Glynn v The Queen

[2020] NSWCCA 347

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Glynn v R [2020] NSWCCA 347

Hearing dates:

18 November 2020

Date of orders:

17 December 2020

Decision date:

17 December 2020

Before:

Hoeben CJ at CL; Price J; Fagan J

Decision:

(1) Appeal upheld.

(2) The appellant’s conviction and sentence are quashed.

(3) List the case for mention at the District Court at Sydney on 22 January 2021 at 9:30am.

Catchwords:

CRIMINAL LAW – appeal against conviction – jury verdict of guilty to an alternative count of recklessly causing grievous bodily harm – Crown concession of error by trial judge in refusing to admit a video into evidence – whether proviso should be applied – whether oral testimony contrary to the Crown case was obviously false – unnecessary to consider whether case was extreme – powerful prosecution case – credibility of witnesses was crucial – witness’ credibility undermined by evidence of police officer – witness credibility supported by the video – appellant denied fair chance of acquittal – new trial ordered

Legislation Cited:

Crimes Act 1900 (NSW), ss 33(1)(b), 35(2)

Criminal Appeal Act 1912 (NSW), s 6(1)

Evidence Act1995 (NSW), ss 38, 165(2)

Cases Cited:

Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; 253 A Crim R 126

Hofer v R [2019] NSWCCA 244

Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7; 271 A Crim R 245

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81; 158 A Crim R 133

Category:

Principal judgment

Parties:

Robert Glynn (Appellant)
Regina (Respondent)

Representation:

Counsel:
A Chhabra (Appellant)
M Kumar (Respondent)

Solicitors:
E Rowe (Appellant)
Solicitor for the Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2015/00182306

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 268

Date of Decision:

16 April 2020

Before:

King SC DCJ

File Number(s):

2015/00182306

Judgment

1. THE COURT: On 5 November 2019, Robert Glynn (“the appellant”) was arraigned on an indictment charging him with causing grievous bodily harm to Tom Bablis (“the complainant”) on 20 June 2015 at Earlwood contrary to s 33(1)(b) of the Crimes Act 1900 (NSW) (“count 1”). There was an alternative count of recklessly causing grievous bodily harm to the complainant contrary to s 35(2) of the Crimes Act (“the alternative count”). The appellant pleaded not guilty to each count.

2. On 18 November 2019, the jury returned a verdict of not guilty to count 1 and a verdict of guilty to the alternative count. He was sentenced to a term of imprisonment of 2 years and 6 months with a non-parole period of 1 year and 3 months to commence on 12 April 2020 and to expire on 11 July 2021. The balance of the term of 1 year and 3 months is to commence on 12 July 2021 and is to expire on 11 October 2022.

3. The appellant appeals his conviction on the following grounds:

“Ground One: His Honour erred in granting the prosecution leave to cross-examine Cassandra Glynn, in accordance with s. 38 Evidence Act 1995, without first considering the matters set out in s. 192 Evidence Act 1995;

Ground Two: His Honour erred in refusing to admit the video described as “2 Cassandra Glynn giving statement”;

…

Ground Five: A miscarriage of justice arose from the failure to direct the jury that the evidence of the complainant Bablis may be unreliable, pursuant to s. 165 Evidence Act 1995, because it was not tested by means of cross-examination.”

4. The Notice of Appeal identifies five grounds but as Grounds 3 and 4 were not pressed on the hearing of the appeal it is unnecessary to recount them.

Ground 2 conceded by the Crown

5. The Crown conceded that the trial judge erred in refusing to admit into evidence a video that the appellant sought to tender during his evidence in chief. However, the Crown contended that notwithstanding the error no substantial miscarriage of justice has occurred and the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied.

6. Cassandra Glynn (“Ms Glynn”) gave evidence of her mother taking a video of her handing photos of her injuries to Constables Connor and Hubbard during which the police officers were said to have acknowledged the bloody fingers.

7. The Crown accepted that in the video, the appellant can be heard saying “you note the photos and you acknowledge the bloody fingers”. Constable Hubbard is heard to say “yes”.

8. The difficulty for the trial judge was that the appellant’s counsel withdrew on the first day of the trial and his solicitor on the second day. The appellant represented himself until the seventh day of the trial when Mr Doyle of counsel appeared for him. One of the consequences of the appellant’s self-representation was that the contents of the video were neither put to Constable Connor in cross-examination nor did the appellant seek to tender the video during Ms Glynn’s evidence. Another difficulty was that Constable Hubbard had not been required to give evidence in the trial.

9. The Crown accepted that the trial judge’s decision in rejecting the appellant’s application to have the video admitted into evidence on the basis that the prosecution had not challenged the injuries sustained to Ms Glynn’s fingers and the video was not relevant was incorrect. The Crown Prosecutor led evidence during the trial from Constable Connor that he did not remember seeing injuries to Ms Glynn’s fingers and if he was shown an injury his usual procedure would have been to photograph an injury. Furthermore, the Crown Prosecutor cross-examined Ms Glynn on Giuseppe Colubriale’s observation that she did not have bloodied fingers at the scene. The Crown further accepted that the Crown Prosecutor confirmed the existence of the injuries was a fact in issue during his closing address when he said:

“What this witness did make constant reference to were cuts to her fingers. She claimed to have shown them to Constable Connor. Constable Connor was the police officer who gave evidence in this trial and he was the police officer who assisted Cassandra Glynn to compile her statement. He also witnessed it. When he gave evidence he had no recollection of being shown a cut to the fingers of Cassandra Glynn as she claimed, he had no recollection of being supplied with photographs of Cassandra Glynn’s fingers.

He did however clarify this ladies and gentlemen, he said that if he had been shown an injury by Ms Glynn he would not rely on her to supply photographic evidence obviously because it’s the job of police to gather relevant evidence, not the job of witnesses. Constable Connor was also adamant that if he had been shown an injury on that day he would have immediately i.e. there and then, have obtained his own photos of the injury.”

10. This Court is not obliged to accept the Crown’s concession of error by the trial judge but in the present case, the concession has been appropriately made. Whilst we appreciate that the trial judge had a difficult task in ensuring that the trial proceeded efficiently with the appellant representing himself before the jury, in our respectful opinion, Constable Connor should have been re-called and Constable Hubbard called to give evidence so that the contents of the video could be put to them.

11. The principal matter for determination is whether, notwithstanding the error, no substantial miscarriage of justice actually occurred. It is this Court’s obligation to undertake that task on the whole of the record which normally includes the fact that the jury returned a guilty verdict, but in the present case the Crown submits that this Court will be satisfied that guilt has been proven beyond reasonable doubt, not on the verdict, but on its own conclusion that the oral testimony in the trial given by the appellant, Ms Cassandra Glynn and Mrs Candace Glynn (“Mrs Glynn”) is obviously false.

12. Before proceeding with the arguments advanced by the parties, it is convenient to summarise the evidence in the trial.

The evidence

13. The following summary of the evidence is drawn from the detailed summary contained in the Crown’s Summary of Trial (Part A) with which Mr Chhabra, the appellant’s counsel, informed this Court that he had no difficulty with its accuracy.

Background

14. The complainant was 81 years old at the time of the offence and died prior to the trial on 11 August 2019, His death was unrelated to the appellant's offending. He lived with his wife at 6 Watkin Avenue, Earlwood and had been neighbours with the appellant who lived at 2 Watkin Avenue for about 15 years prior to the offending.

The Crown Case

15. Senior Constable Feeney gave evidence that on 20 June 2015 she was performing general duties with Constable Rutzou. At 2:14pm there was a broadcast regarding an assault at 6 Watkin Avenue. At 3:45pm Senior Constable Feeney and Constable Rutzou arrived and observed paramedics at the scene. The complainant was sitting on a chair in his garage. His face was injured, with dried blood covering his nose, bruising to both eyes, a small amount of blood seeping out of his face, and his legs were shaking. He was disorientated and scared. Paramedics assessed him and took him to hospital.

16. Senior Constable Feeney’s Notebook contained a transcribed version of the complainant’s statement which was read to the jury. The summary of the complainant’s statement made on 20 June 2015 read:

“The complainant lived at 6 Watkin Avenue for 35 years with his wife. He did not have any real contact with the appellant until the day of the incident. The complainant arrived home at 1:30pm and could not drive into his driveway as there was a branch blocking him. The complainant recognised the branch from the appellant’s house and saw the appellant out the front of his house with his daughter. The complainant got out of his car, picked up the tree branch and walked over to the appellant. He said to the appellant, “Why did you put this bloody tree branch in my driveway?” The appellant replied, “Ah, okay, you’re swearing at me, hey.” The complainant responded, “I’m not swearing at you.” The appellant then clenched his fist and punched the complainant in the face several times. The complainant dropped the branch. The appellant then picked up the tree branch and hit the complainant several times in the face, causing the complainant to fall to the ground on his hands and knees. The complainant could not recall how many times the appellant hit him. The appellant then returned to his house and a few neighbours helped the complainant go inside his house. A neighbour called police. When the appellant hit the complainant, he felt immediate pain and his face was bleeding. He did not give the appellant permission to assault him.”

