Ji v Stone
[2023] ACTSC 54
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ji v Stone |
Citation: | [2023] ACTSC 54 |
Hearing Date: | 3 February 2023 |
DecisionDate: | 23 March 2023 |
Before: | Baker J |
Decision: | The application to adduce further evidence is dismissed. The appeal is dismissed. |
Catchwords: | CRIMINAL LAW – Magistrates Court Appeal – appeal against finding of guilt – s 214 Magistrates Court Act 1930 (ACT) – application to adduce further evidence on appeal – evidence in existence at time of Magistrates Court hearing – no reasonable explanation for previous failure to adduce evidence – whether adducing further evidence in the interest of justice – evidence in question does not give rise to reasonable doubt as to appellant’s guilt – application to adduce fresh evidence denied – nature of appeal from Magistrates Court to Supreme Court – whether inconsistencies in complainant’s account undermine credibility – whether comments of Magistrate demonstrate actual or apprehended bias – appeal dismissed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 26, 28(2)(a) Magistrates Court Act 1930 (ACT) ss 214, 214(2), 214(3), 214(4) Supreme Court Act 1933 (ACT), s 37O |
Cases Cited: | Ali v The Queen [2005] HCA 8; 79 ALJR 662 Fox v Percy [2003] HCA 22; 214 CLR 118 Galea v Galea (1990) 19 NSWLR 263 Garay v The Queen (No 3) [2023] ACTCA 2 Gindy v Capital Lawyers Pty Ltd [2022] ACTCA 66 Greenwood v Barlee [2018] ACTSC 46 Grey v The Queen [2022] ACTCA 2 Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 Hoyle v The Queen [2018] ACTCA 42 KLM v The State of Western Australia [2009] WASCA 73; 194 A Crim R 503 Kristiansen v Yeats [2022] ACTSC 351 Lancaster v Hyde [2016] ACTSC 50 Lawless v The Queen [1979] HCA 49; 142 CLR 659 Lukatela v Birch [2008] ACTSC 99; 223 FLR 1 M v R [1994] HCA 63; 181 CLR 487 McFarlane v Van Eyle [2022] ACTCA 68 McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298; 106 NSWLR 430 NS v Hotchkis [2019] ACTSC 309; 14 ACTLR 251 Nudd v The Queen (1983) HCA 9; 225 ALR 161 Ratten v The Queen [1974] HCA 35; 131 CLR 510 SBT v Wright [2021] ACTSC 322; 17 ACTLR 137 Sikorski v Gritsch [2002] ACTSC 55 Spatolisano v Hyde [2009] ACTSC 161 Sun v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; 81 FCR 71 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Upton v Cowling [2001] ACTSC 116 Warren v Coombes [1979] HCA 9; 142 CLR 531 |
Parties: | Denghu Ji (Appellant) Lauren Stone (Respondent) |
Representation: | Counsel M Chin ( Appellant) K McCann ( Respondent) |
| Solicitors Maxwell & Co Barristers and Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 27 of 2022 |
Decision under appeal: | Court: ACT Magistrate’s Court Before: Magistrate Stewart Date of Decision: 11 July 2022 Case Title: Stone v Ji Court File Number(s): 207951; 208114 |
BAKER J
Introduction
The offences giving rise to this appeal relate to events that are alleged to have occurred on 14 October 2019 in student accommodation at the Australian National University (“ANU”), where the appellant and the complainant were both studying.
At the time of the alleged offences, the appellant had been in an intimate relationship with the complainant for about a month. During this time, the appellant was also in a relationship with another woman, Ms Yang, who was living in China. The complainant was at this point aware of the appellant’s relationship with Ms Yang, but Ms Yang was not aware of the appellant’s relationship with the complainant.
On the morning of 14 October 2019, the appellant came to the complainant’s room and told her that he no longer wanted to continue his relationship with her. The complainant became distressed. After the appellant left the complainant’s room, the complainant contacted an ANU counsellor and told her that she was distressed and that she wanted to self-harm. The complainant also contacted Ms Yang and told Ms Yang about her relationship with the appellant.
The appellant found out that the complainant had told Ms Yang about their relationship and returned to the complainant’s room. The prosecution alleges that the appellant snatched the complainant’s mobile phone, and started deleting messages. The appellant then called Ms Yang using the complainant’s phone and asked her not to break up with him. The prosecution alleges that, as the complainant attempted to retrieve her phone, the appellant grabbed her arms with his right hand and pushed the complainant backwards onto the bed. This conduct was the subject of the first charge (common assault, contrary to s 26 of the Crimes Act 1900 (ACT)). The prosecution further alleges that the appellant then grabbed the complainant’s neck and applied pressure. This conduct was the subject of the second charge (intentionally and unlawfully choke, suffocate or strangle, contrary to s 28(2)(a) of the Crimes Act).
The ANU counsellor arrived at the complainant’s student accommodation within minutes of the alleged incident. She observed that the complainant was pale and that she had red marks on her neck. A residential manager that attended shortly after also described seeing pink finger marks on the complainant’s neck.
The complainant participated in a recorded statement with police on 15 October 2019, the following day. She was also examined by a doctor. On the same day, police became aware that the appellant was preparing to board a flight to China. The appellant was arrested and charged with the two offences now before the Court.
The appellant gave his account to police in a record of interview conducted after his arrest on 15 October 2019. In that interview, the appellant agreed that he went to the complainant’s room and told her that he wished to break up with her. He said that shortly after he left the complainant’s room, he received a message from the complainant which said “I didn’t want to take revenge. You forced me.” The appellant became aware that the complainant had contacted Ms Yang. The appellant said that Ms Yang was angry and wanted to break up with the appellant. The appellant returned to the complainant’s room. The appellant said that he grabbed the complainant’s phone and pushed her onto the bed with his hand “braced” on the complainant’s neck. The appellant denied that he applied pressure to the complainant’s neck when he did this. He said that he was acting in self-defence because he feared that the complainant may attempt to harm him or self-harm with a knife.
The appellant pleaded not guilty to both charges. The proceedings were heard before Magistrate Stewart (“the Magistrate”) from 4 to 6 November 2020. The evidence did not conclude on 6 November 2020. For reasons that are outlined further below, the final day of the hearing did not occur until 11 July 2022. At the conclusion of the hearing on 11 July 2022, the Magistrate delivered an ex tempore judgment in which he found the appellant guilty of both offences.
By Notice of Appeal filed on 9 August 2022, the appellant appeals against the Magistrate’s findings of guilt in respect of both offences. The appellant relies on the following four grounds of appeal:
(i)The findings and orders of the learned Magistrate were unsafe and unsatisfactory;
(ii)The findings and orders of the learned Magistrate were against the evidence and/or the weight of the evidence;
(iii)The learned Magistrate took into account irrelevant considerations (this ground of appeal is primarily focused on a contention that the Magistrate demonstrated actual or apprehended bias); and
(iv)The learned Magistrate failed to take into account relevant matters.
