J Flint v Graeme Vickerstaff

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	J Flint v Graeme Vickerstaff
Citation:	[2019] ACTMC 13
Hearing Date(s):	9 July 2018, 15 October 2018, 2 November 2018
DecisionDate:	20 May 2019
Before:	Special Magistrate Hunter OAM
Decision:	See [112] –[140]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Judgment – common assault – witness evidence – failure to call eyewitness – reliability - R v Murray - inconsistent evidence
Legislation Cited:	Crimes Act 1900 (ACT)
Cases Cited:	Browne v Dunn (1893) 6 R 67 R v Murray (1987) 11 NSW LR
Parties:	J Flint (Informant) Graeme Vickerstaff (defendant)
Representation:	Mr T Trotter (Informant) Ms S Hamon (Defendant)
File Number(s):	CC 13112 of 2017

SPECIAL MAGISTRATE HUNTER OAM:

Matter of Graeme Vickerstaff

The defendant was charged with one count of common assault pursuant to section 26 Crimes Act 1900 (ACT) in that he, on 18 December 2016, punched Yayah Conteh to the head.
I heard evidence from Mr Yayah Conteh, Constable Jason Flint, Senior Constable John Campbell and Ms Belinda Chavasse.
I heard that evidence over three hearing days; 15 October 2018 where I heard evidence from Constable Campbell and Constable Flint, 9 July 2018 when I heard evidence from Mr Conteh and 2 November 2018 when I heard evidence from Ms Chavasse.
The defendant Mr Vickerstaff was represented by counsel on the first and last hearing days but not the middle hearing day when the complainant Mr Conteh gave evidence.
I received a 000 call recording and transcript, recorded interview with the defendant and photographs taken of Mr Conteh’s head.
The prosecutor opened his case stating that the defendant lived at Gowrie Court and Mr Conteh had moved out approximately one month before 18 December 2016. Mr Conteh had gone to Gowrie Court to visit a friend and also to collect some vegetables from various charities who donate them to those down on their luck. The prosecutor stated that when Mr Conteh was leaving Gowrie Court the defendant approached him in the stairwell and there was an interaction between the two of them. That interaction was in regard to a debt owed to the defendant by Mr Conteh. The prosecution opened stating that when Mr Conteh turned to leave the area the defendant grabbed him by the shirt, pulled him backwards towards himself, grabbed his neck and forced his fingers into Mr Conteh’s eyes. Mr Conteh pushed the defendant away and the defendant then struck Mr Conteh to the head. At the time there was a female who tried to intervene to stop the altercation. The defendant then left Mr Conteh and Mr Conteh contacted police via 000.

Summary of evidence

The primary witness was Yayah Conteh who is the complainant in the matter. Mr Conteh gave evidence on 9 July 2018. The defendant was not represented on that occasion. I explained to the defendant, as a self-represented litigant the proceedings, what the defendant should know about how a hearing is conducted. I was satisfied he understood what I had said to him.

Yayah Conteh

Mr Conteh lived at Gowrie Court until the end of 2016. On 18 December 2016 at approximately 3:30pm he was at Gowrie Court visiting a friend. Mr Conteh was also there to pick up some fruit from the ‘Oz Harvest’ delivery van that brings food to Gowrie Court for underprivileged people. Mr Conteh said that his friend was named Derek.
Mr Conteh said that he arrived and knocked on Derek’s door and had a chat with him at the door. After the chat he saw the defendant approach him. The defendant appeared aggressive, telling him that he was not to be in Gowrie Court. Mr Conteh argued with him in that regard.
The defendant lived above Mr Conteh’s friend’s flat. As Mr Conteh was speaking to his friend, the defendant approached from his place upstairs and spoke to him, telling him that he should not be there. The defendant then asked him to pay him the $40 he owed him. Mr Conteh told him he did not recall him owing him any money. Mr Conteh said the defendant then assaulted him physically, punched him and pushed him.
Mr Conteh said that the defendant punched him with a closed fist and demonstrated how he did so. He recalled being hit four or five times by the defendant. Mr Conteh said he fell on the ground. Mr Conteh said the defendant then tried to kick him but he managed to escape the kick by evading his foot.
Mr Conteh said that the defendant then stopped and when he got up he touched his head and felt bleeding. It was at this point he decided to contact police.
Mr Conteh said that the defendant’s girlfriend was trying to help the defendant. Mr Conteh said that he had lost his glasses in the melee but found them in the grass area where the incident took place. Mr Conteh said he was confused at that stage as he had lost his hat and glasses and because he did not know why he had been assaulted.
Mr Conteh also said that the defendant told him that he would take a hammer to him and pull his teeth out.
As Mr Conteh waited for the police, he saw the defendant get into a motor vehicle and drive off.
Mr Conteh said that he had suffered some injuries and was shown some photographs. Mr Conteh identified that he had a lump on his head where he was hit by the defendant. Mr Conteh also identified the area where he said he was bleeding as a result of being punched by the defendant. He circled where he said the blood was coming from. He said the photographs were taken approximately half an hour after the event.
The 000 call was played to Mr Conteh. Mr Conteh said that he was not injured prior to the defendant punching him and at the time he felt a small amount of pain like a headache. He took some painkillers for the headache. Mr Conteh did not give the defendant permission to assault him or punch him.