17. Constable Rutzou took photos of the complainant’s injuries and spoke to potential witnesses. The officers then walked to the footpath outside 4 Watkin Avenue. There they saw the large tree branch that was used in the incident. Constable Rutzou took photos of the branch.

18. The appellant was arrested the evening of 20 June 2015. On 23 June 2015, at approximately 1:45 pm, Senior Constable Feeney attended the appellant's home after being told by the appellant that the complainant assaulted his daughter. Senior Constable Feeney did not take a statement from the appellant's daughter, Cassandra Glynn. The appellant's wife arrived home and asked Senior Constable Feeney and her partner to leave the home.

19. During cross-examination, Senior Constable Feeney described the street the appellant and complainant lived on as a crescent. Their houses were situated on the eastern side. The bend in the road begins after the appellant's home and one would have to come past the appellant's home to be able to see around the bend and to the end of the street. There is a street that goes off to the right opposite 2 and 4 Watkin Avenue. There were building works going on at 4 Watkin Avenue at the time of the offences.

20. Senior Constable Feeney did not obtain a report from the paramedics. At the time, she did not know it was standard practice to do so. After seeing the exhibits, she continued to confirm that the complainant had bruising on his right eye.

21. On 23 June 2015, when Senior Constable Feeney went to 2 Watkin Avenue, she could not recall whether the appellant's daughter Cassandra Glynn was there.When she arrived, Senior Constable Feeney was not aware that Ms Glynn had given a statement on 21 June, she was told by the appellant on 23 June. She read Ms Glynn's statement after at the station. If she had known about Ms Glynn's statement, she would not have gone to the appellant’s house on 23 June. The appellant had not directly sought to give a statement nor had one ever been taken from him, he did though speak to Senior Constable Feeney about the incident. No conversations with the appellant were recorded in official her notebooks. She did not think any other officers had taken a statement from the appellant.

22. In a conversation after 20 June, the appellant told Senior Constable Feeney that the complainant injured him and assaulted his daughter. He did not mention the branch. The conversation was not recorded in her notebook nor put into a formal statement. Had there been a statement, it would have been contrary to the complainant's account.

23. She used hand gestures when giving evidence to indicate the size of the branch. The estimated length was about 1.5 metres. She could not determine where the tree branch came from. Senior Constable Feeney did not look around the appellant's property to determine if it originated from there.

24. The complainant gave two statements, one at his home on 20 June and the second at Ashfield police station. The complainant said he had known the appellant for about 15 years, though had not had any real contact with him until the day of the incident. Senior Constable Feeney did not seek any evidence of their relationship. The complainant told her that he had many disputes with the appellant. After taking the complainant's statement, Senior Constable Feeney had spoken to him on other occasions, though no conversations were recorded. He told her one of the disputes he had with the appellant was regarding some property.

25. In the complainant’s first statement he said the tree branch was “from” his neighbour's house and in his second statement the branch was “outside” his neighbour's house. This disparity was not raised with the complainant. Regarding the complainant's statement from 24 June, Senior Constable Feeney confirmed Giuseppe Colubriale (“Mr Colubriale”) was the witness who helped the complainant. She did not know who the complainant’s neighbour was, who Mr Colubriale's father was, nor where they lived.

26. The appellant was not offered to participate in an ERISP when he was arrested. This is because the arresting officers had some operational concerns as to why they should not interview him while he was in custody.

The complainant’s statement

27. The complainant’s statement made on 24 June 2015 was read to the jury:

“On 20 June 2015, at about 1:30pm, the complainant was driving home and noticed a branch stopping him from driving into his driveway; it was the same branch as one outside of the appellant's house. The complainant stopped and exited his car and saw the appellant standing with his daughter out the front of his house. The complainant and appellant walked toward each other. The complainant said, "Why did you put this bloody tree branch in my driveway?” The appellant replied, "Ah, okay you're swearing at me, hey." The complainant responded, “I’m not swearing at you" The appellant then walked closer to the complainant, stopping inches from his face. The appellant's hands were clenched. He was red in the face and was yelling loudly.

The appellant punched the complainant in the face, which made him dizzy. He was then struck again on the face, causing him to the ground fall to his hands and knees. Then the complainant felt something hit his head and body several times. He was dizzy, in pain and could taste blood in his mouth. He did not know how long he was on the ground for. The complainant felt shocked, scared and confused. He could hear the appellant yelling loudly. His neighbour, Mr Colubriale, then helped him up from the ground. The appellant was still standing two metres from the complainant and said, “Why did you hit my daughter?" The complainant replied “I didn’t hit your daughter." Mr Colubriale helped the complainant back to the complainant's garage. The ambulance then arrived, at which time the complainant spoke to the police. He was taken to St George hospital and released at 9:30pm. At the time of giving the statement, he was awaiting test results.

The complainant was scared for his life during the incident and thought the appellant was going to kill him; even after his arrest, the complainant was scared that the appellant would hurt him again. He did not give the appellant permission to hit him and at no point lashed out at the appellant nor had a chance to defend himself.”

Giuseppe Colubriale

28. Giuseppe Colubriale provided a statement in relation to the incident on 21 June 2015. In summary, on 20 June 2015, at approximately 1:30pm, he had picked up his daughter from her work in Dulwich Hill. He was teaching her to drive and they were returning to Earlwood via Watkin Avenue. They drove down Twyford Avenue and turned right into Watkin Avenue. While driving down the hill he noticed a car stopped across the road adjacent to the footpath. His daughter pointed out two men fighting. Mr Colubriale recognised the complainant. He then directed his daughter to stop the car and he got out of the car from the middle of the road, five or six metres away from the appellant and complainant.

29. Mr Colubriale recognised that the complainant was in trouble and that he was trying to retreat. He saw the other person swinging his arms at the complainant. The appellant was making aggressive moves toward the complainant and the complainant was trying to shield his head by putting his palms on the top of his head and was hunching over. The appellant was punching continuously, and his punches were landing on the complainant’s chest area. The complainant was retreating. The appellant also hit the complainant's head with the tree branch; Mr Colubriale could not remember where on the complainant’s head he was struck. Mr Colubriale exited that car and yelled at the appellant, "What are you doing? Stop, what are you doing" as he was punching the complainant. The appellant was swearing obscenities and racial slurs including, "You fucking cunt, dago, wog. You dirty wog. You fucking wog." The complainant was in a daze and asked Mr Colubriale why the appellant put his rubbish in his driveway. Mr Colubriale told him not to worry and took him to his home.

30. The appellant continued to yell and be aggressive. Mr Colubriale said to him, "Shut up, dickhead." The appellant replied, "Oh, you want to have a go at me, too?" to which Mr Colubriale responded, "No, I don't want to have a go at you." At this point the branch was to the appellant’s side on the footpath, Mr Colubriale said to the appellant, “You should think of your family because what you've done here is a chargeable offence." The appellant then picked up the branch and headed towards Mr Colubriale with the stick raised. Mr Colubriale thought he was going to hit him. The appellant’s daughter was asking him to stop and his wife was trying to grab his arm and pull him back. The appellant said, "How would you like it if your daughter was hit by - hit with a stick?" His daughter indicated that she had been hit on the finger. Mr Colubriale could not notice any injury to her finger and did not see any blood. He did not notice any injuries to the appellant.

31. At that point the complainant’s wife came to the balcony and saw the complainant bleeding. She began crying and screaming. Mr Colubriale told the complainant to go inside. The appellant turned and walked away toward his home. The incident predominately occurred out the front of the home between the appellant and complainant (number 4). The complainant had retreated several metres during the altercation.

28. Mr Colubriale took the complainant to his garage where his wife came downstairs. There Mr Colubriale called the police. There was a gash to the top of the complainant’s head and there was a lot of blood coming down on to his face. There was also a cut on the bridge of his nose that was bleeding significantly. His face was very red in the early stage of bruising, particularly around his left eye.

29. When Mr Colubriale first noticed the altercation, he was about five or six metres away and had a clear line of sight with nothing obstructing his vision. He does not wear glasses for long sight. It was a clear, sunny day.

30. In cross-examination, Mr Colubriale said that he grew up on the street and knew the complainant as a neighbour. Mr Colubriale had known the appellant for 10 years, as his daughter Romina Colubriale went to the same school as the appellant’s daughter, Cassandra Glynn. Also, the appellant had lived near Mr Colubriale's office and his parents’ home. Mr Colubriale stated he knew the appellant quite well.

31. Mr Colubriale had turned right from Twyford Avenue into Watkin Avenue and the appellant’s home was on his left; that is when he saw the car blocking the road. He did not recognise it as the complainant’s car. The car was 90 degrees to the footpath and had not crossed the kerb or gutter. Other cars were parked on the street and there was another car parked outside the complainant’s house. The driveway is on the right side of the complainant’s house. Mr Colubriale's daughter stopped the car before passing the car parked out the front of the complainant’s house, more than one car length away from the complainant's car parked on the street. The altercation was occurring directly to their left, immediately beside their car. The altercation happened in the driveway of the home between the appellant and complainant’s home. Mr Colubriale did not see the altercation when coming up Twyford as the location is more to the right and down the hill.

