH. In error, he sentenced the appellant to ten days imprisonment for engaging in domestic violence instead of breach of bail. His Honour also sentenced the appellant to four months imprisonment for the crime of aggravated assault on KN. The two sentences imposed for the offences committed at the Memorial Club were made cumulative on each other, and cumulative on the sentence of four months imprisonment imposed for the aggravated assault the subject of the appeal against conviction. That gave a total sentence of 14 months and ten days’ imprisonment commencing on 17 September 2021. The sentence was suspended after the appellant served five months in prison, with an operational period of 14 months. During the operational period, the appellant was not to commit another offence punishable by a term of imprisonment.
The appellant appealed against the sentence imposed in error for breach of a domestic violence order, the sentence of ten months imprisonment imposed for aggravated assault upon LH, the cumulation of those sentences on each other and the sentence of four months imprisonment imposed for the aggravated assault with a mobile phone.
Breach of Bail
The grounds of appeal against the sentence of ten days imprisonment for breach of a domestic violence order are that the learned trial Judge: (i) sentenced the appellant for the incorrect offence; and (ii) erred in not ordering some concurrency with the sentence for aggravated assault committed at the same time.
The appellant submits that there should have been some concurrency in the two sentences imposed for the offences committed at the Memorial Club because (i) the two offences occurred at the same time; (ii) the consumption of alcohol contributed to the assault; and (iii) alcohol was the relevant contributing factor to both offences. In the circumstances, there was no basis for the trial Judge to make the two sentences wholly cumulative on each other and the sentence imposed for the aggravated assault with the mobile phone.
The most likely explanation for the trial Judge’s failure to make any order for concurrency is that his Honour erroneously sentenced the appellant for a breach of a domestic violence order, rather than a breach of bail. In sentencing the appellant to the ten days imprisonment, the trial Judge mistakenly referred to the offending as follows:
In regard to the assault upon LH on 16 September, in relation to that on the breach of domestic violence order on count 2, you are convicted and sentenced to 10 days’ imprisonment.
While breaches of bail and breaches of domestic violence orders often call for similar sentences where the prohibited conduct is similar, there is no power to order a sentence for a breach of a domestic violence order to run concurrently with a sentence for assault.[19] As a result, the appellant submits that the trial Judge sentenced the appellant on the erroneous basis that he could not make any order for concurrency between the sentences imposed for the two counts. Not only was such a disposition available, but the factual circumstances of the offending were such that there ought to have been an order for some concurrency.
While the respondent accepts that the trial Judge incorrectly referred to the offending as a breach of a domestic violence order, the respondent submitted that the reference to a breach of a domestic violence order was a ‘slip’ rather than a substantive error. Consequently, the respondent asks the Court to refer the sentencing appeal back to the trial Judge for correction under s 112 of the Sentencing Act. Such a referral would enable the trial Judge to state whether he made the order for cumulation under s 121(7) of the Domestic and Family Violence Act or reflected his view of the totality of the offending.
Consideration
On 21 August 2022, I allowed the appeal against the sentence imposed for breach of a domestic violence order and made the orders set out at [5] above. My reasons for doing so are as follows.
As to the sentence of ten days imprisonment imposed for the offence of breaching a domestic violence order, it was common ground between the parties and it is plainly evident that the trial Judge sentenced the appellant for the wrong offence. The offence committed by the appellant was breach of bail not breach of a domestic violence order.
In assessing whether the trial Judge misspoke or genuinely sentenced the appellant for a breach of a domestic violence order, it was necessary to consider the context in which his Honour delivered the reasons for sentence.
The Local Court is an extremely busy court with full listing schedules. Local Court Judges often hear several matters involving breaches of domestic violence orders a day. In the circumstances, it is reasonable to infer that his Honour thought the matter before him was a drunken assault involving breach of a domestic violence order. Such an inference explains the order for accumulation in circumstances where the Local Court would ordinarily order some concurrency.