Cross-Examination

The defendant, who was on that occasion unrepresented, asked Mr Conteh questions in cross examination.
The first line of questioning was in relation to whether Mr Conteh in fact did live at Gowrie Court at all. Mr Conteh said that he lived with a man called Wallace, however he could not recall the unit number or the block. Mr Conteh agreed with the suggestion made by the defendant that the defendant had lived in Gowrie Court and has done so for long time and knows everybody there.
The defendant suggested to Mr Conteh that he in fact lived with a man called Joshua better known as ‘the Midget’. Mr Conteh said he lived with three people there, Wallace, Joshua and Moses.
Mr Conteh was asked why, given he only lived there for three months, he had lived with three different people. Mr Conteh said it was because of their actions such as getting drunk or being rude so he would stay with another person as he was homeless at the time.
It was suggested to Mr Conteh that he left Joshua’s place because he failed to pay the rent. Mr Conteh denied that and said he did pay his rent. It was suggested to Mr Conteh that the defendant had asked him on behalf of Joshua to pay the rent and when he didn’t he asked him to leave. Mr Conteh denied that he was asked to leave for that reason.
The defendant asked Mr Conteh who Derek was. The defendant did not know, despite having given evidence earlier that it was Derek who he went to see. Then Mr Conteh said Derek was a friend of his that he just says hello from time to time, because it was Christmas. The defendant asked him whether he had already told the Court that he had spoken about Derek and he said he hadn’t. [I note this was untrue because he has said that he had in his evidence in chief].
The defendant asked Mr Conteh who he was there to see, that is, the person who lived below the defendant. Mr Conteh said yes that was Derek that he went to visit that day. It was suggested by the defendant that he had lived Gowrie Court for eight years and in fact the person who lived beneath him had been there for four years and his name was Adrian, not Derek.
The defendant then suggested to Mr Conteh that the person he was visiting was a drug dealer. There was objection taken to that question.
After allowing the question (as I ruled the defendant asked Mr Conteh who he had come to see) he said that he came to see Wallace, he was not there so Mr Conteh then passed through the defendant’s place and spoke to Adrian. Mr Conteh was asked whether he knocked on Adrian’s door and he said he did not, because he was outside and they said hi to each other. Mr Conteh said he stood by his door they were talking about Christmas and how he had celebrated it.
Ultimately the defendant suggested to Mr Conteh that the man underneath was Adrian and the reason he was there was to purchase something from him when he knew that he still owed the defendant money. Mr Conteh denied that he was giving Adrian any money.
The defendant asked him why he did not park his motor vehicle in the Gowrie Court car park, particularly given he was there to collect donated foods. Mr Conteh said he did so big because he was running late and all the good stuff had gone, he was just picking out a few things. Mr Conteh said he had a bag with him.
The defendant asked if there was anyone else there at the time he was alleged to have punched him. Mr Conteh said yes, the defendant’s girlfriend had come out. Mr Conteh also indicated there were two other guys standing next to the defendant when he punched Mr Conteh. Mr Conteh said they all came from his flat.
I asked Mr Conteh about that fact and told him that he not said anything about these other people previously. Mr Conteh said he was not asked about that.
The defendant asked about where Mr Conteh said he went to see Adrian. It was suggested that Mr Conteh had been confused and had said he had spoken to Adrian at the door but also outside. Mr Conteh said he was standing at his door whilst he was speaking with him. Mr Conteh then said that he was speaking to him from the inside of his flat and they exchanged pleasantries about Christmas.
The defendant remarked that Mr Conteh must be a very friendly person because he didn’t even know Adrian’s name yet he was speaking with him. Mr Conteh replied that he is very friendly and says hello to people even without knowing their names.
The defendant said “If you are such a friendly man why didn’t Adrian come to your aid?” Mr Conteh said Adrian had asked the defendant to stop assaulting him and said “Graham, please don’t” and said he heard him say the words. It was suggested by the defendant that he had not mentioned that earlier in his evidence and Mr Conteh said “Because I don’t want – because you have already done what you’ve done, so…”[1]
[1] Transcript of Proceedings 9 July 2018, page 41 line 23.
In questions from me about his failure to say anything about other people being in attendance when he was assaulted, Mr Conteh said:
No, I told the police even that day – I said, “I was speaking to one of my friends at his door, above him. Then he came down and assaulted me because he heard me – my voice down, speaking to this guy. We’re speaking as good friends, so he came down because he heard my voice – Graham. He came down to assault me purposely and asked me these questions, why – what am I doing here? Who am I to come around here? That was the first question which he started asking me.[2]
[2] Transcript of Proceedings 9 July 2018, page 41 line 25.