The appellant also seeks to adduce further evidence on his appeal.
The appellant’s application to adduce further evidence on his appeal, and the substantive appeal are dismissed for the reasons outlined below.
Background
The evidence in the Magistrates Court
The complainant’s evidence
The complainant’s evidence in chief was given primarily by way of an audio recorded interview with police, which occurred on 15 October 2019.
In that record of interview, the complainant explained that, at about 7:00am the previous day (that is, on 14 October 2019), she had started to message the appellant because she was angry with him about having a relationship with another woman in China (Ms Yang). The appellant came to the complainant’s student accommodation and they had a conversation. The complainant said that during this conversation, the appellant touched her breast area under her clothes. Initially, she did not say “no” or push the appellant away. Eventually she did push the appellant away and he stopped (this incident was not the subject of any charge). The appellant then left the complainant’s room.
The complainant was upset about what had occurred. She said that she wanted to use a knife to hurt herself. She emailed the ANU counsellor, saying “I am sorry I can’t come to you, can you come to me, that guy come to me again and hurt me again, and I am very depressed, I want to hurt myself, Catie please help please help please”. The complainant then called Ms Yang and told Ms Yang about her relationship with the appellant.
Shortly after this, the appellant returned to the complainant’s room and knocked for about a minute. This was about half an hour to an hour after the first visit. When the complainant let the appellant in, he grabbed her phone and deleted messages from between himself and the complainant and between the complainant and Ms Yang. He also used the complainant’s phone to call Ms Yang and ask her not to leave him. The complainant said that she tried to grab the phone back, but the appellant grabbed her arms together and pushed her onto the bed (first alleged offence: common assault).
The appellant then used one hand to pull the phone away, whilst he used the other hand to grab the front of her neck and to choke her. The complainant said that the appellant was grabbing her neck for about two minutes. During the first minute, the appellant was not gripping too tightly, and she was able to make some noise and to ask him to stop hurting her. She could hear Ms Yang on the other end of the phone telling the appellant stop hurting her. However, in the second minute, the appellant tightened his hand and she felt that she could not breathe (second alleged offence: choke/suffocate/strangle). She said that she felt “extremely afraid” and “close to death”.
The complainant was eventually able to push the appellant’s arm off her neck and stepped away from him. The appellant continued to speak with Ms Yang on the complainant’s phone in the complainant’s kitchenette. At this point, there was a knock on the door. The door was answered and the ANU counsellor came into the room. The appellant was still on the phone to Ms Yang at this time.
The complainant said that the ANU counsellor took photographs of red marks that she observed on the complainant’s neck and arms. The following day, the complainant was examined at a hospital and gave an interview to police.
The complainant explained to police that at the time of the incident, she had been in an intimate relationship with the appellant for about a month. She said that when she first entered the relationship with the appellant, she did not know that he was also in a relationship with Ms Yang. She said that she became aware of the appellant’s relationship with Ms Yang approximately one or two weeks into the relationship.
The complainant’s audio recorded interview with police was supplemented by brief evidence in chief in the proceedings before the Magistrate. In that evidence, the complainant was shown copies of the photographs that had been taken of the ANU counsellor. She identified red marks on her arm which she said were caused by the appellant grabbing her and three red lines which she said she had caused when she tried to hurt herself “not very deeply”. She said that the redness on her neck was caused by the appellant choking her. The photographs were admitted into evidence without objection.
The complainant was cross-examined about the appellant’s first visit to her room. She agreed that she told police that the appellant had “sexually assaulted” her, but said that she didn’t tell the doctor about it because she “didn’t want to say it.” She also said that she didn’t tell the ANU counsellor about this.
The complainant was asked about when she first found out about the appellant’s relationship with Ms Yang. She maintained that she only found out about that relationship 1 to 2 weeks into her relationship with the appellant. She agreed that she had wanted to marry the appellant and that she had spoken to her father about him.
The complainant was cross-examined at length about her mental wellbeing during the period around the incident. She agreed she was sad about the appellant’s relationship with Ms Yang. She also agreed she was depressed and had thoughts of self-harm and suicide around the time.
The complainant agreed she has been diagnosed with bipolar disorder and was prescribed medication (Lithium). She said there were periods where she had stopped taking her medication. She said that after she met the appellant, her condition became unstable and she began taking her medication again. She said that she had contemplated suicide.
The complainant was also cross-examined about an incident that occurred on or around 8 October 2019, when she attempted to self-harm in front of the appellant. The complainant agreed there was an incident where had she had taken a knife, and attempted to cut herself in front of the appellant. She agreed the appellant was scared by this. She denied threatening the appellant with the knife or saying “if you leave, I’ll kill you and I’ll kill myself”. However, she agreed that when she had the knife, she said “I want to kill myself” because she was “desperate”. Initially the complainant said that she could not recall if the appellant had taken the knife away, but when the complainant’s cross-examination continued the following day, she said that she “remember[ed] that [the appellant] took the knife away gently”.
The complainant was also asked whether she had a knife on the occasion when the appellant was alleged to have choked her. The complainant initially said that she could not remember, but after considering the question over the lunch break, she said that she recalled that she did have a knife on the bed.
The complainant agreed that she had told the police that the appellant sexually assaulted her on 25 or 26 September 2019 after an incident where she had grabbed a knife. She agreed that she had repeatedly told the appellant to stop, but that he did not. She said that she had only ever grabbed a knife once, and her memory of the date may have been incorrect. It was put to the complainant that her evidence in court was different to what she had told police (presumably referring to the complainant’s failure to mention the sexual assault in her evidence in chief). The complainant said that what she had told police was true, and that she didn’t mention it in her initial evidence because she “didn’t want to bring this matter [the sexual assault] to the court.”
The complainant was also cross-examined about messages that she had sent the appellant on WeChat. The complainant agreed that she regularly spoke with the appellant over WeChat. She said that she could not recall the exact messages that she sent in the period leading up to 14 October 2019, and explained that the appellant had deleted a number of those messages. However, the complainant agreed that she most likely sent messages to the effect “you don’t love me anymore” and “this is so painful I don’t want to live anymore”. She agreed that she had asked the appellant to choose between her and Ms Yang, and also agreed that she may have sent messages to that effect prior to the incident.
The complainant conceded she could not remember whether she had harmed herself before the appellant arrived at her room on 14 October 2019.
The evidence of the ANU counsellor
The ANU counsellor who attended the complainant’s student accommodation shortly after the alleged assault gave evidence in the prosecution case. She stated that she was employed by the ANU as a student welfare officer and knew the complainant in a professional capacity. On receiving the email from the complainant on 14 October 2019, the ANU counsellor was concerned about her welfare, alerted her supervisor and attended the complainant’s room.