32. Police took 15 to 20 minutes to arrive and did so at about 3:45pm. Mr Colubriale realised after the incident that it was the complainant’s car blocking the road. He could not recall how his daughter's or the complainant’s car were moved from the street.

33. In the absence of the jury, at the beginning of 6 November 2019, the second day of the trial, the appellant’s then counsel, had his instructions withdrawn and Mr Livers continued to represent the appellant in the trial. Then at the end of the second day of the trial, Mr Livers put on the record that his instructions had been withdrawn by the appellant. The appellant elected to represent himself in the trial. The evidence that follows was adduced whilst the appellant was self-represented.

34. The tree branch that he saw being used in the incident was three quarters of a metre and it was not the branch depicted.

35. Mr Colubriale had known the appellant for about 25 years as he lived across the road from his parents. The complainant moved to Watkin Avenue in either 1976 or 1977, and his son and daughter-in-law were very close to Mr Colubriale. He denied being the complainant's lifelong friend and described their relationship as a 'neighbour acquaintance'. Mr Colubriale had never conversed with the appellant, though his father was friendly with the appellant.

36. Twyford Avenue is a wide street from which one could see the entirety of the appellant’s house. Mr Colubriale did not see the complainant walk out of his house with a tree branch and approach the appellant’s daughter Cassandra Glynn. He did not see the complainant swing the branch. When Mr Colubriale arrived, he saw the appellant’s daughter out the front with the appellant, but his wife did not come out the front of the house until later. After she came out, the appellant’s wife asked, "What did my husband do? What did he do?"

37. Mr Colubriale did not see injuries to the complainant's stomach, only to his head. When he was sitting with the complainant in his garage, the complainant had a large 'nick' on the top of his head and on his nose; blood was trickling from both. Referring to the appellant, the complainant in his garage said to Mr Colubriale, "Why does he throw his rubbish in my driveway?" and stated he went to drive into his driveway but there was a branch across it. The complainant’s wife was cleaning his injuries. Mr Colubriale told the complainant not to wipe his injuries as the police would need to see them and he took photos of the complainant's injuries.

38. The complainant spoke broken English. Mr Colubriale did not translate anything for him as he speaks Italian not Greek.

39. Mr Colubriale saw a fight and did not see the complainant throw any punches. After he broke up the fight, the appellant did not throw any punches.

40. He was aware of animosity that the complainant had toward the appellant. The appellant built a three-storey home around 1999 and 2000. At the time, the complainant owned the home next to the appellant’s and the house beside that.

41. Mr Colubriale gave a police statement on his own volition. He was positive he saw a scuffle and that punches were thrown.

42. Romina Colubriale, Giuseppe Colubriale's daughter, did not give a statement to police until the appellant subpoenaed her. Mr Colubriale did not coach her on what to say in the statement.

43. In re-examination, Mr Colubriale confirmed his memory was not “very clear”. The events were fresher in his mind when he gave the statement on 21 June 2015. In his statement, Mr Colubriale observed the appellant hit the complainant over the head with the branch, but could not conclude that based on his memory when giving evidence.

Romina Colubriale

48. Romina Colubriale gave evidence that between 1:30pm and 2pm on 20 June 2015, she was having a driving lesson with her father, Mr Colubriale. Outside 4 Watkin Avenue, she saw two men having what she believed to be an argument. She did not recognise either of the men at that stage. She slowed the car and drew her dad's attention to the argument. After stopping the car, she recognised the appellant, as he lived on her grandparents’ street and she went to school with his daughter. She heard yelling and saw the appellant pick up a branch and hit 'the other man' on the head, who was cowered over and stepping backwards. The appellant was holding the branch with two hands. After the appellant hit the other man with the branch, he threw the stick down. She could not recall at what point her father got out of the car, whether it was before or after the appellant used the stick to hit the other man. After throwing down the stick, the appellant punched the other man with closed fists in the stomach approximately five times. The other man continued to cower and step back, and he was protecting his face with his arms. Ms Glynn was there telling her father to stop. Ms Colubriale's father Mr Giuseppe Colubriale intervened, trying to separate the two men, and then tended to the elderly man, while telling the appellant to move away. She could not remember the appellant doing anything at that point. He did say "I'll burn your house down" but she could not remember at what point that was. At the end of the incident, after the appellant had stopped striking the complainant, the appellant’s wife came out of the house.

49. In cross-examination, Ms Colubriale did not know the complainant, nor had she ever met him; she referred to him as “an elderly old man” in her statement. She confirmed that she knew the appellant, his wife and daughter. She drove down Twyford Avenue and turned right into Watkin Avenue. She did not see the complainant with a stick in his hand at any point. She saw Ms Glynn. She did not see the appellant looking at her. The incident lasted about five or ten minutes. Once she had stopped the car in front of 4 Watkin Avenue, she saw the appellant yelling and arguing with the complainant. She saw the appellant hit the complainant over the head with a stick, drop the stick and then punch him several times. Mr Colubriale tried to stop the appellant by getting in between him and the complainant; facing perpendicular to the pair while they faced each other. There was a lot of yelling. She remained in the car the entire time.

50. Ms Colubriale did not remember at what point she saw blood. Mrs Glynn turned up at the end of the incident. Ms Glynn was present throughout though was not involved, just watching and yelling at her father to stop. Ms Colubriale could not remember a white van being parked in the street. She could not remember what the complainant said.

51. Ms Colubriale would visit her grandparents in Watkin Avenue once or twice a week but had never seen the complainant prior to the incident. She recognised the appellant; she did not recognise the complainant. She was not aware of the complainant’s relationship with her grandparents.

52. Mr Colubriale got out of the car before the appellant began punching the complainant. At one point, Ms Glynn left, but Ms Colubriale did not know where she went as she was focused on the fight. Ms Colubriale could not remember the conversation between the appellant and complainant during the fight. She did not remember the appellant looking at her or talking to her.

53. Mr Colubriale took the complainant to his garage and then moved the car Ms Colubriale was driving to her grandmother's driveway at 7 Watkin Avenue. She did not know who moved the complainant’s car. Ms Colubriale never exited the car. She then remained at her grandparent's home. She did not know what the appellant and his family did after the fight. The next time she saw them was at the police station, though she did not interact with the appellant at that point. Ms Colubriale had never been threatened by the appellant.

54. Ms Colubriale was shown photos of the complainant, but did not remember seeing a cut on the complainant’s nose. She could not remember if she saw any blood on the day. She was certain that she saw the appellant pick up a metre-long stick with both hands and hit the complainant. She did not remember any further details of the stick or its exact size. The photo of the branch was shown to Ms Colubriale and she agreed the branch had three or four different branches, like thin whips. She remembered the appellant bringing the branch from behind and over his shoulder, using two hands and hitting the complainant.

55. In re-examination, Ms Colubriale used the term “fighting” to describe the two men arguing, which was followed by the complainant being punched. The complainant at no point hit or tried to hit the appellant. The complainant was covering his face with his hands, hunched over and cowering. He was in this position the entire time the appellant was hitting him.

Certificate of Dr Low

56. At about 5:15pm on 20 June 2015, whilst Dr Low was working at the Emergency Department at St George Hospital, the complainant was brought by ambulance to the hospital "following an alleged assault by his neighbour in which [the complainant] stated he was struck in the face by a large tree branch, punched in the left eye, and punched multiple times to the abdomen." The examination in the Emergency Department revealed the complainant was alert, co-operative and had stable vital signs, tenderness over left intra orbital region with an associated haematoma, and contusions to the bridge of his nose and posterior scalp. The complainant underwent a CT scan of the brain and facial bones, which showed a minimally displaced left nasal fracture, but no other acute injury. The complainant was treated with simple analgesia and wound dressings. He was discharged on regular analgesia and was advised to attend his general practitioner to follow up the CT scan report. The observed injuries were consistent with the stated history of the assault. The complainant did not lose consciousness and had a full recollection of events.

Constable Rutzou

57. At 3:45pm on 20 June 2015, Constable Rutzou with Constable Feeney attended 6 Watkin Avenue. There was an ambulance and two ambulance officers there when they arrived. The ambulance officers told Constable Rutzou they were called there regarding an assault and that they had assessed the complainant, aged 82 (sic), for head injuries. Constables Rutzou and Feeney went into the complainant's garage and observed him sitting down with injuries to his nose and the top of his head, both with dried blood and blood coming out. The complainant also had purple bruising and swelling to his left eye. Constable Rutzou took 7 photos of the complainant's injuries.

58. Constable Rutzou had a conversation with a witness Mr Colubriale and he told him "I was with my daughter who was practicing her driving. We were driving down Watkin Avenue when my daughter told me to look over there. I saw a guy hitting [the complainant] with a tree branch. He hit him about two times over the head with the branch and then started punching him." Mr Colubriale showed Constable Rutzou where it occurred, outside 4 Watkin Avenue on the footpath. He saw a large tree branch in the driveway of 4 Watkin Avenue. Constable Rutzou asked Mr Colubriale where 'the other man,' meaning the appellant, lived and Mr Colubriale said he was not home and that after the incident he got into his car and left. Mr Colubriale showed Constable Rutzou the appellant’s house, which had no cars in the driveway and appeared to be empty. Mr Colubriale had not seen the appellant come home.