The defendant asked the witness what he had done with the fruit and vegetables he had picked up. Mr Conteh said that he had already placed them in his car and had then gone to say hello. The defendant then asked whether he knew a person called Michael with a nickname of Belmont and Mr Conteh said he did not know that person. He was then asked “Well did you sit with him in the pergola around 3:30pm, 4 o’clock that afternoon?” Mr Conteh said he could not remember that. The defendant then asked whether he had sat in the pergola by himself and he said that he did remember that. Mr Conteh then asked what a pergola was and having been told what it was said all he did was collect the vegetables from their and put them in his car.
It was suggested to Mr Conteh that he did speak to Michael in the pergola and sat with him for at least an hour. The defendant suggested that Oz Harvest brings the groceries and vegetables every Sunday between 2.30 and 3:30 PM. Mr Conteh said he did not know what time it was. However, he did agree that a number of people from various places came to collect the vegetables and fruit.
It was suggested to Mr Conteh that it was difficult to believe that he did not see anyone else there when he arrived at the pergola as there are always people there. Mr Conteh ultimately agreed that everyone had been there earlier and that’s why he was there by himself.
Mr Conteh agreed that the pergola is not that far from where Mr Vickerstaff lives. Mr Conteh agreed that the defendant lived in the block further away from the pergola.
The defendant asked Mr Conteh why he did not mention any other witness other than Ms Chavasse. Mr Conteh said that they did not interfere in the issue and it was suggested that neither did Ms Chavasse. Mr Conteh said that she did interfere and the defendant then said “Well so did Adrian according to your evidence”.
The defendant then asked Mr Conteh why he did not tell police about Adrian. Mr Conteh said that he did not recall his name. Mr Vickerstaff asked about the other two men that he agreed were there at that time. Mr Conteh said that it was because they said nothing and did nothing. Mr Vickerstaff asked why he did not tell the police about the other two men and Mr Conteh said that he had told them.
The defendant asked in relation to Mr Conteh’s statement to police, where he said that Belinda Chavasse also owed him $30 and he told Graham that during the course of the assault.
The defendant Mr Vickerstaff then read out what Mr Conteh had said to police in the following passage of his statement:
…during this time I saw my friend Eric standing in the doorway in the same position from when I was talking to him, and straight after it, you mention, ‘I immediately left block E of Gowrie Court and walked back to my car where it was parked’. Now, I thought – did you go to your car and come back for me to assault you or did I assault you while you were walking to your car or can you just point out when I assaulted you because apparently I’d come to you when you are at your friend Eric’s door, who we established was Adrian, and, as I just said, you were speaking to him at his door in the same position that I was talking to him and then you say, ‘I immediately left block E of Gowrie Court, went back to my car’.
Mr Conteh said that statement was not true. I note that is in his statement which was read to him.
Mr Vickerstaff asked “Well you said it to police in your statement, is that not true?” Mr Conteh said he knew what he said to police. He said he came back to look for his glasses and his hat after the assault.[3]
[3] Transcript of Proceedings 9 July 2018, page 49 line 25.
I pointed out to Mr Conteh that what Mr Vickerstaff said was in Mr Conteh’s statement. It transpired that he did not mention it in his statement.
After objection I had my associate read the passages Mr Vickerstaff relied upon in asking the witness the questions:
I stood back up from the ground and the female gave me my hat back. I watched Graeme [the defendant] and the female walk back upstairs and lost sight of them. During this time I saw my friend Eric standing in the doorway in the same position from when I was talking to him.
Mr Conteh agreed that is what he said in his statement.
The defendant then suggested to Mr Conteh that nothing happened other than the defendant telling him that he could not come to people in Gowrie Court and offer them money. Mr Conteh denied that. Mr Vickerstaff alleged that Mr Conteh had another purpose other than picking up vegetables at Gowrie Court. Mr Conteh denied that. It was further alleged that he had another reason other than picking up food. Ultimately Mr Conteh agreed that he did have another purpose other than picking up the food. That purpose to speak to and visit friends
Mr Conteh denied that the Oz Harvest van was still there when he arrived. It was suggested that Wallace, Joshua and Abraham all live within 10 steps of where Oz Harvest delivers the vegetables. Mr Conteh said he was not sure of that.
It was suggested to Mr Conteh that the defendant did not assault him and the allegation was made because he was upset with the defendant. The reason he was upset was because the defendant told him not to come into Gowrie Court to buy drugs. It was further suggested he was not welcome by any of the neighbours because he owes everybody in Gowrie Court money. It was also suggested that was the reason why he parked his car outside of Gowrie court and why he was going to see Adrian. Mr Conteh denied this. It was suggested that Mr Conteh did not know Adrian and was hiding from everyone there. Mr Conteh denied that proposition.
It was suggested to Mr Conteh that the real reason was because he had a grudge against the defendant because he spoke to the last person that Mr Conteh had any hope of giving his money to. Mr Conteh denied that.
In re-examination Mr Conteh said that all the people that had been around earlier had gone when he was assaulted. Mr Conteh agreed that the only persons there when the assault took place were two males and a female.