When the ANU counsellor arrived, she saw the complainant and that the appellant was talking on a mobile phone. She said the complainant had an “incredibly pale face”. She noticed red marks around the complainant’s neck. The complainant was “visibly shaking.” The complainant told the ANU counsellor that the appellant had hurt and tried to choke her. The complainant also told the ANU counsellor that the appellant had become angry after she (the complainant) had spoken to the appellant’s girlfriend in China. She said that the appellant had held her down by the arms and wrists and had placed one hand around her throat, squeezing very tightly.
The ANU counsellor asked the appellant to leave the room. She photographed the red marks on the complainant’s neck and arms. Those photographs were tendered in evidence.
In cross-examination, the ANU counsellor agreed she had assisted the complainant previously, including for another relationship breakdown prior to this incident.
The evidence of the two residential managers
Two residential managers of the complainant’s residence also gave evidence.
On 14 October 2019, the first residential manager received a phone call from the ANU counsellor that a student required assistance. The first residential manager informed the second residential manager that there was an incident involving one of the students. They both immediately attended the complainant’s room.
The second residential manager gave evidence that he observed the complainant to be in a “very distressed state” and observed “pink marks on her neck that look as if a hand had been pressed there… and on her arm”. He said the marks:
looked kind of the width of a finger and there were several on the neck and then – they were pink in nature, sorry in colour rather, and they were both on the neck and on the arm, the right arm.
The first residential manager said that the complainant appeared to be “really distressed”. He was not asked whether he saw any marks on the complainant’s neck or arm.
Appellant’s record of interview
The appellant participated in a record of interview with police which was tendered by the prosecution in the proceedings (all questions and answers after answer 104 were excluded by the Magistrate and are not before the Court on this appeal).
In the interview, the appellant stated that he attended the complainant’s room to break up with her.
Shortly after the appellant left, he received a message from the complainant which said “I didn’t want to take revenge. You forced me”. He became aware the complainant had contacted his girlfriend, Ms Yang. He said that Ms Yang “was really upset and wanted to break up with me”. He returned to the complainant’s room.
The appellant said that when he came into the complainant’s apartment, he “grabbed” the complainant’s phone because he wanted “to stop this.” He said that he noticed the complainant “looking at the drawer in the kitchen”. The appellant said that, as a result of a prior incident where the complainant had grabbed a knife and pointed it at him in her kitchen, he became scared that the complainant would “do something stupid and then the same thing will happen again”.
The appellant stated that he “braced [his] hand on [the complainant’s] neck and push[ed] her out of the kitchen area and onto the bed.” He explained:
The reason I chose her neck, not the other part of the body, is because I had my phone in my left hand. I couldn’t control both of her arms at the same time. But I didn’t want to touch any sort of sensitive parts like her breasts or her tummy.
He said that although his “hand was around the neck all the time” the “only sort of movement [he] did is to push her, not choke her or strangle” and that he “had no intention to hurt her”. He said that while he was pushing the complainant, he was “actually on a phone call with [Ms Yang]”.
The appellant said after he pushed the complainant onto the bed, he “didn’t do anything more with her, [he] was just comforting [Ms Yang] on the phone.” The appellant said that when he finished the call with Ms Yang, the complainant stood up, and he also got up “to avoid giving [the complainant] any, like, discomfort”.
The appellant said he returned to the kitchenette, and continued to try to comfort Ms Yang on the phone, while the complainant continued to try to grab the phone from him. He said that he used his right hand to push the complainant to stop her from touching the phone. He said that he ended the call with Ms Yang when the complainant told him that she had called police and security. He also said that when he finished the call, he deleted the chat history between himself and the complainant on the complainant’s phone.
The appellant said as he ended the call, the ANU counsellor arrived and the complainant “all of a sudden started crying”. He saw the ANU counsellor take photos of the complainant’s injuries but said he was “pretty sure that [he] didn’t injure her”.
Report of Dr Russell Thomas
Dr Russell Thomas examined the complainant on 15 October 2019, the day after the alleged incident. His medical report was admitted into evidence by consent.
Dr Thomas reported that the complainant described experiencing a number of symptoms during and following strangulation. These symptoms included neck pain, dizziness and pain with swallowing. He found no visible sign of injury at the time of examination, but noted that it was possible that any injuries had resolved by the time of examination. He was provided with digital images of the photographs taken by the ANU counsellor, but noted the limitations and difficulties of interpreting injuries from such images.
Evidence of Constable Samuel Harris
Constable Samuel Harris gave evidence concerning the record of interview that was conducted with the appellant. This evidence was relevant both to the appellant’s application for whole or part of the interview to be excluded, and also to the weight to be placed on the appellant’s answers.
Constable Harris agreed that he spoke to the appellant to try and establish his fluency in English. He agreed that he decided to arrange a translator for the interview. He also agreed that he did not explain to the appellant that he was in an interview room because the police intention was to interview him.
Evidence of Constable Lauren Stone
Constable Stone was the informant in the matter. Constable Stone conducted the interview with the complainant. At the conclusion of the interview, she advised the complainant to attend the Canberra Hospital for an assessment of the injuries. Constable Stone also photographed the complainant’s injuries.
Constable Stone said that she became aware that the appellant was planning to catch a flight to China the following morning. As a result of receiving that information, other police officers attended the ANU and arrested the appellant.
The complainant provided Constable Stone with an email for Ms Yang. Constable Stone emailed Ms Yang and asked if she would be willing to speak with her in relation to the investigation. She did not receive a response to that email.
Constable Stone was cross-examined about notes she made during her initial conversation with the complainant and the ANU counsellor on 15 October 2019 about the incident. Constable Stone agreed that her notes recorded that the complainant had told her that:
(i) The appellant sent the complainant “a text saying he would come over and tell her which girl he would choose. He came over and they were sitting separately. He kept saying he wanted to have sex, getting close to her. Grabbing her arms.”
(ii) “She used both arms to push him off. Then he grabbed the quilt to try and hold over her face but she quickly got off the bed.”
(iii) “She yelled, ‘I’ve already called the police. If you kill me, you won’t get away with it’. They moved to the kitchen area and he told her to stay away from her.”
(iv) “She had ended up on the bed because he had pushed her backwards onto the bed with one hand. The other still holding the phone and then held her down by her throat.”
Constable Stone stated that in her initial conversation with the complainant on 15 October 2019, she indicated that she had been sexually assaulted by the appellant during their relationship. Constable Stone said the complainant attended the police station on 21 October 2019 and provided her with a version of events in relation to the sexual assault that she had earlier indicated. After receiving advice from a member of SACAT (a specialist police team for sexual assault allegations), the complainant said she did not wish to pursue the matter because talking about the issue was too traumatic for her at that time.
Constable Stone recalled that the complainant mentioned that she previously used a knife to scrape her arm. Constable Stone could not recall when the complainant said that this incident occurred but said that it might have been within the month that she had been dating the appellant.
Constable Johnston
Constable Johnston gave evidence concerning the circumstances in which the appellant made his record of interview, particularly concerning the answers given by the appellant from question 105. (These answers were ultimately excluded by the Magistrate.)