59. Constable Rutzou then returned to 6 Watkin Avenue and observed Constable Feeney taking a statement from the complainant, who after was taken to hospital by the ambulance crew. Constables Rutzou and Feeney went to 4 Watkin Avenue and photographed the branch next to a 180cm star picket that was nearby as a point of reference. The branch was then moved as a member of the public allowed them to use a measuring tape.

Expert Certificate of Dr Koumoulas

60. Dr Koumoulas, a General Practitioner, saw the complainant at 10:39am on 22 June 2015 and formed the opinion that as a result of the assault, the complainant suffered:

• A fractured nose, disruption to his left intraocular lens which would require surgical intervention to have repaired;

• Soft tissue injury to his neck resulting in pain and restriction;

• Probable adjustment disorder with an anxious mood post assault requiring psychological counselling.

Constable Connor

61. Constable Connor prepared a statement on 20 to 27 June 2015 which was read on to the record. At 8:30pm on 20 June 2015, Constable Connor attended the appellant's home with Constable Hubbard. The appellant answered the door and came down the stairs to speak to the officers. A female was with the appellant. The officers placed the appellant under arrest and put him in a police vehicle. They then conveyed him to Campsie police station. Once at the police station, Constable Connor handed the appellant over to other police officers.

62. Constable Connor took a statement from Ms Glynn on 21 June 2015. He could not remember whether she indicated an injured finger or whether she provided him with photos of the injury. In his experience as a police officer, if someone said they had an injury, he would ask to see the injury and take photos of it. Constable Connor did not take any photos of Ms Glynn's hand or body.

63. In cross-examination, Constable Connor said that when he was at the appellant's home he did not attempt to take any statements from the appellant, his wife or daughter; neither did Constable Hubbard. He did not receive a phone call from Ms Glynn stating she was coming to give a statement. Constable Connor had instructions to arrest the appellant at his home on 20 June 2015. He was not aware what had happened earlier in the day, he was just following instructions. When he arrived, Constable Hubbard initially spoke with the appellant. He did not recall the appellant asking to change before being taken to the police station, but he did get changed and Constable Connor witnessed the appellant change his clothes. The police vehicle was parked less than 50 metres from the appellant’s home. The appellant was 'neutral’ and not aggressive or rude.

64. Constable Connor could not remember what Ms Glynn said to him and did not remember her being present. He had never asked the appellant for a statement. Constable Connor was not the officer-in-charge and was not responsible for obtaining statements. Constable Connor was only responsible for arresting the appellant. He did take a statement from Ms Glynn. (T149-151)

Expert Certificate of Professor Coroneo

65. Dr Coroneo is a Professor of ophthalmology, according to his Expert Certificate provided to police for the purpose of the prosecution. The complainant was initially seen at 8:30pm on 29 June 2015 by Professor Coroneo. He had experienced blurring in his left eye as a result of trauma caused by getting hit in the left eye approximately a week prior to the appointment. He had undergone cataract surgery in 2009 on his right eye and 2010 on his left. His left eye unaided was 6/24 and his right was 6/6. The complainant reported that his vision in his left eye was similar to his right prior to the event. The intraocular lens in his left eye was dislocated/subluxated, which was said to be the cause of the reduced vision. This was most likely directly caused by the blow to the left eye. Pressure in the left eye was elevated.

66. On 9 July, Professor Coroneo carried out surgery on the complainant to replace his intraocular lens. His recovery was complicated by elevated intraocular pressure. The complainant was still recovering at the time of Professor Coroneo writing the report and it would take some months for the eyes to settle and determine whether there was permanent loss of sight. On 3 November, Professor Coroneo saw the complainant with an exacerbation of inflammation in his left eye; which can occur following the surgery that the complainant underwent. He required medium and likely long-term treatment to control the inflammation and elevated eye pressure. Both his aided and unaided visual acuities were reduced, and it would be months before permanent damage could be assessed.

67. On 6 July 2015, Professor Coroneo wrote in a medical certificate addressed 'To whom it may concern' that he saw the complainant on 26 June 2015 for an eye examination after being hit. His vision unaided scored 6/5 in his right and 6/9 in his left. His vision acuities aided scored 6/5 in his left and 6/5 in his right. The intraocular pressures in his right eye were 16 and his left 21. The complainant was referred for an ophthalmological assessment.

Cassandra Glynn

68. At 1:55pm on Saturday 20 June 2015, Ms Glynn was on the street of Watkin Avenue outside the house situated between her and the complainant's houses. She was on the way to have lunch with the appellant and his wife, her parents. As she was walking to her car, which was not parked out the front but further down the street, she saw the complainant running toward her at a fast pace. He was holding a tree branch with both hands. He said, "What the fuck are you doing with this tree branch?" the appellant answered, "What? What tree branch? That's not my tree branch.” The complainant kept saying "What the fuck are you doing? This fucking tree branch is fucking yours. Put it in my fucking driveway. What are you doing with this tree branch?" while lifting the branch up and down. The appellant appeared confused. The complainant kept swearing and yelling more and more, and then he swung the branch at the appellant. Ms Glynn at that point was standing in front of the complainant and the appellant was to her right. She did not see the motion that the complainant swung the branch, but it hit her left hand. The branch had sliced her four fingers and a trickle of blood came out. The branch was then on the ground to the side of the complainant and he lunged at the appellant. She did not know how the branch got on the ground.

69. After the complainant lunged at the appellant, he punched the appellant a few times in the face area. The appellant pushed the complainant away with open palms. The complainant slapped the appellant briefly. She described it as a 'tussle’. Mrs Glynn then came out of the house and was screaming "Stop it". At the same time, Mr Colubriale came from the side of the road. At that point the complainant was going for the appellant and Mrs Glynn said, "Leave my family alone."

68. Mr Colubriale got involved and was holding the complainant back as he kept advancing toward the appellant. The appellant’s wife was looking at Ms Glynn's hand. No one was holding the appellant. After they were broken apart, the complainant kept advancing toward the appellant. The appellant said to the complainant "You could have poked my daughter's eyes out”. Ms Glynn, the appellant and her mother went back into their home while the complainant and Mr Colubriale remained on the street. She then took photos of her cuts with her iPod and cleaned the injuries.

69. The police arrested the appellant and at 1am on 21 June 2015 Ms Glynn attended the police station. She could not remember what she did the afternoon of 20 June 2015, but she was home with her parents.

70. In the absence of the jury, the Crown relied on their notice dated 14 October 2019 to cross-examine the witness pursuant to s 38 of the Evidence Act1995 (NSW). The trial judge accepted that the witness’ evidence was unfavourable to the Crown's case and that there were significant differences between her evidence and the contents of her statement that she provided on 21 June 2015. Leave was granted for the Crown to cross-examine Ms Glynn.

71. She referred to the complainant as 'the man’ in her statement. She had never met him previously but knew he took her father to court previously. At the time she gave the statement, she did not know where the complainant lived. She had lived on Watkin Avenue for about 12 years. She confirmed the complainant ran at her, despite him being 81 years old. On the night of 21 June 2015, the police spoke to Ms Glynn about the complainant. At the time of her giving evidence, she had not read the complainant’s statements and did not know he made more than one statement. Ms Glynn was scared when she gave her police statement.

72. Ms Glynn confirmed that the complainant swung the branch in her direction and her hands were in front of her face. The branch made contact with her left hand and one of her fingers was bleeding. The top of the complainant’s head was bleeding before he punched the appellant; she did not know where he had been cut. Ms Glynn told police on the night of the incident that she thought the complainant had cut his own head with the branch. The appellant never punched the complainant with a closed fist, only pushed him with open palms. The appellant never picked up the branch or hit the complainant with it. All Ms Glynn saw was the complainant trying to punch the appellant. The appellant did not injure the complainant, and she believed that he injured himself with the tree branch.

73. Ms Glynn was not aware that the complainant required surgical intervention on his left eye, nor that he had a broken nose.

74. Ms Glynn denied that the appellant was hitting the complainant over the head and that he was crouched over covering his face. She further denied that the appellant dropped the branch and started to swing repetitive punches at the complainant’s chest and abdomen. She stated the complainant was attempting to punch the appellant in the face. Mrs Glynn tried to intervene from behind her, at that point the appellant and complainant had their hands on each other, with the appellant pushing the complainant. Her statement read that the fight had ended by the time her mother came out of the house.

75. She remembered Mr Colubriale come out of the car and try to stop the complainant coming toward the appellant by getting between them. When Mr Colubriale got out of the car and attempted to separate the appellant and complainant, Ms Glynn denied hearing the appellant call the complainant "a fucking cunt, a dago wog." She could not recall whether Mr Colubriale swore at the time. She denied that any point she said, "Stop dad." She denied intervening and stated she was the one who was hit. She could not remember drawing Mr Colubriale's attention to her injured finger but agreed she may have done that.