Summary of the 000 call

The 000 call was made at 4:38pm. Mr Conteh said that he had been at Gowrie Court, someone just walked out and hit him, there was a swelling to his head and now he was bleeding a little bit. He clarified that the defendant Mr Vickerstaff met him three or four times making false allegations, saying that he owed him $30 which he does not.
Mr Conteh said that he just walked out, tried to come outside and meet him there, the defendant started to talk to him and ended up hitting him two or three times for nothing. Mr Conteh said he was bleeding on his head a little bit and there was a bump and swelling on his nose.

Senior Constable John Campbell

John Campbell was a Senior Constable of police at the relevant time, attached to Woden Police Station. On 18 December 2016 he was Acting Sergeant of the team. At the time he was travelling solo. At approximately 4:45pm that day he heard a transmission from police operations requesting a patrol to Gowrie Court and attended that location.
When he attended he was met by Mr Conteh who identified himself and said that he had been assaulted. Constable Campbell said that Mr Conteh approached him and said that he was there at approximately 3.30pm that afternoon visiting a friend at Gowrie Court when a male he knew approached him and assaulted him.
Constable Campbell said that Mr Conteh appeared distressed but was lucid and firm in his account. It was Constable Campbell’s clear impression it appeared that an incident had occurred involving Mr Conteh and the incident was in relation to him. As he was speaking with Mr Conteh another patrol arrived and he gave them a summary of the information relayed to him by Mr Conteh. They then took carriage of the matter.
Constable Campbell said that he did not make any observations of any injuries to Mr Conteh’s face and he was standing face-to-face with him.

Constable Jason Flint

Constable Flint attended on 18 December 2016 with Constable Connor. Constable Flint said that he had a conversation with Sergeant Campbell, who told him that the defendant Mr Vickerstaff had assaulted Mr Conteh in block E of Gowrie Court.
Constable Flint said he had a conversation with Mr Conteh who told him that he had been there to visit a friend and was assaulted by Graham Vickerstaff. Mr Conteh agreed to provide police with a statement at the station. Mr Conteh had told him that he was punched in the head. Constable Flint said he did see a small bump on the top of Mr Conteh said on his left side.
Constable Flint said he asked Mr Conteh who had hit him and he said ‘Graham’, not using his last name. Mr Conteh had told Constable Flint that there was a female at the location. Constable Finn said that Mr Conteh pointed toward block E of Gowrie Court and said that was where the incident occurred. They did not attend at the actual scene.

Mr Conteh informed Constable Flint that he was at the door of one of his friend’s place when the assault occurred. Mr Conteh confirmed that he was at the door before the assault and in the bottom of the stairwell during the assault.
Constable Flint said that he took three photos of the injuries he saw on Mr Conteh whilst obtaining a statement from him. Those were tendered before me. Constable Flint identified some small bumps directly from the corner of his left eye, which is the bump he had observed initially. Constable Flint marked the photograph with a blue pen outlining the borders of the mark.
Constable Flint also retrieved the 000 call made by Mr Conteh and had it transcribed. That was exhibited before me.
Constable Flint said he offered the defendant Mr Vickerstaff the opportunity for a recorded interview with police, which he accepted. Constable Flint also said he returned to Gowrie Court block E and knocked on doors. He said one resident answered and said he did not know anyone by the name that Mr Conteh relayed to him as his friend.
In cross examination he was asked whether Mr Conteh told him that two males had witnessed the assault. Constable Flint said he did not recall. Constable Flint was asked when he observed the bump on Mr Conteh’s head, did he observe any blood? He said he did not.