In the circumstances, I found that the reference to the breach of domestic violence order was not a slip in the announcement of the sentencing remarks but an erroneous mistake. The trial Judge sentenced the appellant on the erroneous belief that the breach in question was that of a domestic violence order. In doing so, the trial Judge complied with the mandatory accumulation requirement under s 121(7) of the Domestic and Family Violence Act and ordered that the sentences be served wholly cumulatively on each other. He erred in doing so.
Consequently, I allowed the appeal in respect of the sentence of ten days imprisonment for breach of a domestic violence order. I set aside the sentence of ten days imprisonment for breach of a domestic violence order, sentenced the appellant to ten days imprisonment for breach of his bail, and ordered that the ten days’ imprisonment be served wholly concurrently with the sentence of four months’ imprisonment imposed for the aggravated assault on KN.
The appellant did not submit that the sentence of ten days imprisonment was excessive. Rather, the appellant submitted that there should be some concurrency between this sentence and the other sentences. I accepted the appellant’s submissions and made the sentence of ten days imprisonment wholly concurrent with the sentence of four months imprisonment that the trial Judge imposed for the assault on KN. The bail that the appellant breached was granted for the offence of aggravated assault committed against KN. In my opinion a total sentence of four months imprisonment justly reflects the totality of that offending.
As a general rule, except in exceptional circumstances, where a number of offences are closely related, cumulative penalties should not be imposed.[20]
As the Court of Criminal Appeal observed in Hooton v The Queen:[21]
Section 50 of the Sentencing Act creates a prima facie rule that terms of imprisonment are to be served concurrently unless the court “otherwise orders”. However, there is no fetter upon the discretion exercised by the court and the prima facie rule can be displaced by a positive decision. Generally speaking, a court will not impose wholly cumulative sentences for a series or offences that are of a similar character or ordinarily associated and which simply represent facets of the one course of conduct. An assessment must be made in each case as to the appropriate response to the offending in all the circumstances. Consideration of the extent to which the offences are separate and independent, or, alternatively, overlapping is required. If the offences are closely related and interdependent that may lead to a conclusion that they arise out of the one transaction and require concurrency. Each case must depend on its own facts.
Reasonable minds may differ as to the appropriate degree of concurrency or cumulation. The overriding concern is that the sentences for the individual offences and the total sentence imposed be proportionate to the criminality in each case.[22]
Assault on LH
The appellant also appealed against the sentence of ten months’ imprisonment imposed for the aggravated assault upon LH on the sole ground of manifest excess. I rejected the appeal on 12 August 2022.
The appellant submitted that, in all of the circumstances, and after a discount of 25 percent on account of the appellant’s guilty plea, a sentence of ten months’ imprisonment is manifestly excessive. The appellant made this submission on the basis of: (i) the appellant’s otherwise good character (excluding the other offending before the Court); (ii) the appellant’s good work history; (iii) the spontaneous nature of the offending; (iv) the absence of evidence of ongoing harm or significant harm to the victim; and (v) the short duration of the offending.
The appellant accepted that the assault warranted a term of imprisonment. However, given the nature of the offence and the lack of relevant priors on behalf of the appellant, it was submitted that the assault warranted a shorter term; and a sentence of ten months’ imprisonment is outside the appropriate range in the circumstances of this offence.
Consideration
The principles governing manifest excess are well known. In the absence of specific and identifiable error, the appellant must show that the sentence was clearly and obviously, and not just arguably, excessive.[23]
In this case, assault was aggravated by the facts that (i) the victim suffered harm; (ii) the victim is a female; (iii) the appellant is a male; and (iv) the victim was incapable of defending herself. The maximum penalty for this offence is imprisonment for five years.
The offending is serious. At the time of the offending, the appellant was on bail for the assault against another female, KN, which he committed about three months before this offence and the appellant once again engaged in drunken violence against a domestic partner. The offending was unprovoked, brazen and committed in a public setting.
The appellant has a limited criminal history. However, he has two previous convictions for breaching domestic violence orders in 2018. As a result of these breaches, the appellant has lost some entitlement to leniency.