Procedural history
There were a number of unfortunate delays in the Magistrates Court.
The proceedings were heard from 4 November to 6 November 2020. Over these three days, the complainant gave evidence and was cross-examined. Each of the prosecution witnesses other than Constable Johnston also gave evidence.
When the matter did not conclude on 6 November 2020, the hearing was adjourned to 13 November 2020. From that time, there was a series of adjournments in the hearing:
(i) The hearing on 13 November 2020 was vacated and adjourned to 14 May 2021 because of the unavailability of a prosecution witness;
(ii) The hearing on 14 May 2021 was vacated and adjourned to 27 September 2021 because of the unavailability of an interpreter;
(iii) The hearing on 27 September 2021 was vacated and adjourned to 14 April 2022 because of the difficulties proceeding in a COVID-19 safe manner where the appellant required an interpreter;
(iv) The hearing on 14 April 2022 was vacated and adjourned to 11 July 2022 because of the unavailability of the prosecutor due to a personal commitment, and because Mr Ken Archer (counsel who had represented the appellant until this time) had been appointed as the ACT’s first dedicated coroner.
After Mr Archer’s appointment, the appellant’s solicitor engaged Mr Steven Whybrow SC to represent him. However, on 6 June 2022, Mr Whybrow SC informed the appellant’s instructing solicitor that he had accepted a short notice brief to act in a high-profile trial and was no longer available to appear for the appellant. The appellant then engaged Mr James Sabharwal to represent him in the proceedings.
Mr Sabarwhal appeared for the appellant on 11 July 2022, which was the final day of hearing. On that day, the prosecution called its last witness, Constable Johnston, in relation to matters concerned with the admissibility of the appellant’s record of interview and the alleged sexual assault. Mr Sabharwal informed the Court that he did not propose to call the appellant.
Mr Sabarwhal then made an application for the appellant’s record of interview to be excluded under ss 135 or 137 of the Evidence Act 2011 (ACT). After hearing submissions from both parties, the Magistrate excluded the questions and answers in the record of interview after Question 104. Both parties made oral submissions to the Magistrate.
The Magistrates’ Decision
At the conclusion of the parties’ submissions on 11 July 2022, the Magistrate delivered an ex tempore judgment in which his Honour found both offences proved beyond reasonable doubt.
The Magistrate commenced by giving himself the appropriate directions about the need for the prosecution to prove guilt of each charge beyond reasonable doubt and the right to silence. His Honour also directed himself in relation to self-defence. No complaint is made in relation to any of those directions. His Honour then summarised the evidence that had been adduced in the proceedings.
The Magistrate recorded that he had paid careful attention to the complainant’s evidence and found that she had “impressed [him] as a witness of truth”. The Magistrate observed that the complainant had been subject to lengthy cross-examination by a “skilled cross-examiner”. The Magistrate held that there had been nothing in the complainant’s answers, demeanour or appearance that indicated that she was “doing anything but trying to tell the truth and trying to be as reliable as she could be.”
The Magistrate continued:
The most compelling evidence in this hearing is the injuries to the complainant’s neck. There is absolutely no explanation on the defence case [of] how those injuries got there and there was certainly no allegation of her self-harming on her neck in between what had occurred between the complainant and the defendant and by the time ANU staff had arrived. Not that the defendant has to explain anything but in my view that was amongst the most compelling evidence along with the evidence of the complainant herself.
The Magistrate did not accept the appellant’s account of what occurred on 14 October 2019. The Magistrate noted that the appellant’s account was that he had pushed the complainant to the bed because she had “looked at” the kitchen drawer. His Honour found that this was not credible, particularly in circumstances where he said that he had seen a knife on the bed earlier that day.
The Magistrate found that the appellant’s interview was “self-serving and untruthful about what had actually occurred”. His Honour was of the view that the appellant had engaged in “repetitive gaslighting”, which he explained meant “attempting to use the complainant’s mental illness against her”.
The Magistrate found both offences proved beyond reasonable doubt, the first charge on the basis that the appellant pushed the complainant away when he was using her mobile phone; and the second charge on the basis that after the appellant pushed the complainant on the bed, he put his hand around the complainant’s neck and squeezed her throat.
Application to adduce further evidence
Introduction
By application dated 4 November 2022, the appellant seeks leave to adduce further evidence on the appeal, namely:
(a)An affidavit of the appellant dated 26 January 2023, which sets out the appellant’s relationship with the complainant and his account of the events giving rise to the alleged offences (“the substantive affidavit”). In this affidavit, the appellant said that since the charges were laid, he had “been willing to give evidence to the Court and be subject to cross-examination.” He asserted that the fact that this did not occur “was not my choice”.
(b)Copies of written communications between the complainant and appellant prior to the incident relevant to the complaint and copies of written communication between the complainant and Ms Yang (Annexures A and B to a second affidavit of the appellant, also dated 26 January 2023) (“the WeChat messages”); and
(c)Evidence of a prior police complaint that the complainant made in respect of an abusive relationship that she had in April 2019 with another person (Annexure C to the appellant’s second affidavit).
The written application also indicated that leave was sought to adduce evidence of an expert witness relating to the injuries depicted in the photographs taken by the ANU counsellor. However, at the oral hearing, Mr Chin, who appeared for the appellant in this court (and who had instructed counsel in the proceedings below), explained that expert evidence had not been obtained due to cost considerations and that this ground of appeal was not pressed.
The application was supported by an affidavit of Mr Chin. In his affidavit, Mr Chin set out the procedural history of the proceedings, including the changes in counsel, and asserted that decisions about whether to call the appellant as a witness and/or to tender the WeChat messages “were not addressed to finality, due to successive changes in counsel and the successive adjournments of the trial”.
The respondent opposed the admission of further evidence on the appeal. However, the respondent accepted that it was appropriate for the additional evidence to be provisionally admitted for the purpose of considering the appeal, with the final decision concerning admissibility to be determined as part of the resolution of the appeal.
The additional evidence sought to be adduced
The appellant’s affidavit
In the substantive affidavit, the appellant states that he and the complainant began a relationship in September 2019, after which they saw each other “every day for about one week” and then less frequently for the next two to three weeks. The appellant states that he was aware that the complainant had an ex-boyfriend who was abusive towards her, and that she suffered trauma as a result of that relationship. The appellant states that he “wanted to take care of [the complainant] for a while but I did not want to have a long-term or exclusive relationship with her”.
The appellant states he “was very open with [the complainant] about my relationship with [Ms Yang]” and that from the beginning of their relationship, the complainant “always knew of the long-term friendship and relationship that I had with Ms Yang for the previous eight years”. The appellant attaches a WeChat message sent by the complainant to Ms Yang on 14 October 2019 at 1:56pm Canberra time (that is, between the first and second incidents), which states:
Your boyfriend, Ji Denghu, lied to me, telling me that he doesn’t have a girlfriend. He slept with me and tricked me out of my stuff. He caused me to hurt myself. I planned to call the police. I already notified the university. Before me, he also hurt two Foundation Course girls. He lied to me and had a relationship with me.