Belinda Chavasse

Ms Chavasse said that she has little recollection of 18 December 2016 because it is a long time ago and she was possibly under the influence of drugs and alcohol back then. Ms Chavasse indicated that she is now reformed and has been clean and sober for some time.
Ms Chavasse said that she does have some recollection of Mr Vickerstaff and Mr Conteh having cross words with each other. She does not recall any of the words spoken at that time. Ms Chavasse said that she meant talking to each other, although they were not talking really angrily, but they were loudly talking.
Ms Chavasse had a vague memory that the argument occurred outside of the defendant’s block on the grass area.
In cross-examination Ms Chavasse said that she did not see any physical altercation between Mr Conteh and Mr Vickerstaff. In a question from me I asked her where the discussion took place and she said it took place downstairs, just near the grassed area. Ms Chavasse said that there were a number of people around at the time.
The prosecution closed its case
Defence counsel tended the recorded interview police conducted with the defendant as exhibit D1. This was played in court.

Summary of Record of Interview

In relation to the allegation that the defendant assaulted Mr Conteh the defendant stated the following:
That he saw Mr Conteh as he was coming down the stairs and Mr Conteh said to him that he does not have to move for him or something of that nature. Mr Vickerstaff said ‘don’t worry about it’ as he went past him. The defendant said that he was on the lookout for the food truck and had been down a couple of times and spoken to neighbours. Prior to that he’d been listening to music, watching the television and talking to Ms Chavasse. The defendant said that he knew that the food truck comes every Sunday very much on time at approximately 2.30pm.
The defendant said he knew Mr Conteh because he lived there a couple of months ago with another resident named Josh in block D. The defendant said that Mr Conteh was knocking on Adrian’s door in the apartment downstairs from him. The defendant said that he rushed through, past Mr Conteh who said something like ‘I don’t have to move’, or something similar. The defendant said he was rushing down the steps and went outside to speak to the neighbours as the food truck had arrived.
The defendant said he knew Mr Conteh because he lived with Josh; Josh was a little person. The defendant said that at no time did he make any contact with Mr Conteh. The defendant denied that he ever had a run-in with Mr Conteh, however he said that he spoke with Josh who said that Mr Conteh had not paid his rent and that he could not get rid of him.
The defendant said he had very little contact with Mr Conteh that day, although he says he saw him in the pergola picking through vegetables after the food truck had left. The defendant said that he spoke with another fellow called Mick Belmont and Mr Conteh was there at the time picking through vegetables in the pergola.
The defendant stated that he could recall that Belinda came down when he was chatting with some people and recalled that she asked him to go to the shops and he went to the shops. That was at approximately 6:30pm.
Police asked the defendant “So it was after you got your food, you’ve gone and got your food from the community room, come out, then you’ve spoken to Michael, then you’ve looked at fruit?” The defendant answered:
No, well I’ve walked, I had food from inside the community room, and as I’ve come out of the community room rather than turn right straight away I’ve taken a few extra steps forward to ‘geeze if there was anything I wanted from there, wasn’t anything really there, and then went back home.
At the time Mr Conteh was looking at the vegetables when he came to have a look. After that he went back to his place.
Police asked the defendant whether he knew anyone who owned a dark-coloured convertible. The defendant stated he had never seen any convertibles and he definitely doesn’t know anyone with one. Police suggested that Mr Conteh had told them that he had hopped into a dark-coloured convertible and drove away. The defendant said he doesn’t own a car.

