Horne v Carlon - [2007] NTSC 46

Horne v Carlon [2007] NTSC 46
PARTIES:DARRYL COLIN HORNE

v
LORRAINE JOY CARLON

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA87/04 (20407705)
DELIVERED:  25 September 2007
HEARING DATES:  26 July 2007
JUDGMENT OF:  THOMAS J

REPRESENTATION:
Counsel:
Appellant:P Elliott
Respondent:  R Coates
Solicitors:
Appellant:Withnalls
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:        C
Judgment ID Number:  tho200704
Number of pages:  12

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Horne v Carlon [2007] NTSC 46
No. JA 87/04 (20407705)

BETWEEN:
DARRYL COLIN HORNE

Appellant
AND:
LORRAINE JOY CARLON

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 25 September 2007)

On 25 May 2007 the Court of Appeal of the Northern Territory confirmed a conviction upon the appellant for an offence of assault. The appellant was convicted in the Court of Summary Jurisdiction following a plea of not guilty to the following charge:
“On the 4^th February 2004 at Darwin in the Northern Territory of Australia.
1.      unlawfully assaulted Vincenzina ZANGARI:
AND THAT the said unlawful assault involved the following circumstances of aggravation, namely:
(i)     That the said Vincenzina ZANGARI suffered bodily harm.
(ii)     That the said Vincenzina ZANGARI was a female and the said Darryl Colin HORNE was a male.
Contrary to Section 188(2) of the Criminal Code.”
Martin CJ, with whom Angel and Mildren JJ agreed, set out the evidence relevant to the assault as follows:
“Assault - Evidence
[3]The complainant gave evidence that in the early hours of Wednesday 4 February 2004 at the premises from which the escort agency operated, she and the appellant had an argument. According to the complainant, while in the kitchen the appellant “shoved” a red kitchen tool under her chin without touching her and told her to shut her “conniving, scheming mouth because he wasn’t going to tolerate any bullshit”. The complainant described how she walked to the bathroom and the appellant followed her. The following passages from the evidence of the complainant convey the essence of her version as to the circumstances of the assault:
“Darryl’s followed me [into the bathroom] and grabbed me hard by the arms and he spun me around. …
… Darryl came in behind me and grabbed my shoulders from behind and as he grabbed my shoulders from behind we kinda went forward and spun around and as I spun around, Darryl let me go and I fell into the corner of the bathroom in between the toilet and the basin.
… That night I had a low cut red dress, red bra. From the corner Darryl grabbed me by my front of my dress which caused my dress and my bra to rip. He spun me around again and let me go back – I fell into the wall.
… Back into the same wall that I fell the first time, in the corner and I remember hitting the wall and as I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Horne v Carlon

Details

AGLC: Horne v Carlon [2007] NTSC 46
Case: [2007] NTSC 46
Decision Date: 25 September 2007

CaseChat Overview and Summary

In the case of Horne v Carlon, the appellant, Carlon, was convicted of assaulting the complainant. The matter was appealed to the Supreme Court of Victoria, which upheld the conviction. The primary dispute centred on whether the evidence presented was sufficient to prove that the appellant assaulted the complainant. The complainant testified that the appellant assaulted her by grabbing her dress and bra, causing her to fall, and subsequently striking her in the mouth, leading to bleeding and loose teeth. The appellant denied these allegations, claiming that the complainant followed him into the bathroom and that he merely grabbed her dress to wake her up without using any physical force. Various witnesses, including other women who worked at the escort agency, corroborated aspects of the complainant's account, describing her injuries and the events leading up to the assault. Medical reports from a practitioner and a dental surgeon confirmed that the complainant's injuries were consistent with a physical assault. The forensic examination of the complainant's dress and bra also supported her version of events. The Court found the complainant's evidence credible and was satisfied that the totality of the circumstantial evidence corroborated her account of the assault. The Court rejected the appellant's denial and upheld the conviction, noting that there was ample evidence to support the Magistrate's finding. The Court further imposed a sentence of one month imprisonment, suspended for 12 months, taking into account the time the appellant had already spent in custody.