The appellant states that “all of the assertions in that WeChat message by [the complainant] are false”.
The appellant also states that he was aware of the complainant’s mental health issues, in particular, that the complainant suffered from bipolar disorder, and that she was taking lithium carbonate as medication for this condition.
The appellant provides an account of an incident which occurred in late September or early October 2019 when the complainant and the appellant went to visit a friend of the complainant. The appellant says that the complainant’s friend was upset after a break-up with her boyfriend and was self-harming. On the way to the friend’s place, the appellant asked the complainant whether he could borrow her phone to call Ms Yang. The appellant says that the fact he asked this of the complainant demonstrates that “if I was denying a relationship with [Ms Yang], which I was not, it would have been strange to use her phone to call [Ms Yang]”.
The appellant says that, over time, the complainant began to be upset about his relationship with Ms Yang. He says that the complainant wanted to be his exclusive girlfriend and for him to marry her. She said that her parents would approve of the marriage. The appellant explains that he realised he had to end his relationship with the complainant, but was worried about how the complainant would react as “there is no easy way to end a relationship with someone who is obsessed with you”.
The appellant also states that, on 8 October 2019, in response to the complainant demanding that the appellant end his relationship with Ms Yang, he attempted to end his relationship with her. The appellant states the complainant “reacted by abusing me and threatening me with a knife”. He says that the complainant grabbed a knife from her kitchen and stood with her back to the entrance door of her room so he could not get out, and said “if you leave, I’ll kill you and I’ll kill myself”. The appellant says that he “grabbed the knife with my left hand by the sharp edge and took it out of her hands.” The appellant explains that he used his left hand because his right hand was permanently injured in an accident that occurred when he was a teenager.
The appellant states that, following this incident and in the lead up to 14 October 2019, he saw the complainant around the university, and each time “she was abusive and made self-harm threats and death threats to me”.
The appellant states that on 14 October 2019 at around 11:45am, he attended the complainant’s room to break up with her. He saw that “her face was red” and that she had been crying. He also saw “red marks like lines or stripes or scratches on both of her forearms”. The appellant does not recall whether he saw any red marks on the complainant’s neck.
The appellant states that he told the complainant that he was continuing his relationship with Ms Yang. The complainant was upset and said “Don’t leave me”. He then stayed and comforted her for about an hour before leaving. When the appellant arrived back at his room, he received a WeChat message from the complainant stating “I didn’t want to take revenge. You forced me”.
The appellant says that he then tried to contact Ms Yang, who had messaged him stating that she would not talk to him because she was receiving WeChat messages from the complainant about him. He decided to go back to the complainant’s room to speak with Ms Yang on the complainant’s phone.
When he attended, the appellant says that he again observed the marks on the complainant’s arms “from her self-harm”. The appellant called Ms Yang from the complainant’s phone. At first the complainant “did not resist me from picking up her phone”. The appellant then asked Ms Yang not to break up with him and not to believe what the complainant said. The appellant agrees that he started deleting the WeChat messages between him and the complainant from her phone. The appellant says the complainant tried to grab the phone from his hands and “repeatedly hit me on my head, my shoulders and my arms” in attempting to do so. He says he held the phone in his left hand, and put his right hand (the permanently injured hand) up “as a barrier” to stop her from grabbing the phone.
The appellant says that he saw the complainant “stepping towards her kitchen” and became afraid “that she might get a knife” as she had done previously, so he moved to stand between her and the kitchen. He says that the complainant was on her bed and he was still blocking her from reaching the phone. He says that he “rested my hand on [the complainant] in the area between her chest and her neck and in my other hand I was calling Fan Yang.”
He then states that:
[The complainant] and I fell onto her bed. She was lying on the bed and I sat up but still had my right hand held against her body. But I did not apply any force to her body.
The appellant states that for the “whole time” he was holding her phone talking with Ms Yang and deleting messages. He states he was on the phone to Ms Yang for about “1 minute and 30 seconds”. He says that he was in the complainant’s room for “a very short time” before the ANU counsellor arrived.
The appellant also says that at the time of the incident, his English was not proficient enough to understand the “Australian legal system and the procedures and practices by which Police put pressure on people to be interviewed”. He explains that “when I said that I put my hand on [the complainant] below her neck and above her chest and did not apply any force, the police kept on saying ‘you put your hand on her throat’”.
The WeChat messages between the complainant and the appellant
The WeChat messages between the complainant and the appellant have been translated from Chinese to English by a NAATI (National Accreditation Authority for Translators and Interpreters) certified translator.
The earliest message produced is 13 October 2019. On that date, there are conversations between the appellant and the complainant from 5:09am. The messages commence with a conversation about whether the complainant can borrow a quilt from the appellant as she is cold. After further exchanges, the complainant then asked whether there is “really no solution?”. When the appellant did not reply, the complainant said “You don’t love me anymore”.
The complainant asked the appellant what his holiday plans are, and asked whether he will sleep with his ex-girlfriend for three months. The appellant did not reply. The complainant then said “this is so painful. I don’t want to live anymore.” She referred to staying in the hospital and then stated:
You really don’t love me anymore. You don’t reply to my messages. You don’t even want to keep my stuff. You’ll drawing a clear line between us.
At 5:46am the complainant apologised and said that she was miserable. She explained that she was having amenorrhea and was in a lot of pain. She asked whether the appellant could come to take care of her. There was no response to this message.
Early in the morning on 14 October 2019, the complainant texted the appellant and said that she was waiting for her laundry. She asked if she could come over because she was bored. The appellant replied shortly after saying, “You only miss me when you’re bored?”
The complainant then sent a message referring to her father having agreed that she can “be with” the appellant, but added “you have to break up with her after the holiday”. She said “I’ve been working hard on our relationship.” The appellant replied “good luck” and “you worked hard.” The complainant then said “I want us to get married in China next year when we reached the marital age”. She asked the appellant whether he would like to have a video chat with her father. The appellant replied “No” and “Why would I want to video chat with your dad? Do I marry him?” The complainant said that she was afraid that the appellant wouldn’t trust her words. The appellant queried whether he would “trust something by hearing it several times”, commenting that the complainant’s credibility was “not very good” with him, and concluded that he “definitely will not trust another’s opinion.” The complainant continued “I’ve talked with him about my idea. I think we suit each other, in our mind or any other aspects. He also understands that.” The appellant responded “Emmm…” and “Okay”. He again said “you worked hard”.
The complainant then disclosed that her father had said that he didn’t set a “proper role model for [her]”. The appellant responded “Your value is crooked. Its my fault, so I’ll compromise”. The complainant said “This is good actually. Even if we get married, as long as you don’t do stuff worse than my dad has done, I generally wouldn’t mind”.