Prosecution submissions

The prosecutor asserts that there is no issue as to identification given Mr Conteh knew the defendant. The defendant had lived in Gowrie Court complex for a period of time and the defendant recognised that he knew Mr Conteh and he saw him on 18 December 2016.
The prosecutor submitted that there was independent evidence of the incident on 18 December 2016, being the 000 call, evidence from Mr Conteh that the defendant punched him in the head and evidence of Constables Flint and Campbell that they arrested Mr Vickerstaff following the incident.
The prosecutor submitted that what is in dispute is whether Mr Vickerstaff unlawfully and without consent applied force to Mr Conteh.
The prosecutor submitted that what the court is being asked is to decide whether to believe the version of events given by Mr Conteh and not the version given by Mr Vickerstaff.
The prosecutor conceded that there was some minor inconsistencies with Mr Conteh’s evidence but submitted that is entirely understandable because of the age of the matter and the period of time between when the offence occurred and when Mr Conteh gave evidence.
The prosecutor submitted that those inconsistencies are suggestive of an honest witness not rehearsed or parroting a prepared statement. It was rather a person trying to recall the events as best he could. Those inconsistencies are small in nature.
The prosecutor submitted what is clear is that Mr Conteh was struck 3 to 4 times by Mr Vickerstaff to the left side of Mr Conteh’s forehead. That was what was told to the 000 police operator as to what had occurred some minutes after the event. The consistency continues with the account given to the police and also the account given in evidence before me.
The prosecutor submitted that I would accept Mr Conteh as a reliable witness. His evidence was corroborated insofar as when police arrived, Constable Campbell opined in relation to his demeanour and presentation that he was distressed but did provide a lucid and firm account of what had occurred. It was Constable Campbell’s opinion that he was emotional but he gave the clear impression that the event had occurred and he related what the officer believed was an account of that event to him. The prosecutor submitted the emotionally distressed state Mr Conteh was in at the time when police arrived is consistent with him being assaulted that day. It is not consistent with Mr Conteh having fabricated the allegation.
The prosecutor submitted that the photographs which are exhibited before the court are objective and independent evidence which corroborates that an assault occurred. It was not challenged by the defendant and there is no evidence to suggest that the bump on the top of Mr Conteh’s head was caused by anything other than the assault by Mr Vickerstaff.
The prosecutor submitted that Mr Conteh told the court and demonstrated how he and where he was hit. Constable Flint described the bump as being on the left-hand side of the head which is consistent with Mr Conteh’s evidence in chief that Mr Vickerstaff struck him on the left-hand side of his forehead with his right arm.
The prosecutor submitted that it was suggested in cross examination that Mr Conteh was at Gowrie Court for the purposes of purchasing drugs and that he did not live at Gowrie Court. The prosecutor submitted that that factor is irrelevant in proving the offence as it does not go to a fact in issue.
The prosecutor submitted that Mr Conteh’s evidence is largely unchallenged but for one sweeping Browne v Dunn[4] passage where he said:
I put it to you that I didn’t assault you and you’re upset with me because I told you not to come into Gowrie Court to buy drugs because you’re not welcome by any of the neighbours because you owe everybody in Gowrie Court money already. That’s the reason why you parked your car outside of Gowrie Court and that’s why you’re coming to see Adrian who you call someone else, you didn’t even know the guy, so you are trying to come in – you are hiding from everybody there.[5]
[4] Browne v Dunn (1893) 6 R 67.
[5] Transcript of proceedings 9 July 2018, page 56 line 23.
In relation to the evidence of Belinda Chavasse the prosecutor submitted that I should disregard it and that is because Ms Chavasse stated that she did not really have much recollection of the day and that she was under the influence of drugs and alcohol back then.
The prosecutor submitted that it was remarkable that despite that concession Ms Chavasse was able to describe on that day where Mr Vickerstaff had a conversation with Mr Conteh.
The prosecutor submitted that the defendant in his recorded interview described having a conversation with Mr Conteh in the stairwell of block E. The defendant stated there was no one else there at the time which is consistent with Mr Conteh’s recollection that the assault occurred in the stairwell when no one else was present.
The prosecutor submitted that I would reject the evidence of the defendant and prefer the evidence of Mr Conteh given it is corroborated by objective evidence.

Defence submissions

Defence counsel submitted that the prosecution has abandoned all other particulars of the opening address such as the grabbing of Mr Conteh’s shirt and alleged poking of his eye. Defence counsel suggested that there is no evidence other than the evidence of Mr Conteh that the defendant punched him. Defence counsel submitted that there is a significant level of evidence indicating that no such assault occurred and therefore the allegation cannot be proven.
Defence counsel submitted that the prosecutor misrepresented the facts in relation to Ms Chavasse and Mr Conteh, stating that the incident occurred in the stairwell given that they both gave evidence that the incident occurred on a grassed area of Gowrie Court. That is critical in relation to the submission by the prosecutor that I disregard the evidence given by Ms Chavasse.
Defence counsel submitted that the complainant Mr Conteh stated that the incident occurred at around 3:30pm on a grassed area, the defendant punched him 4 or 5 times to the head, and multiple people witnessed those punches including a female, two males and Adrian. There was no independent evidence to support that version.
Defence counsel pointed out that despite Ms Chavasse’s ability to recall the incident she was able to recollect that Conteh and the defendant were arguing on a grassy area at the complex known as Gowrie Court and she did not see any physical altercation between the two men.
Defence counsel submitted that Ms Chavasse was within eyesight of the interaction between the defendant and Mr Conteh and therefore is a material witness who having been there would have observed whether the defendant punched Mr Conteh.
Defence counsel submitted that it is inappropriate for the whole of Ms Chavasse’s evidence to be disregarded. Defence counsel submitted her evidence was relevant, she gave sworn evidence and there was no challenge to her credibility only her reliability.
In relation to the prosecutor’s submission that the incident occurred in a stairwell with no one else present, there was no evidence to support that assertion. The only evidence to support that is the evidence of what Mr Conteh first told Constable Flint. Mr Conteh’s version was that was on a grassed area. [I also note he said it happened in the stairwell as well]. The evidence that the incident occurred in the stairwell contradicts the evidence of Mr Conteh who claimed a man named Adrian intervened.
In relation to the injuries sustained by Mr Conteh, it was the evidence of Constable Campbell that he observed Mr Conteh and was face-to-face with him and did not observe any injuries. Photographs showing those injuries are of poor quality. Defence counsel submitted there is no evidence to show that the bumps which are seen on his head are bruises or as a result of the interaction with the defendant. The defence counsel submitted that it is for the prosecution to prove that the bumps were caused by the defendant. [I note that Mr Conteh gave evidence that those were injuries to him and mark them on the photograph where it had occurred].
Defence counsel submitted that there were material inconsistencies in Mr Conteh’s evidence which would lead one to conclude that his evidence was not reliable or indeed credible.
Defence counsel described these inconsistencies as Mr Conteh’s reasons for attending Gowrie Court, which were to visit a friend Derek. Mr Conteh later indicated that he did not know who Derek was and it may have been Adrian. There was a contest about what Mr Conteh said about those who witnessed the offence. Mr Conteh said because they did not mean anything to him he did not mention them. Mr Conteh also contradicted himself in relation to saying that they did not say anything but then said that at least Adrian had said to stop assaulting him and ‘Graham please don’t.’
Defence counsel submitted there was a discrepancy in relation to the time when the offence occurred and when Mr Conteh rang police. In the 000 call Mr Conteh said he had a bump on the side of his head and he was bleeding, however Constable Flint did not observe any blood or injury which would cause bleeding.
Defence counsel submitted that it is appropriate for the court to direct itself in accordance with R v Murray (1987) 11 NSW LR at 12, where Lee J said at 19:
Where there is only one witness asserting the commission of a crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in.
Defence counsel submitted that the court must be satisfied that Mr Conteh is both an honest and accurate witness in the account he gave. Defence counsel submitted that I could not be so satisfied. Defence counsel submitted that even if I found Mr Conteh honest and accurate I cannot disregard the cogent and confident evidence of Mr Vickerstaff and Ms Chavasse who stated that there was no assault.