Orders

Orders of the court

Accordingly, the order I make is that the appellant is convicted and sentenced to one month imprisonment to be released upon the rising of the Court and the sentence suspended. I take into account the appellant has spent a period of time in custody on the date of his conviction and sentence in the Court of Summary Jurisdiction on 25 October 2004. Pursuant to s 40(6) the Sentencing Act, I specify a period of 12 months from the date of this order during which the appellant is not to commit an offence punishable by imprisonment if he is to avoid being dealt with under s 43 of the Sentencing Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Martin CJ, with whom Angel and Mildren JJ agreed, set out the evidence relevant to the assault as follows:“Assault - Evidence[3]The complainant gave evidence that in the early hours of Wednesday 4 February 2004 at the premises from which the escort agency operated, she and the appellant had an argument. According to the complainant, while in the kitchen the appellant “shoved” a red kitchen tool under her chin without touching her and told her to shut her “conniving, scheming mouth because he wasn’t going to tolerate any bullshit”. The complainant described how she walked to the bathroom and the appellant followed her. The following passages from the evidence of the complainant convey the essence of her version as to the circumstances of the assault:“Darryl’s followed me [into the bathroom] and grabbed me hard by the arms and he spun me around. …… Darryl came in behind me and grabbed my shoulders from behind and as he grabbed my shoulders from behind we kinda went forward and spun around and as I spun around, Darryl let me go and I fell into the corner of the bathroom in between the toilet and the basin.… That night I had a low cut red dress, red bra. From the corner Darryl grabbed me by my front of my dress which caused my dress and my bra to rip. He spun me around again and let me go back – I fell into the wall. … Back into the same wall that I fell the first time, in the corner and I remember hitting the wall and as I was getting my head back up I noticed either had his arm up here to slap or punch me in the mouth.… He slapped me in the mouth and my teeth began to bleed and my mouth began to bleed. I began to cry. Darryl told me to pull myself together and at the same time I could hear the girls were returning or people were returning and Darryl said he didn’t want them to have any doubt and confusion about us. So I’ve walked out of the bathroom at that point and I’ve gone back into the office where I’d -… my mouth was slow [sore] and my teeth were loose, they were bleeding, top and bottom were loose and I was bleeding. … Well, I walked back to the office and I rinsed my mouth out with saltwater and the girls came in – I sat down at the desk and the girls come in and [Ms S] came in and sat down at the desk and I showed her what Darryl had done to me. Darryl pretended nothing had happened and I just wanted to avoid it all and I just went to bed and went to sleep.”[4]The complainant gave evidence that when she got up at about lunchtime on Wednesday 4 February, her mouth was really sore and her teeth were loose. She was not happy. The appellant told her off for not smiling. According to the complainant, during the afternoon the appellant told her that she could work for “us” and she did not know who he was referring to because she believed that the business was hers. After the appellant left, the complainant gathered a few things together and left the premises in a taxi. After arriving at the home of a friend, she made a complaint of assault to the police by telephone and contacted a women’s shelter where she spent the night. The complainant said that as soon as she reached the women’s shelter she rang a named person at the Licensing Commission, advised that person that she had fled the office and why and was given instructions to have the phones disconnected. The complainant did not return to the business.[5]On 4 February 2004 the complainant also saw a medical practitioner. Either on 4 February or two days later she consulted a dental surgeon. Reports from those persons were tendered and neither gave oral evidence. [6]The medical practitioner found that the complainant had slightly loose front teeth, both top and bottom on the left, and observed a number of bruises. The practitioner’s report concludes:“Overall, [the complainant’s] injuries were consistent with a recent physical assault.”[7]The dental surgeon found that five teeth “showed signs of displacement, were extruded out of their sockets and both mobile and very sensitive to touch”. Advanced periodontal disease existed and was described as “critical” to the extent of the damage inflicted. In the view of the dental surgeon, a blow of “medium to light force” would have been sufficient to cause the damage. [8]Significantly, the dental surgeon reported as follows:“… Her injuries were consistent with her account of what happened.She alleged she had been hit in the left anterior facial area. There was evidence of this in the examination of the hard tissues involved. There had been displacement of teeth, mobility of teeth, and extreme tenderness to pressure as exhibited by the teeth indicated on the chart previously provided with her treatment record. At the time of examination there were no soft tissue lacerations. …”[9]Three women who worked as prostitutes gave evidence. One of the women who was under the age of 18 (“Ms K”) gave evidence that she saw the appellant strike the complainant, but the learned Magistrate did not accept that evidence. It appears that his Honour found that Ms K was upstairs at the time the blow was struck. Ms K gave evidence that after the blow was struck she observed that the complainant had a swollen lip. [10]Ms S gave evidence that she and Ms K were in an upstairs room when she heard an argument between the complainant and the appellant who were downstairs. Ms S described hearing a lot of “yelling and screaming, more so Darryl’s voice and a big loud thump.” Subsequently she observed that the complainant “had a bit of a bruised lip and a bit of a cut on her shoulder.” Ms S later described the injury to the complainant’s lip as a “fat lip”. She also noticed that the complainant’s “singletty top or dress” was ripped.[11]Ms C said that she had been out on a job. When she left the office, the complainant was wearing a red dress. When she returned the complainant was in a nightie and seemed a little distressed. She observed that the complainant had a “little bit of a puffy lip”. Ms C identified the dress which was tendered as an exhibit. It was not put to Ms C that she was wrong about the red dress.[12]The complainant’s bra and dress were examined by a forensic scientist. The report of the forensic scientist was tendered and stated as follows:“The bra was ripped apart at the front. There was also evidence of stretching to the neckline at the front of the dress. The damaged areas on the items aligned and in my opinion occurred at the same time”.[13]DNA evidence provided in the report of the forensic scientist supported contact between the appellant and the front of the dress and the bra. However, given that the appellant and complainant were living in the same premises and had been sexually intimate, in my view that evidence is of little, if any, significance and I have not had regard to it. [14]The appellant was interviewed by police on 1 April 2004. The version he advanced in that interview was consistent with evidence he gave before the Magistrate. In substance, the appellant said that the complainant followed him into the toilet and started screaming at him. She kept screaming at him and after he had finished washing his hands he turned around, grabbed her dress and told her crudely to wake up. The appellant denied there was any shaking or physical force. In particular he denied slapping or punching the complainant. The appellant also denied damaging the dress or bra and, when shown the red dress during the interview, positively maintained that the complainant was not wearing that dress on the occasion of the argument.’and at [30]:“In my opinion the evidence in its entirety well justified the Magistrate’s finding that the totality of the circumstantial evidence corroborated the complainant’s evidence that she was struck in the mouth. There was ample evidence to support the finding of the Magistrate and there is no basis upon which this Court could properly interfere. Having read the evidence, I do not experience a doubt about the finding of guilt. In my opinion, it was the appropriate finding.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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