76. After the altercation, Ms Glynn stayed home with her mother and father. They did not attend the lunch they intended on going to in Leichardt. She did not know whether she heard a knock at the door during the afternoon and denied that she would avoid answering the door thinking her father was in trouble with the police.

77. Ms Glynn gave the police photos of her fingers taken on her iPod and emailed them also to Constable Connor, who also took her statement where she detailed her injuries. She was wearing bandages when she gave the statement. She could not recall whether Constable Connor took photos of her injuries.

78. Ms Glynn could not remember whether she was present when the appellant was arrested, whether he spoke with police or whether he left home with the police. She denied that she was not recalling things to prevent being caught out. She denied lying when giving evidence.

79. In cross-examination, Ms Glynn said the branch that the complainant was holding was about two or three metres long. The branch she remembered was smaller than the one in the defence photo. She had never seen the appellant with the tree branch nor seen it at their home. The first time she saw the tree branch was at the complainant’s front gate. The appellant never touched the tree branch and during the altercation she was in between the complainant and appellant.

80. Prior to the altercation, Ms Glynn had never seen the complainant before. On the day, he appeared angry, with his face scrunched up. He said the word ‘fuck’ non-stop and was red in the face, spitting at the mouth and very ‘pissed off’ about the branch. The appellant appeared scared on the day and was not intimidating or being sarcastic toward the complainant. Neither Ms Glynn nor the appellant swore at the complainant or antagonised him.

81. The complainant approached her and the appellant whilst they were walking to her parents’ white van parked on the street, in front of 4 Watkin Avenue. The complainant had in his hands a “big tree branch and he was running as fast as he could for his age”. The complainant did strike at both the complainant and appellant. Ms Glynn’s hands at that point were over her face and her eyes were open; she felt the tree branch hit her. At that point, it hurt and she was scared. The appellant did not punch the complainant, he pushed him away with open palms. During this, Ms Glynn could not see her mother as she was behind her. Mrs Glynn was following her and the appellant to the car, trailing behind as she had locked up the house before leaving for lunch. She could not recall how far behind her mother was.

82. After being hit with the tree branch, Ms Glynn felt pain in her fingers and saw a trickle of blood roll into her palm. The complainant was also bleeding from his head and was swearing and punching the appellant repetitively, knocking his glasses off his head. The appellant pushed the complainant away and the complainant grabbed the appellant’s hands. Then there was a ‘little slap’ with each other.

83. Ms Glynn had not ever been charged with a criminal offence. Ms Glynn had not read her statement since the day that she gave it. She had not spoken to her parents about the case.

84. The tree branch was shown to Ms Glynn and she confirmed that it was the branch used by the complainant, though it was not in pieces as it was when giving evidence. The complainant ran toward Ms Glynn and at no point threw the branch on to the ground. He was swearing at the appellant. The tree branch hit her fingers and caused her to bleed.

85. Ms Glynn told police about her injuries, gave them a statement about and photos of her injuries. The police did not write down her oral statement. The appellant at that time explained to police what happened on the day, but it was not taped by police. He was then placed under arrest.

86. Constable Hubbard said to the appellant “We handcuff you and we’ll drag you out kicking and screaming." The appellant said to Constable Hubbard “We will be prepared to give a statement, but I don't want to be handcuffed. I don’t want to be arrested. There's two sides of every story. I have my side to tell." Constables Hubbard and Connor acknowledged what Ms Glynn said and her injured fingers. The officers were standing close to Ms Glynn and it would have been unreasonable for them not to hear anything that she said. After that at about 10:30pm, Ms Glynn attended Campsie Police Station with Mrs Glynn, who showed Constable Connor photos of Ms Glynn's injuries and he asked them to email colour copies to him.

87. Ms Glynn was sure that the branch used in the altercation was the one shown to the court and it was over 1 metre long. The photographs taken of the branch were taken by police 15 minutes after arriving at Watkin Avenue, she did not see police take the photo. Six photographs of the appellant’s house were shown to the witness. Regarding the second photo, she confirmed that when coming down the street in a car, one could not see through the hedges. In relation to the third photo, the altercation happened on the footpath in front of the big tree. The third photo depicted the appellant’s home behind the telegraph pole. Ms Glynn had lived in that home for 16 years. Ms Glynn had heard about the appellant taking the complainant to court in 2003 but was not aware of it when it occurred.

88. The complainant swung the branch and punched the appellant, and the appellant pushed the complainant away. Then Ms Glynn saw Mr Colubriale and his daughter pull up. They had pulled up after the fight had finished. She did not know where her mother was at this point. She was behind Ms Glynn as she had locked the house doors.

89. After the altercation, Ms Glynn went to the police station and she gave Constable Connor photos of her injured fingers. Mrs Glynn filmed her giving the photos to the police officer.

90. After the fight, Ms Glynn was at her home with the appellant and her mother. The police knocked on the door at 7:44pm. No police attempted to knock on the door between 2pm and 7:44pm. She was at the house during those times. Ms Glynn took a week off work following the altercation due to the injuries to her fingers.

91. Both Ms Glynn and her mother came from behind the appellant. Mr Colubriale came from the side. The appellant’s glasses fell to the floor after being punched in the face by the complainant. The appellant did not touch the complainant other than to push him backwards. At no point did the appellant pick up the branch. The altercation lasted for about 10 seconds, and it did not last 10 minutes. At no point did the complainant cover his face with open palms on his forehead and upper head. At no point was the complainant on the ground and Mr Colubriale did not pick him up from the ground.

92. Ms Glynn first went to Ashfield police and then attended Campsie police because she wanted the complainant to be charged with assault.

93. In re-examination, Ms Glynn said that she did not know what time she arrived at Ashfield police station nor whom she spoke to there. The police dismissed charging the complainant. Ms Glynn did not return to Ashfield police station.

94. Earlier in her evidence, Ms Glynn did not know whether police attended her home in the afternoon of the altercation. Later in her evidence she was sure that they did not after seeing videos, taken by her mother.

The appellant’s case

97. The appellant met the complainant in 1995 when the appellant built his home. Their relationship was not very good and they had many problems.

98. On 20 June 2015, the appellant left his house through the front door to have lunch with his daughter and wife. He walked to the edge of the hedges and heard his wife lock the front door. He reached the wattle brush in his front yard and he saw the complainant, whom he had not seen for about 12 months prior. The complainant said, "What's this fucking tree?" The appellant responded, “I don't know Mr Bablis." The complainant then said, "You put this fucking tree in my front yard. This is from your fucking front yard." The appellant said to the complainant that he did not know where the branch came from. The complainant was coming toward the appellant, dragging a tree branch which was about 4 metres long. The complainant was very angry and swung the tree branch. The appellant closed his eyes and felt little nicks on his body. The appellant then slapped the complainant on the side of the face, on his ear. The complainant as a result became angrier and they were slapping each other. The appellant in his evidence described it as a 'tussle’ and stated that the complainant was a 'pretty fit guy’. Mrs Glynn came in between the appellant and the complainant and told them to stop. The appellant picked up his glasses from the ground. At that point, Mr Colubriale and Romina's car pulled up. Mr Colubriale got out of the car, he was not running, but was saying "stop" repetitively. The appellant said to Mr Colubriale, "Your dickhead mate he could have - he could have hurt Cassandra. He could have knocked her eyesight out... You know you've got a daughter what's wrong with your dickhead mate? ... I don't give a fuck. ... You're - you're a dickhead too mate."

99. Mrs Glynn told him to stop and said, "Rob don't lower yourself to their level, come back inside." The appellant, his wife and daughter then went back into the house and his daughter's hand was bleeding. The appellant’s wife took photos of Ms Glynn's bleeding hand. They all stayed home that afternoon, during which time no one knocked on the door. At 7:30pm, two police officers arrived at his home and asked to speak about the assault. Both Ms Glynn and the appellant told police their version of events in the appellant's garage. Police asked whether the appellant hit the complainant, Ms Glynn responded, "No, dad just slapped him" and she showed the hand gestures of being slapped. The appellant showed the officers Ms Glynn's injured fingers. Neither police officer wrote in their notebook.

100. The appellant changed his pants and said to his wife and daughter, "I'm being charged, but not arrested." He walked to the police car and the officers did a frisk search on him. At the police station, the appellant called his daughter and asked her to come and make a statement and show the photos of her finger. At no point had Constable Feeney in the four years prior to the trial taken a statement from the appellant. At about 4pm on the day of the incident, the appellant saw a police vehicle in his street, though no police officers attended at his door.

101. The appellant in his evidence raised the prior disagreements he had with the complainant in relation to a building development. He also raised the close relationship between the complainant and Mr Colubriale.

102. Ten minutes after the fight had finished, the appellant moved one of his vehicles in his driveway so the tyres did not get slashed.

103. The appellant had not ever seen the branch and stated that it did not come from his home. The police did not do a DNA test on the branch nor were fingerprints taken.