The Law

The elements of an assault require that there is an unlawful application of force upon a person without their consent to that application of force. The Crown must prove each element of the offence beyond a reasonable doubt. I note that the defendant does not have to prove anything and can remain silent. Having noted that I also note that the defendant provided a recorded interview with police as to his version of events. This interview was tendered in evidence before me by the prosecution.

Decision

As I have already indicated, this is a matter where the defendant represented himself on the middle day of a three day hearing being the day when Mr Conteh gave his evidence. The defendant cross-examined the complainant witness in this matter and sufficiently complied with the rules in Brown v Dunn (1893) 6 R 67 in my view.
I note the defendant was represented at the other two hearing dates. That was regrettable because the main witness for the prosecution gave his evidence on the day he was not represented.
Having said that, the defendant appeared to do a reasonably good job in cross-examining the witness.

Observations in relation to the evidence of Mr Conteh

I note that there are some key inconsistencies with the evidence given by Mr Conteh. Those inconsistencies were:
(a) Where the assault took place,
(b) The time it took place, and
(c) The reason he was there in the first place.
I note that the complainant Mr Conteh called 000 to report that he had been assaulted. There is evidence which was not controverted and which would appear to have been accepted by Mr Conteh, that the food van arrived around 14:30pm and Mr Conteh was at Gowrie Court at least at 15:30pm, when he says the assault took place. The independent evidence is that the 000 call was not made until 4:38pm that day, which was some one hour after the incident.
Mr Conteh said that he told police that there were other people there that day. There was no evidence from police in that regard.
None of the people said to have been there at the time of the incident were spoken to by police. No statements were taken. Mr Conteh said that Adrian, whom he didn’t really know because he called him Derek to begin with, lived in Block E below the defendant. It appears that Adrian was there at the time of the incident. I have no evidence before me as to whether any enquiry of Adrian was made or whether he was subpoenaed to give evidence. It would appear to me that he was an eyewitness to this alleged assault and therefore an important witness for the Crown. He was not produced.
I note that Constable Flint gave evidence that there was one bump on Mr Conteh’s head which is in photograph 1. Constable Flint marked that area with a blue pen.[6] I also note that Mr Conteh identified three areas one on his left side of his head, on top of his head one on his right side on top of his head and one at the very back of his head. Constable Flint did not give any evidence about those areas identified by Mr Conteh. He was not asked to do so either.
[6] Exhibit ‘P2’, photographs of Mr Conteh’s head, taken 18 December 2016.
I note that Mr Conteh said that he had some blood on his head from the assault. Neither of the police officers said they saw any blood or anything that may produce blood on his head. This is yet another inconsistency in Mr Conteh’s version of the events.
Constable Campbell said he did not see any injuries on him and he said he would have looked because he was face-to-face with him.
Those are significant inconsistencies because Constable Campbell did not see any injury, Constable Flint saw a bump on the side of Mr Conteh’s head and that is the only injury he saw. Mr Conteh identified a bump on the left, a bump on the right and one at the back of his head as the injuries he sustained from the punches.
I now turn to how Mr Conteh described being hit in his evidence. The description he gave was that the defendant was holding out his right arm extended with a closed fist and he indicated his fist hitting his forehead on the left side. He used his right arm to hit him with a closed fist and hit him on the top of the head. I note that that was a leading question and I give the answer the weight it is due given that factor.
Mr Conteh then gave evidence about being pushed and twisted and pushed to the ground and said at the time he was sick.
I note Mr Conteh then said that he found his hat and glasses at the grassed area where we the altercation took place. Mr Conteh said that he lost his glasses and hat during the course of the assault and he found them on the grassed area.