The complainant then sent a message disclosing that her friend was mad when she heard that the appellant proposed to go and stay with his ex-girlfriend for three months, but reassuring the appellant that he didn’t need to worry about her being mad at him. The appellant replied “I’ll let you know my decision before I fly back”. Later in the exchange, the appellant said “You’ll know soon” and “This is… awesome”. The complainant responded “I’m a bit scared”.
At 11:42am on 14 October 2019, the complainant sent a text saying “Why do you have to see me? Aren’t you sick of me?” The following exchange then occurred:
[Appellant] I need to tell you my decision.
[Appellant]: This is serious.
[Appellant] So I have to tell you in person.
[Complainant] It would be cruel if you want to reject me in person.
[Complainant] You might as well just tell me to die.
[Appellant]: No.
[Appellant]: My decision is not just a statement.
[Appellant]: Relax.
[Complainant]: You need to write an essay?
[Appellant]: No.
[Complainant]: Thousands of words?
[Appellant]: You’ll see when we meet.
The complainant asked the appellant to let her “calm down for a couple of minutes”. She said that she would “tidy up my stuff” because she didn’t want him to “see that scene again to let you down”.
The next message was sent at 12:47pm on 14 October 2019 (that is, after the appellant had first gone to the complainant’s room to break up with her, but before the appellant returned to the complainant’s room, when the offences are alleged to have occurred). In that message, the complainant stated “I didn’t want to take revenge. You forced me.”
At 6:03am on 15 October 2019, the complainant sent a lengthy message to the appellant in which she said:
JI Denghu. I have saved our chat, so deleting them won’t do anything. Also, don’t harass my friends. It was you who left her phone number in my phone, so I get to add her on WeChat. You believe everything I said. So naïve. Jingjing doesn’t know [Ms Yang] at all. How can she have her WeChat? Think about your own mistakes. When you hit on me behind [Ms Yang’s] back, you even changed your WeChat album cover. It’s the same thing. As for that white guy, I never break up with him. He was just asking me to marry him next year. I turned him down. I’m not that easy. What’s your decision? Telling me you chose me and telling [Ms Yang] that you always love her? Haha. Luckily I am well prepared. If I hadn’t notify the police and uni, am I rotting in my room now? I’m genuinely shocked the moment you choked me and attempted to kill me. From now on, we are nothing but strangers. Why didn’t you just kill me? So I wouldn’t see what a hypocrite you are. Haha, and you tell [Ms Yang] that you earned your Switch through a game? What a shame. For a person with no heart, only punishment can make him tremble. Thanks for the lesson. The love game I played against you is so thrilling. Do you still dare to say you like me? Do you? A broken soul like you who break other’s heart will never have a real relationship, because you don’t have any feelings. Just a walking body, like a machine. You only think about a women’s vagina and soft bosoms. You’ll hurt another kind woman later. If you apologise to me sincerely, I wouldn’t have to see your ugly face in court. Otherwise, I will destroy you dirty sociopath in the name of justice. I’ll make you notorious and completely ruin your reputation. No more innocent girls will fall victim to you. Come back to me? Haha. [Ms Yang] is a kind and gentle woman. She supressed her pain and wouldn’t fight with you. But do you think she’s easy to control? You ask her to promise to you? And tell her you love her? You tell other people that she is your girlfriend in front of me. I wouldn’t believe a word. She was dumped by your friend and you simply took over. Can you tolerate that? Will you love her? Love my ass! You are just a psychopath! Eight years of love. Eight shit. I guess you spent the first seven years drenched in jealousy and envy. You showed me her video and told me she’s a lesbian. You disrespect her, and I’ll teach you a lesson for her. She will never trust you and escape from you control freak soon. I wish you good luck with your future endeavours. It is not too late now. If you do too much evil, karma will bite someday. Who knows whose daughter will you mess up? I’m warning you, be careful when walking in the dark. You are the second to hurt me. A person who disrespect others will never gain their respect. Your lack of manner makes me sick.
Later that morning, the complainant sent further messages to the appellant, including:
JI Deng Hu, fuck you.
… Fuck your whole family.
What a cutie. I love you. Don’t forget me. Enjoy the PlayStation. It will forever be yours. I kept some trophy too. I still have your pillow. Smells nice.
Little liar. Don’t be a big fat liar in the future. You’ll end up in jail.
The WeChat messages between the complainant and Ms Yang
I was informed that the times on the WeChat transcript of the conversation between the complainant and Ms Yang were not accurate, as the time stamp on the messages were in Chinese time.
The WeChat transcript records that, on 14 October 2019, the complainant messaged Ms Yang and said that she needed to speak to her urgently. She told Ms Yang that “your boyfriend [the appellant] lied to me… telling me that he doesn’t have a girlfriend.” She said that the appellant “slept with me and tricked me out of my stuff”. She also said that he “caused me to hurt myself.” She said that the appellant had been in a relationship with her for about a month.
Mr Chin, who appeared for the appellant, submitted the “thrust” of the messages were that the complainant made representations to Ms Yang to end her relationship “with this two-timing dude who she says has been deceiving her”. The appellant submitted the purpose of leading this evidence is:
… to show that the complainant was enacting revenge firstly by getting the ANU and the police onto the defendant through [the ANU counsellor], and then trying to make representations to [Ms Yang] to break up the relationship.
The prior police complaint
The ACT Police report relates to an occasion in April 2019 when the complainant attended a police station and reported that she had been the victim of an abusive relationship (in relation to another person). The police advised the complainant to get a domestic violence order and to request to change dorm rooms so that her former partner could not locate her.
The application to adduce further evidence
Applicable principles
Sections 214(3) and (4) of the Magistrates Court Act 1930 (ACT) provide as follows in respect of the adducing of further evidence on an appeal from a decision of a Magistrate:
(3) In an appeal to which this section applies, the Supreme Court must—
(a) if it considers it necessary or expedient to do so in the interests of justice—
…
(iii) receive the evidence, if tendered, of any witness; and
(b) receive evidence with the consent of the parties to the appeal.
(4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if—
(a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and
(b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
The application of s 214 was considered in Greenwood v Barlee [2018] ACTSC 46 at [41] – [42], SBT v Wright [2021] ACTSC 322; 17 ACTLR 137 at [43] – [67] and Kristiansen v Yeats [2022] ACTSC 351 at [41] – [42].
As outlined in these authorities, there are three different bases upon which additional evidence may be admitted under s 214:
(i) Where the parties consent (s 214(3)(b) of the Magistrates Court Act);
(ii) Where there is a “reasonable explanation” for the previous failure to adduce the evidence (s 214(4)(b) of the Magistrates Court Act); and
(iii) Where the Court otherwise considers it to be “necessary or expedient” in “the interests of justice” for the evidence to be admitted (s 214(3)(a) of the Magistrates Court Act).