104. On the night of 20 June 2015, two police officers came to the appellant’s home. They observed his daughter's injured fingers and his own fingers. He gave an oral explanation of the events to police; they did not take notes of what he said. Neither he nor his wife had provided a statement to police. The appellant stated in his evidence that he acted in defence of his daughter on 20 June. He also said in his evidence, "I would not pick up a tree branch and hit another human being. I wouldn't do that.”

105. A car coming down Watkin Avenue would not be able to see where the incident took place until they had come around the bend and had driven past the wattle tree. One could not see where the incident took place when driving up Twyford Avenue, but they would have been able to see the complainant leave his home and walk toward the appellant and where the complainant struck Ms Glynn. If one was driving down Watkin Avenue, they would not have been able to see anything. The appellant saw the Mr Colubriale's car drive around the bend in his peripherals on the day of the incident.

106. Prior to 20 June, there had not been any physical violence between the complainant and appellant.

107. In cross-examination, the appellant said that at times the relationship between the appellant and complainant was hostile, and on the day of the incident the relationship had not improved. Prior to the incident, the appellant had not seen the complainant for 18 months. The appellant did not like the complainant and had antipathy toward him.

108. The appellant disagreed that the complainant was running fast toward him and rather was walking quickly toward him and his daughter prior to the altercation. The complainant had accused the appellant of putting the branch on his driveway and after that, the complainant swung the 4.5-metre-long branch, lifting it above his head. He swung the branch from slightly above his hip to his shoulder in a whipping motion across his body. The appellant was two metres from the complainant and had his eyes closed upon the impact of the branch. The complainant’s swinging action happened very slowly. The appellant did not get out of the way. After the complainant swung the branch, the appellant noticed the blood on the top of the complainant’s head and nose.

109. The appellant agreed that the branch used by the complainant was depicted in the Crown’s photos. The branch depicted in those photos had the remaining branches pointing away from the base. The complainant was holding the base of the branch and the branches coming off the main branch were pointing away from the complainant and toward the appellant in the air. There was no blood on the complainant’s nose or head as he walked toward the appellant.

110. As the complainant swung the branch, the appellant blinked and when he opened his eyes, the branch was on the ground. The appellant did not know how the branch got onto the ground. It was put to the appellant that at no point did he give evidence that the complainant was holding the branch over his left shoulder; though in his evidence the appellant confirmed that the complainant was holding the branch over his left shoulder. He denied that he made up the incident. He stated that he saw the total of the complainant’s action with the branch and that he only blinked for a 'nanosecond’. His eyes never went off the complainant or the branch, and he was not aware that Ms Glynn was next to him at the time.

111. The appellant corrected his earlier evidence that the complainant held the branch above his hip height when he began to swing the branch and confirmed that the complainant had the branch above his left shoulder and swung down.

112. The appellant denied being able to avoid the branch even though it was swung very slowly by the complainant. He did not think the complainant was going to swing the branch. At the point that the branch was swung, the appellant responded by blinking his eyes and holding his hands out. The appellant then noticed the blood trickling from the complainant and assumed he had injured himself. The appellant, his wife and his daughter had not touched the complainant at that point. It was put to the appellant that the smaller branches coming off the main branch were directed toward the appellant and away from the complainant’s head and nose when he swung the branch. The appellant denied this.

113. After this part of the altercation, there was ‘a tussle' between the complainant and the appellant. The appellant slapped the complainant lightly with his right hand's open palm onto the complainant’s left ear. He denied that there was a ‘massive fight'. The appellant pushed the complainant away with open palms and then the complainant punched the appellant on the bridge of his nose. This tussle took place for about three or four seconds until Mrs Glynn intervened; she had run between him and his daughter. Her intervention stopped the tussle. At the point she intervened, the appellant saw the Colubriale's car come around the corner and Mr Colubriale got out of the car and walked toward the complainant. The complainant very lightly punched the appellant on the bridge of the nose with a closed fist, knocking the appellant’s glasses to the ground. During this, the appellant saw Mr Colubriale get out of the car in his periphery.

97. The appellant denied that the complainant’s swinging of the branch was aggressive but rather idiotic. The appellant slapped the complainant three or four times, on his stomach and shoulders, but never slapped his head. He described the action as pushing the complainant away and was not aggressive. The complainant at that point during the altercation was very aggressive and red faced. The complainant at no point covered his face or was hunched over; he was not retreating. The complainant was slapping the appellant back. They were both standing in an upright position, and within the ten seconds, they each slapped the other three or four times.

98. Mr Colubriale told the complainant to calm down and go inside and called the appellant a ’dickhead’. The appellant said to Mr Colubriale "Your mate could have hurt my daughter Cassandra ... You're a dickhead and your mate's a dickhead." Mrs Glynn told the appellant to stop it and said "Don't, don't lower yourself to them".

99. The appellant saw police attend Watkin Avenue at 4:04pm on the day of the altercation. During cross-examination, he did not recall Constable Feeney's evidence nor Constable Rutzou's statement being tendered. Constable Rutzou's statement was read again, which detailed the wounds to the complainant she witnessed. The police attendance and the injuries witnessed were not challenged by the appellant. He did not challenge the injuries that Dr Low examined on the complainant on the evening of 20 June 2015, and those further identified following a CT report. The report indicated that the injuries sustained were consistent with the assault as described by the complainant. Dr Koumoulas' statement was read to the appellant which further stated that the complainant’s injuries were consistent with assault. Professor Coroneo's statement was summarised for the appellant. The appellant could not recall Professor Coroneo’s statement being tendered. The appellant disagreed that Professor Coroneo's assessment was as a result of a blow to the left eye. He agreed that the complainant had a fractured nose, though it was not as a result of him nor Ms Glynn hitting him.

100. The appellant denied acting violently toward the complainant and punching him the face. He denied that the complainant crouched over and put his hands over his face during the altercation. It was put to the appellant that he hit the complainant over the head with the tree branch and then punched him in the chest and abdomen. He denied this. He stated that Ms Glynn did not say a word during the altercation. The appellant denied that the complainant only stopped punching when Mr Colubriale intervened. At this point, the complainant advanced toward Mr Colubriale with the branch over his head. The appellant denied that he was restrained by his wife and daughter.

101. The appellant denied that his wife said "What did my husband do?" and stated that she said "What's going on? What's going on? Stop it, stop it." Mrs Glynn said "What's going on?" to the complainant, not to the appellant. During cross-examination, the appellant denied that his wife arrived after the incident and stated that she was present during the altercation. He later stated that he did not know whether she was present or not during the altercation. He then said that Mrs Glynn arrived at the same time as Mr Colubriale and "put a stop to it". Mrs Glynn came in between the appellant and the complainant. Mr Colubriale was near the complainant on the grass next to the footpath. Mr Colubriale in his evidence indicated that he was standing in between the complainant and the appellant, this was not challenged by the appellant and he could not remember challenging Mr Colubriale's evidence.

102. The appellant denied seeing the complainant's blue BMW car.

103. During the sixth day of trial, on 12 November 2019, the appellant indicated to the Court in the absence of the jury that he had instructed Mr Doyle of counsel and sought an adjournment during the appellant's evidence in chief (T294). The appellant remained self-represented until the end of his cross-examination and Mr Doyle represented him from the beginning of the seventh trial day on 13 November 2020.

Mrs Glynn

121. At the time of giving evidence, Candace Glynn had been married to the appellant for 29 years and had two daughters together with him. On 20 June 2015, she was locking up her home at 2 Watkin Avenue. She was a couple of metres behind the appellant and her daughter Cassandra and they were all walking toward their car which was parked out the front of 6 Watkin Avenue. She heard yelling and heard someone say "Come inside Tom". She then saw a man running with a tree branch out of his front gate toward her husband and daughter, saying, "This fucking tree branch, is this your fucking tree branch? What's with this fucking tree branch?" She recognised the man with the branch as the complainant. The appellant said to the complainant, "What, what tree?"

122. Mrs Glynn saw the complainant raise the branch and swing it back and forth in the air and then drop the branch on the ground. While he swung the branch, she saw the appellant and Ms Glynn raise their hands in the air. She described the branch as "massive". The defence photo of the tree branch was shown to Mrs Glynn, and she confirmed that it was the branch she saw the complainant holding. When it was swung by the complainant, it hit Ms Glynn, the appellant and the complainant. It hit Ms Glynn and the appellant’s fingers as they put their hands up as the branch was swung. The complainant then dropped the branch at which point, Mrs Glynn saw blood trickling down the complainant’s head and nose. The appellant, the complainant and Ms Glynn were all bleeding at the same time. The complainant then threw the branch on the ground and punched the appellant, knocking off his glasses. Mrs Glynn approached the three of them with her hands up saying "Get away. Get away ... what's going on? ... Get away from my husband. Get away from my daughter. What's - stop it. Stop it." (T345-348)

123. Mr Colubriale was holding back the complainant with his hands and Mrs Glynn told him to go inside and said "Don’t you touch my daughter. Don't you touch my husband. What are you doing?" At that point, the complainant was trying to push through Mr Colubriale's hands and go at the appellant. The appellant was saying to him "Look at my daughter's fingers. You could have poked her eye out." Mr Colubriale said to the appellant, "Stop being a dick", and Mrs Glynn replied to him "You're a dick." Then the appellant, Mrs Glynn and Ms Glynn who was uncontrollably crying, went back into their house. Mrs Glynn saw the injuries on Ms Glynn's fingers and the appellant’s hands and took photographs of them. She saw the police about half an hour after the incident.