So we now have two areas where Mr Conteh says the incident was said to have taken place. That is either in the stairwell or on the grassed area outside of the stairwell.
I also heard the evidence from Ms Chavasse. Ms Chavasse gave evidence that she had very little recollection of the day because of the length of time since the incident and also possibly because she had been consuming illicit substances at the time.
Ms Chavasse was able to give some evidence about what she saw. Her evidence was not inconsistent with either the defendant’s evidence or for Mr Conteh’s evidence in some regards. It was her recollection that the defendant and Mr Conteh were speaking with each other and they were talking loudly at each other but they were not really angry words, in her view.
Ms Chavasse had a vague recollection that the argument occurred outside of Graham’s Block on the grassed area. Ms Chavasse stated that she did not see any physical altercation between Mr Conteh and the defendant. Ms Chavasse said the area where the conversation took place was downstairs just in the grassed areal. Ms Chavasse also said that there were other people there at the time of the argument.
I note prosecuting counsel submitted that I should reject her evidence. The reason the prosecutor suggested I should was because her evidence was unreliable. However I note that she was clear in her evidence that no assault took place. Further, she gave evidence that the conversation she saw took place on the grassed area, which is consistent with the second version that Mr Conteh gave and also consistent with where he said his hat and glasses were found. Her evidence was corroborated particularly in relation to where the argument took place and to some extent by the defendant in his recorded interview, where he said that no assault took place.
The defendant did not give evidence, as he is entitled to do. However I had a recorded interview conducted between himself and the police. The defendant denied the assault took place and said that he only spoke to Mr Conteh briefly. At the time he was more interested in getting the food from the Oz Harvest van.
The defendant said that there were several people around at the time of the conversation. That is not inconsistent with Mr Conteh’s version. I have not heard from any witness said to have been there at the time who could give some independent, objective evidence as to what took place that day.
The prosecutor submitted that I should reject the defendant’s evidence. However the defendant’s evidence is corroborated to some extent by Ms Chavasse. It was never suggested that Ms Chavasse gave evidence to bolster or to exonerate her partner.
I am left with a situation where I would have to reject the evidence given to police in the recorded interview by the defendant and to reject the evidence by Ms Chavasse. I note Ms Chavasse gave evidence under oath and much of that evidence was consistent with other witnesses.
In assessing the evidence given by Mr Conteh, his version was not consistent throughout his oral evidence. In my view he was rather cagey about why he was at the premises. He did not know the person he was speaking to and originally called him Derek. Further he gave several versions of the incident and the injuries he suffered.
It is difficult to assess where the truth lies. On the one hand I have Mr Conteh calling police via 000 to say he had been assaulted. I note that call was made at least one hour after the alleged assault took place. Yet Mr Conteh was still said to have been affected by what had occurred one hour after it had occurred. There were other inconsistencies which I have referred to about his evidence. I found Mr Conteh to be a very unreliable witness.
I am left in the position where I have evidence corroborated to some extent that the defendant did not assault Mr Conteh. Mr Conteh gave evidence which was inconsistent in a number of matters including where the assault took place and when the assault took place as well as injuries said to have been sustained. In my view it would be unsafe to accept the evidence of Mr Conteh.
I also had evidence from both the defendant and Ms Chavasse to say that an assault did not take place. Having considered all of the evidence I find that I cannot reject the evidence of Ms Chavasse or indeed the defendant. Having been unable to reject that evidence I am left with two versions of events.
I must be satisfied beyond reasonable doubt that the defendant applied unlawful force to Mr Conteh. On the evidence before me I cannot be so satisfied. I am not satisfied beyond reasonable doubt that Mr Vickerstaff assaulted Mr Conteh on 18 December 2016.
I therefore find the offence not proven. I dismiss the charge.

I certify that the preceding 140 numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Special Magistrate Hunter OAM.

Associate: Elinor Knaggs

Date: 16 May 2019

[2019] ACTMC 13

20 May 2019