Categories (ii) and (iii) correspond, in general terms, with common law authorities concerning the distinction between ‘fresh’ and ‘new’ evidence: see Ratten v The Queen [1974] HCA 35; 131 CLR 510 at [517] and Lawless v The Queen [1979] HCA 49; 142 CLR 659 at [675]. Category (ii) broadly corresponds with what is referred to as ‘fresh evidence’, namely, evidence that could not have been obtained with the exercise of reasonable diligence, whilst category (iii) broadly corresponds with what is referred to as ‘new evidence’, namely evidence that could have been obtained with the exercise of reasonable diligence.
At common law, ‘fresh evidence’ (evidence which could not have been discovered with the exercise of reasonable diligence) is received more readily than ‘new evidence’ (evidence that was actually or constructively available to the accused at the time of trial): Hoyle v The Queen [2018] ACTCA 42 at [27] – [31]; see also Grey v The Queen [2022] ACTCA 2 at [209] – [210].
Similarly, under s 214(4), additional evidence must be admitted where there is a “reasonable explanation” for the previous failure to adduce the evidence; the evidence is credible; the evidence would have been admissible in the proceedings below; and the evidence could afford a ground of appeal. However, where there is no “reasonable explanation” for the failure to adduce the additional evidence, the evidence will not be admitted unless the appellant satisfies the Court that it is “necessary or expedient” in “the interests of justice” for the evidence to be admitted.
The admission of further evidence under the “interests of justice” limb in s 214(3) of the Magistrates Court Act may be more liberal than the admission of ‘new evidence’ at common law: Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 at [37(iii)] (Refshauge J). However, the determination of what is in the interests of justice remains “heavily influenced by the notion of a miscarriage of justice as explained by the High Court”: Spatolisano v Hyde [2009] ACTSC 161 at [38] (Refshauge J).
An appellant who seeks to establish that a miscarriage of justice has arisen by reason of the failure of counsel to adduce evidence carries a “heavy burden”: TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [74], per McHugh J. This “heavy burden” is “a consequence of the adversarial nature of our legal system and the role and function of counsel”: TKWJ at [74]. Counsel is “in effect the party's agent” who is "ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted": TKWJ at [74].
For this reason, it will be rare that a miscarriage of justice will have occurred where there is a reasonable explanation justifying the conduct of counsel in the particular case. As Hayne J held in Ali v The Queen [2005] HCA 8; 79 ALJR 662 at [25]:
If there could be such an explanation, it follows from the fundamental nature of a criminal trial as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred.
It is particularly difficult to establish that a miscarriage of justice has occurred as a result of a decision that an accused should not give evidence. “There will always be an obvious forensic advantage to be gained from failing to give evidence, in the lack of exposure to cross-examination”: KLM v State of Western Australia [2009] WASCA 73; 194 A Crim R 503 at [59] (Martin CJ, in dissent, but not as to the principles to be applied; see Pullin JA and Le Miere AJA at [88]); see similarly Nudd v The Queen [2006] HCA 9; 225 ALR 161 at [31] (Gummow and Hayne JJ).
Is there a “reasonable explanation” for the failure to adduce the additional evidence?
Mr Chin submitted that the additional evidence in the present appeal should be admitted because the adjournments and changes in counsel meant that “fundamental issues for the defence were not addressed” and “fell through the cracks in the counsels’ floors”.
It is extremely unfortunate that the proceedings in the Magistrates Court were delayed as they were. Ultimately, there was an interval of some 20 months between the first three days of hearing in November 2020 and the conclusion of the hearing on 11 July 2022. As a result of that delay, and through no fault of the appellant, it became necessary for him to engage new counsel on two separate occasions.
However, I do not accept that this delay or the consequent change in counsel that was necessitated by that delay amounts to a “reasonable explanation” for the failure to adduce the additional evidence in the proceedings below. The additional evidence was available prior to the commencement of the hearing in the Magistrates Court and was provided to counsel appearing for the appellant. Indeed, Mr Chin (who instructed counsel in the proceedings below) informed the Court that the appellant’s substantive affidavit setting out his account of the events in issue had been prepared prior to the hearing in the Magistrates Court and that this affidavit, together with the WeChat messages, had been used by Mr Archer in cross-examining the complainant.
There were sound forensic reasons for a decision to be made by both counsel to determine not to tender the WeChat messages and for the appellant not to give evidence in the proceedings.
The appellant asserted in his affidavit that the decision not to give evidence was not his “choice”. However, this assertion was not explained. There is no evidence as to whether the appellant received any advice from counsel (either Mr Archer or Mr Sabarwhal) on the questions of whether he should give evidence, or whether the WeChat messages should be tendered; nor is there any evidence on the appeal as to whether the appellant provided any instructions to his legal team on either of these issues. Significantly, there is no evidence that suggests that Mr Sabarwhal or Mr Archer acted contrary to any instructions given by the appellant, or that either gave the appellant incorrect legal advice; cf Nudd at [17] (Gleeson CJ). Whilst the appellant’s counsel changed, the appellant was represented by a single instructing solicitor throughout the Magistrates Court proceedings. If the appellant had given clear instructions to his legal team that he wished to give evidence, it might be expected that the appellant’s instructing solicitor would remind counsel of those instructions.
In his oral submissions, Mr Chin acknowledged that there was no evidence (from himself as the instructing solicitor, from counsel or the appellant) as to why it was determined that the additional evidence should not be adduced in the proceedings before the Magistrate. Mr Chin further accepted that, in the absence of such evidence, the appellant had not established that there was a “reasonable explanation” for the failure to call evidence which was available to be adduced in the proceedings below.
Rather, Mr Chin submitted that a refusal to admit the evidence would result in a “miscarriage of justice”. In this respect, I understood Mr Chin to rely on the third basis for admission of the evidence, namely that the Court otherwise considers it to be “necessary or expedient” in “the interests of justice” for the evidence to be admitted (s 214(3)(a) of the Magistrates Court Act). It is to that issue that I now turn.
Is it “necessary or expedient” in the “interests of justice” for the further evidence to be admitted?
As noted above, the admission of further evidence under the “interests of justice” limb in s 214(3)(a) of the Magistrates Court Act may be more liberal than the admission of ‘new evidence’ at common law. However, consideration of where the interests of justice lie must nevertheless take into account the fundamental features of the “adversarial nature of our legal system and the role and function of counsel”: TKWJ at [74]. Because counsel is a “party’s agent”, there will generally be no miscarriage of justice where there is a reasonable basis for counsel to decide not to adduce evidence.
In the present case, it was well open to counsel to decline to call the appellant to give evidence. The appellant had participated in a record of interview, which was tendered in the prosecution case. This record of interview contained the appellant’s account of the events of 14 October 2019, as well as his account of the context in which these events occurred, including the incident where the complainant self-harmed in his presence on 8 October 2019. As counsel for the prosecutor submitted on the appeal, the tender of this record of interview meant that “the appellant’s version was before the Court without the risk of cross-examination.”