While I accept that the sentence of ten months’ imprisonment is towards the upper end of the range, the sentence is not so excessive as to fall outside the permissible range of sentences for such offending, having regard to the aggravating factor that the assault involved.
Consequently, I found that the sentence imposed for the assault upon LH was within range and not manifestly excessive. Accordingly, I dismiss the appeal against sentence on this ground.
Orders
1.The appeal against conviction for aggravated assault with a mobile phone on File No. 22118596 is allowed.
2.The appellant’s conviction of the crime of aggravated assault on KN with a mobile telephone is set aside.
3.The sentence of four months’ imprisonment for the crime of aggravated assault on KN is set aside.
4.File No. 22118596 is referred back to the Local Court and the appellant is to be retried for the crime of aggravated assault on KN with a mobile telephone by a different Local Court Judge.
________________________________
[1] Swann v Mosel [2014] NTSC 43 at [3] per Barr J; SB v Heath [2017] NTSC 13 at [10] per Mildren AJ, citing Federal Commissioner of Taxation v Arnhem Air Engineering Pty Ltd (1987) 90 FLR 140 at 142 per Asche J.
[2] SB v Heath [2017] NTSC 13 at [13] per Mildren AJ, citing Federal Commissioner of Taxation v Arnhem Air Engineering Pty Ltd (1987) 90 FLR 140 at 142 per Asche J.
[3]SB v Heath [2017] NTSC 13 at [13] per Mildren AJ; Isles v Lyons [2016] NTSC 11 at [3] per Mildren AJ.
[4]Hofer v The Queen [2021] HCA 36 at [33] per Kiefel CJ and Keane and Gleeson JJ; citing R v Manunta (1989) 54 SASR 17 at 23 per King CJ.
[5] (1989) 54 SASR 17 at 23 per King CJ.
[6] R v Costi (1987) 48 SASR 269; Brown v R [1980] Tas R 61 at 75; and Allied Pastoral Holding Pty Ltd v Commissioner for Taxation [1983] 1 NSWLR 1 at 26.
[7] Hofer v The Queen [2021] HCA 36 at [42] per Kiefel CJ and Keane and Gleeson JJ.
[8] MLW v The Queen [2022] NTCCA 2 at [33] per Grant CJ, Southwood and Brownhill JJ.
[9] [2022] NTCCA 7.
[10] RH v The Queen [2022] NTCCA 7 at [108]–[109] and [111]–[113] per Kelly, Blokland and Brownhill JJ.
[11] RH v The Queen [2022] NTCCA 7 at [111] per Kelly, Blokland and Brownhill JJ; Hofer v The Queen [2021] HCA 36 at [57] per Kiefel CJ and Keane and Gleeson JJ.
[12]Orreal v The Queen [2021] HCA 44 [41] per Gordon, Steward and Gleeson JJ, and at [20] per Kiefel CJ and Keane J.
[13] (2016) 259 CLR 449 at 472 at [66] per Kiefel, Bell, Keane and Nettle JJ.
[14] Wilde v The Queen (1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ.
[15] (2006) 80 ALJR 614.
[16] Nudd v The Queen (2006) 80 ALJR 614 at 621-622 [19] per Gleeson CJ.
[17] Hofer v The Queen [2021] HCA 36 at [74] and [76] per Kiefel CJ and Keane and Gleeson JJ.
[18] Hofer v The Queen [2021] HCA 36 at [123] per Gageler J.
[19] Domestic and Family Violence Act 2007 (NT) s 121(7).
[20] Brown v Lynch (1982) 15 NTR 9 at 11-12 per Forster CJ.
[21] [2011] NTCCA 2 at [13] per Riley CJ, Southwood and Barr JJ.
[22] Murphy v The Queen [2005] NTCCA 15 at [26] per Mildren, Riley and Southwood JJ, Miles v The Queen [2001] NTCA 9 at [36] per Mildren, Bailey and Riley JJ.
[23]Rigby v Benfell [2020] NTCA 9 at [42] per Grant CJ, Blokland J and Graham AJ.
0
23
10