124. Mrs Glynn saw Ms Glynn, the appellant and the complainant all get hit by the tree branch when the complainant swung it due to its large size and the fact it rotated when it was swung. At the time it was all in one piece and had thorns. Prior to the incident, Mrs Glynn had not seen the branch. When she saw it on the ground, she saw thorns on the branch. She did not see the police take photos of the branch.

125. In her evidence in chief, Mrs Glynn said that since the time of the incident, the branch had deteriorated and thorns had fallen off. Mrs Glynn confirmed there were thorns on the branch on the date of the incident. Mrs Glynn was present, behind the appellant and Ms Glynn, during the altercation. She arrived at the same time as Mr Colubriale, who was on her right. She denied that she said previously in her evidence that Mr Colubriale arrived at the scene after her.

126. Mrs Glynn saw the complainant running with a tree branch from his property toward the appellant and Ms Glynn. He held the base of the tree branch with both hands in front of his body; the branch was pointing upright. He was not cradling the branch. The complainant then swung the branch, rotated it and it hit the appellant, Ms Glynn and himself. She could not remember how he swung it or the direction it was swung. She agreed that the branch was swung from over the complainant’s right shoulder to his left side. The complainant then threw the branch to his side. Mrs Glynn used the branch and demonstrated how the complainant swung the branch to the jury. She could not indicate how far the appellant was from the complainant when he swung the branch, she described it as 'close'.

127. The appellant had his hands up and palms out covering his face when the branch was swung. The branch followed a circular arc when swung and it rotated. It hit the appellant and Ms Glynn on their fingers and the complainant was bleeding from his head. She saw the tree branch make contact with the complainant’s head. The branch hit the three of them at the same time. Mrs Glynn denied that she said in her evidence-in-chief that “the branch could have hit any part of him" referring to the complainant.

128. Mrs Glynn saw the altercation and said, "Get away from my husband. Get away from my daughter. Stop it. Stop it." She denied saying, "What happened? What did my husband do?" She later confirmed in her evidence that she did not say, "What happened? What did my husband do?" during the altercation.

129. Mrs Glynn had not read the police brief, nor the statements made by the complainant, Mr Colubriale and Romina. She had not discussed the brief of evidence with her husband, the appellant. She had never discussed with him the allegations nor the evidence likely to be brought against him. When asked why, she responded “The solicitors have been handling it”. In the four years prior to the trial, Mrs Glynn had not informed herself about the allegations against the appellant. She lived with her husband, but she did not know the allegations against him, nor did she ask about the evidence against him. She understood the charges against him.

130. After the altercation, Mrs Glynn saw police and said to her family “The police are at 6 Watkin Avenue. They'll probably come up and visit us soon." She was hoping the police would come to her house next.

131. Prior to the incident, Mrs Glynn was intending to leave the house just before 2pm with the appellant and Ms Glynn to go to lunch at an Italian restaurant in Leichardt, approximately a 30 minute drive away.

132. She confirmed that she saw the complainant run toward her husband and swing the branch across his body in the way she had demonstrated earlier to the jury. She saw him hit the appellant and Ms Glynn with the branch. Mrs Glynn arrived at the altercation prior to it stopping. She denied that when she arrived, the appellant was swearing at the complainant, saying “fucking wog." The only person she heard using the word ‘fuck' was the complainant. She did not restrain the appellant. The complainant was the only person who was being restrained. She denied that the appellant picked up the branch, had it over his head and went toward the complainant and Mr Colubriale. She denied that she intervened.

The excluded video

133. The video which the appellant sought to tender in the trial consists of two parts. It is the second part of the video upon which the appellant relies in this appeal. The video appears to have been recorded on 20 June 2015 when Constables Hubbard and Connor attended at the appellant’s home.

134. The second part of the video includes the appellant telling Constables Hubbard and Connor that the complainant swung the branch indicating it went through his fingers. He is heard to indicate to the police officer where he had cuts and scratches. Ms Glynn states that the complainant swung the branch, and demonstrates holding something over her right shoulder. She says that “Dad never punched him, it was mainly backing him away because I don’t know what he was doing with the branch. When he swung it, it had hit me, ‘cause I was right next to Dad and I don’t think he cared. And then he hit me, he hit Dad, and then I think – it’s a massive branch, it got back on him.”

135. The police then suggested that the appellant discuss the matter at the station, and the appellant asks his daughter “So you’ve showed the, uh, photos?” Constable Hubbard nods in affirmation, and the appellant says “OK, and you’ve acknowledged the photos?” Constable Hubbard says “yes” and nods. The appellant then says “Have you seen the bloody fingers?” to which Constable Hubbard says “yes”, and appears to glance at Ms Glynn’s hands.

136. At times during the video both of Ms Glynn’s hands are visible, but no injuries are readily apparent.

Argument

137. In submitting that this Court should apply the proviso, on the basis that no substantial miscarriage of justice was caused by the trial judge’s failure to admit the evidence, the Crown referred to Macfarlan JA’s summary of the relevant principles in Hofer v R,[1] and cited the sixth of these principles as being apposite to the present appeal (see [150] below).

     1. [2019] NSWCCA 244 at [53]-[58] (“Hofer”).

138. The Crown accepted that as the video was not before the jury, the Crown could not rely on the jury’s verdict. The Crown’s submission was that this Court would be satisfied that guilt has been proven beyond reasonable doubt and that the oral evidence contrary to the Crown’s case was obviously false.

139. The Crown pointed out that the central issue in the trial was whether the appellant punched the complainant in the face. The Crown referred to the complainant’s two statements, the testimony of Mr Colubriale and his daughter Romina, the consistent complaints made by the complainant to the medical professionals about the events and the medical evidence of the complainant’s injuries which was consistent with his account of what occurred.

140. The Crown argued that even if it was accepted that Ms Glynn had bloodied fingers, this Court would be satisfied beyond reasonable doubt that the complainant sustained his eye injury from being punched deliberately by the appellant.

141. In oral submissions, the Crown said Dr Lowe’s evidence that the complainant’s injuries were consistent with his being punched in the left eye was never challenged. The Crown argued it was implausible that the eye injury could have been caused by the complainant himself or alternatively by a slap.

142. The appellant submitted that the existence of injuries to Ms Glynn’s fingers was a prominent matter, about which issue had been joined in the trial. Consequently the contents of the video were particularly important as Constable Hubbard acknowledged that she had seen “the bloody fingers”. The appellant contended that the conversation in the video was plainly admissible to show Ms Glynn had suffered injuries and had been seen by the police officer’s proximate to the altercation.

143. In oral submissions, Mr Chhabra said that a fundamental issue was how the altercation commenced. It was the Crown case that the appellant was the initial and sole aggressor whereas the appellant’s case was that he acted in self-defence of himself and his daughter. Mr Chhabra submitted that on the Crown case, there was no act from which Ms Glynn could have been injured. It was further argued that the video made plain she had an injured hand, that she made a complaint to the police of such injuries and the arresting officers acknowledged the injuries on the day of the altercation.

144. Mr Chhabra contended that where the entirety of the defence case was ultimately based on the complainant being the initial aggressor, the existence of the injuries was profound as they helped to corroborate the appellant’s case. The injuries were said to establish the foundation upon which the appellant had acted in response to the complainant’s initial behaviour.

145. As to the injuries to the complainant’s left eye and how they may have been occasioned, Mr Chhabra acknowledged that this was problematic, but submitted it was a question for the jury as was the issue of self-defence. Mr Chhabra submitted this was not an extreme case where this Court would conclude that the oral evidence of the appellant, Ms Glynn and Mrs Glynn was obviously false.

Consideration

146. Section 6(1) of the Criminal Appeal Act provides:

“The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

147. The fundamental question in the present case when considering the proviso is whether there has been a substantial miscarriage of justice by the trial judge’s error in refusing to admit the video. In Filippou v The Queen,[2] French CJ, Bell Keane and Nettle JJ said at [15] that by “substantial miscarriage of justice” what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or that there was some other departure from a trial according to law that warrants that description.

     2. (2015) 256 CLR 47; [2015] HCA 29; 253 A Crim R 126.

148. In Weiss v The Queen,[3] the High Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) observed at [45]:

“Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.”

3. (2005) 224 CLR 300; [2005] HCA 81; 158 A Crim R 133 (“Weiss”).

149. In Kalbasi v Western Australia,[4] in considering submissions as to the application of Weiss, the plurality (Kiefel CJ, Bell, Keane and Gordon JJ) said at [15]:

“Contrary to the appellant's submission, Weiss requires the appellate court to consider the nature and effect of the error in every case. This is because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury's consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In such cases Weiss does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved. Assessing the application of the proviso by reference to considerations of "process" and "outcome" may or may not be helpful provided always that the former takes into account the capacity of the error to deprive the appellate court of the ability to justly assess the latter.” (Citations omitted.)

4. (2018) 264 CLR 62; [2018] HCA 7; 271 A Crim R 245.

150. In this appeal, the Crown’s argument focussed on what was said at [58] in Hofer. Macfarlan JA helpfully summarised the principles of relevance to the application of the proviso in Hofer as follows:

“[51] Decisions in recent years in which the High Court has considered the application of the proviso include Weiss; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59; Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086; Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46; Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517; Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689; Kalbasi v Western Australia [2018] HCA 7; (2018) 92 ALJR 305 and OKS v Western Australia [2019] HCA 10; (2019) 93 ALJR 438.

[52] Principles of relevance to the application of the proviso in the present case that I derive from these authorities are as follows.

[53] First, in applying the proviso, the “fundamental question” for the appellate court is to decide whether there has been a substantial miscarriage of justice (Kalbasi at [16]).

[54] Secondly, it is a necessary but not sufficient condition for application of the proviso that the appellate court is persuaded that the evidence properly admitted at trial proved the accused’s guilt beyond reasonable doubt (Weiss at [44]; Baiada at [29]; Lane at [38]). Where an appellate court is so satisfied, this “will in many instances support the conclusion that there has been no substantial miscarriage of justice” (Kalbasi at [13]; see also Weiss at [44]; Baini at [30]). In some cases, it will not. Where the appellate court is not satisfied that the accused’s guilt has been proved beyond reasonable doubt on admissible evidence there “will always be a substantial miscarriage of justice” (Kalbasi at [13]).

[55] Thirdly, for the purpose of determining whether there has been a substantial miscarriage of justice, the appellate court must undertake an independent assessment of the whole of the record of the trial (Weiss at [41] and [43]). That examination requires account to be taken of the jury’s guilty verdict (Weiss at [43]).

[56] Fourthly, there are natural limitations on the appellate court’s ability to determine whether the accused’s guilt has been proved beyond reasonable doubt, particularly in cases in which the credit of witnesses is of importance because the appellate court has not seen and heard the witnesses give their evidence (Kalbasi at [15]; OKS at [31]; Weiss at [41]). Reliance by the appellate court on the jury’s guilty verdict may enable those limitations to be overcome (Baini at [32]). Such reliance avoids the appellate court impermissibly exercising the functions of the jury (Lane at [48]; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]).

[57] Fifthly the appellate court will not be able to rely on the jury verdict where the verdict may have been affected by errors in the trial process (OKS at [29]; Kalbasi at [15]; Lane at [48]; Collins at [36]). In some cases however an error will have been of no significance in determining the verdict returned by the jury (Weiss at [43]).

[58] Sixthly, in an extreme case the appellate court may be able to rely, for the purpose of determining whether guilt has been proved beyond reasonable doubt, not on the verdict, but on its own conclusion that oral evidence contrary to the Crown’s case is obviously false (Castle at [66]).” (Emphasis added.)

151. In Castle v The Queen,[5] the plurality (Kiefel, Bell, Keane and Nettle JJ) did not speak of “an extreme case”. The plurality said at [66]:

“The Court of Criminal Appeal considered that the natural limitations that apply to reasoning to guilt on the record in a case which turns on the assessment of oral evidence did not apply here because of the obvious falsity of Castle's evidence. The Court of Criminal Appeal's view – that Castle's evidence was, in light of the objective evidence, glaringly improbable – was open. However, proof of guilt did not turn on the rejection of Castle's oral evidence alone.”

5. (2016) 259 CLR 449; [2016] HCA 46.

152. It may be that there are few occasions when an appellate court is able to make an assessment of the oral evidence upon which an appellant relies as being obviously false, but it is unnecessary to consider whether the particular case in question fits the label of being an “extreme case”.

153. In the present case, it appears to us that should this Court assess the evidence of the appellant, Mrs Glynn and Ms Glynn as being obviously false and the Court is further satisfied on the criminal standard that the evidence properly admitted at trial proved the appellant’s guilt of the alternative count, then the possibility the appellant has been denied a chance of acquittal which was fairly open to him would be excluded beyond reasonable doubt. In undertaking this assessment, this Court will have no regard to the guilty verdict as the video was not admitted into evidence.

154. The Crown case against the appellant was undoubtedly powerful. The complainant’s statements that he was repeatedly punched by the appellant to the face after he had thrown the branch to the ground and felt something else strike him in the face was supported by the evidence of Giuseppe and Romina Colubriale.

155. Mr Colubriale saw the appellant making aggressive moves towards the complainant who was trying to shield his head and was hunching over. The appellant was punching him continuously and his punches were landing on the complainant’s chest area as the complainant was retreating. Mr Colubriale saw the appellant hit the complainant’s head with a tree branch. Mr Colubriale did not see the complainant throw any punches.

156. Ms Colubriale did not see the complainant with a stick in his hands at any point. She saw the appellant pick up a branch and hit the complainant on the head, who cowered as he was stepping backwards. Ms Colubriale gave evidence that after the appellant hit the complainant with the branch, the appellant threw the stick down and then punched the complainant with closed fists in the stomach approximately five times.

157. Although neither Mr Colubriale nor Ms Colubriale saw the altercation commence nor did they see the appellant punch the complainant in the face, their evidence stood unhappily with the appellant’s case that it was the complainant who swung the tree branch at him and his daughter and that his actions were confined to slapping the complainant on the side of the face and ear.

158. The complainant’s injuries which included an undisplaced fractured nose and a disruption of the left intraocular lens are consistent with the Crown case. It was Professor Coroneo’s evidence that this injury was most likely directly caused by the blow to the left eye. The Crown relied upon this injury to establish grievous bodily harm.

159. On the other hand, Ms Glynn and Mrs Glynn supported the appellant’s evidence that it was the complainant who was the aggressor. Ms Glynn testified that the complainant swung the branch which hit her left hand, slicing her four fingers and a trickle of blood came out. Her father did no more than slap the complainant briefly and push him away with open palms. She said that she told police on the night of the incident that she thought the complainant cut his own head with the tree branch.

160. She also told police about her injuries and gave them photos. Ms Glynn testified that Constables Connor and Hubbard acknowledged her injuries.

161. Mrs Glynn gave evidence that she saw the complainant swing the tree branch, hitting the appellant, Ms Glynn and himself. Mrs Glynn saw blood trickling down the complainant’s head and nose. The appellant, Ms Glynn and the complainant were all bleeding at the same time. Mrs Glynn saw the complainant throw the branch on the ground and punch the appellant, knocking off his glasses. She denied that the appellant picked up the branch, had it over his head and went toward the complainant.

162. The complainant’s injuries are undoubtedly a difficulty for the appellant but it must be borne in mind that the Crown bears the onus of proof. Professor Coroneo did not give evidence in the trial and we do not know whether it is a reasonable possibility that the injury to the complainant’s intraocular lens may have been caused by a self-inflicted blow with the branch.

163. The complaint of injuries to Ms Glynn’s fingers was not a matter of recent invention. Mr Colubriale testified that the appellant said “How would you like it if your daughter was hit by – hit with a stick?” Mr Colubriale said Ms Glynn indicated that she had been hit on the finger but he did not notice any injury or blood. In the complainant’s statement dated 24 June 2015, he recounts that the appellant said “Why did you hit my daughter” which he denied. There had been prior animosity by the complainant towards the appellant.

164. This was a trial in which the credibility of the witnesses was crucial. Constable Connor’s evidence that he could not remember whether Ms Glynn indicated an injured finger but if she had he would have taken photos had the capacity to seriously undermine her credibility and the appellant’s case. This was recognised by the Crown Prosecutor when he used the police officer’s evidence to attack Ms Glynn’s testimony in his closing address to the jury (see [9] above).

165. The admission into evidence of the video may have removed this avenue of attack on Ms Glynn’s credibility and had the capacity to support the appellant’s case that the complainant was the aggressor. We are not persuaded that the video was unlikely to have influenced the jury’s verdict. What is made of the video will ultimately be a matter for the members of a jury, but the Crown bears the onus of eliminating self-defence as an issue in the trial.

166. Notwithstanding the strength of the Crown case, we are unable to conclude that the evidence of the appellant, Mrs Glynn and Ms Glynn was obviously false. We are also of the view that the possibility cannot be excluded that the appellant has been denied a chance of acquittal which was fairly open to him by the trial judge’s error in refusing to admit the video. We consider that a substantial miscarriage of justice has occurred.

167. As the appellant will have a new trial, it is unnecessary to deal with the remaining grounds of appeal. It will be open to the appellant to ask the judge to give a warning that the evidence of the complainant may be unreliable because it was not tested by cross-examination in accordance with s 165(2) of the Evidence Act.

168. It will be for the judge to decide whether to accede to the request.

Orders

169. Accordingly, the orders of the Court are:

1. Appeal upheld.

2. The appellant’s conviction and sentence are quashed.

3. List the case for mention at the District Court at Sydney on 22 January 2021 at 9:30am.

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Endnotes

Amendments

05 September 2022 - Publication status updated

Decision last updated: 05 September 2022