There would have been considerable risk in calling the appellant to give evidence. For example, in his affidavit, the appellant states that he came and forcibly took the complainant’s phone and that he held her down because she was reaching for her phone. He also suggests that the complainant “fell” on her bed. In contrast, in his record of interview, the appellant said that he “braced [his] hand on [the complainant’s] neck and push[ed] her out of the kitchen area and onto the bed.” Calling the appellant to give evidence would have risked exposing these inconsistencies.
Real risk would also have attended the tendering of the WeChat messages. A number of the WeChat messages strengthened the prosecution case. For example, the complainant sent a WeChat message shortly after the second time that the appellant came to her room (that is, just after the appellant is alleged to have assaulted and choked the complainant), which said:
I’m genuinely shocked the moment you choked me and attempted to kill me. From now on, we are nothing but strangers. Why didn’t you just kill me?
Similarly, in an exchange on 16 October 2019, the complainant and Ms Yang had the following conversation:
Yang: Can I ask if he broke into your room and choke you, or were you two in the same room already?
[Complainant]: He rushed into my room, and took my phone to talk to you.
[Complainant]: Then he choked me.
[Complainant]: He knocked, and I opened. Then he grabbed my phone. I was trying to take it back. Then his hand pressed me onto my bed. It got tighter and tighter. I couldn’t breathe.
Adducing the WeChat messages would have brought this evidence of contemporaneous complaint into evidence before the court.
To avoid the potential forensic disadvantage of adducing such evidence, the appellant’s counsel instead put each of the most significant messages to the complainant in cross-examination. For example, Mr Archer put to the complainant that she had sent the appellant “messages saying things like ‘You don’t love me anymore’ and ‘this is so painful, I don’t want to live anymore.’” Whilst the complainant initially said that she could not remember sending these texts, she ultimately conceded that she was “quite upset during that time, so probably I sent a message, something like that.”
Mr Archer also put the following messages to the complainant in cross-examination:
After [the appellant] left [the first time] did you call [Ms Yang] or start sending her text messages? -- Yes, I send a message to [Ms Yang] and told her I was hurt by [the appellant] and this way he knew that – she knew she was cheated.
Did you also send a message to [the appellant]? -- I don’t remember whether I send a message to [the appellant] but [Ms Yang] was making telephone call to [the appellant] so probably [Ms Yang] told [the appellant] about that.
Did you send a message to my client – to [the appellant] – saying ‘I didn’t want to take revenge? You forced me’? You do remember that quite clearly? -- I don’t even remember whether I have sent message. How can I recall the content of a message?’
Although the complainant did not recall sending the message, there was no dispute between the parties that the message referring to revenge had been sent by the complainant. In his closing address, the appellant’s counsel submitted “Then there are the nature of the texts sent by the complainant to the defendant, including one where she says ‘I don’t want to, but I’ll take revenge on you.” The prosecutor did not submit otherwise.
In short, the approach adopted by the appellant’s counsel at first instance, of cross-examining the complainant about the WeChat messages, but not tendering the messages, enabled the appellant to have the benefit of the messages that assisted his case, whilst avoiding the forensic disadvantage of having messages admitted into evidence which had the potential to undermine his case.
A hearing in the Magistrates Court is not a ‘dry run’ which permits an unsuccessful accused to ‘try out’ alternative forensic decisions on appeal. There were good reasons for the appellant’s counsel to decide not to tender the WeChat messages and there were also good reasons for the appellant not to give evidence in the proceedings. It is not “necessary or convenient” to permit the appellant to rely on evidence that was not adduced for good reasons in the proceedings below.
This leaves the ACT Police Report of evidence of complainant’s prior police complaint of an abusive relationship she had in April 2019 with another person. On the appeal, Mr Chin properly accepted that this evidence could not be adduced as tendency evidence and that the report was only relied on as context evidence. However, even as context evidence, the Report adds nothing of relevance to the issues in dispute. It is also apparent that this evidence was also available to be adduced in the proceedings before the Magistrate.
These findings are sufficient to dismiss the appellant’s application to adduce further evidence om the appeal. However, for completeness, I record that I carefully considered the appellant’s affidavit and the WeChat messages in the context of the evidence as a whole. The further material did not cause me to have doubt as to the appellant’s guilt.
The appellant’s affidavit adds little to his record of interview, and in fact undermines it in some respects. The appellant’s statement in his affidavit that his record of interview was not reliable because his English was not proficient is not borne out by the evidence. The appellant’s answers in the record of interview were given through an interpreter. The appellant’s account of bracing his hand on the complainant’s neck and of his having “his hand around the neck the whole time” was given by the appellant spontaneously in answer to the open question “tell us about yesterday.”
The WeChat messages, whilst more detailed than the evidence that was before the Magistrates Court, are consistent with the complainant’s evidence. The messages illustrate the undisputed sequence of events, namely, that:
(i) The appellant went to the complainant’s room on the first occasion to break up with her;
(ii) After the complainant left, the complainant was extremely distressed by the appellant’s decision to stay with Ms Yang rather than herself;
(iii) The complainant, as an act of “revenge”, told Ms Yang about her own relationship with the appellant; and
(iv) After finding out that the complainant had contacted Ms Yang, the appellant returned to the complainant’s room, at which time the offences are alleged to have occurred.
This sequence supports the prosecution case that the appellant was furious that the complainant had jeopardised his relationship with Ms Yang, and that the offences were committed whilst the appellant was in this emotional state. The evidence does not give rise to a reasonable doubt as to the appellant’s guilt.
Accordingly, I dismiss the appellant’s application to rely on additional evidence in his appeal.
The appeal
Introduction
As outlined above, the appellant relies on four grounds of appeal:
(i) The findings and orders of the learned Magistrate were unsafe and unsatisfactory;
(ii) Against the evidence and/or the weight of the evidence;
(iii) The Magistrate took into account irrelevant considerations; and
(iv) The Magistrate failed to take into account relevant matters.
Nature of the appeal
It is well established that an appeal under s 214 of the Magistrates Court Act is an appeal by way of rehearing, which requires an appellant to show legal, factual or discretionary error on the part of the Magistrate: McFarlane v Van Eyle [2022] ACTCA 68 at [20], citing Lukatela v Birch [2008] ACTSC 99; 223 FLR 1 at [18].
In her submissions, counsel for the prosecutor noted that, in line with those principles, the practice of this Court has been to determine grounds of appeal that allege that a finding of guilt is “unreasonable” or “unsafe and unsatisfactory” in accordance with the principles of established in M v The Queen [1994] HCA 63; 181 CLR 487: see, for example, Lancaster v Hyde [2016] ACTSC 50 at [34] – [135] (Refshauge J) and NS v Hotchkis [2019] ACTSC 309; 14 ACTLR 251 at [9] (Burns J).
However, counsel for the prosecutor observed that, more recently, in McFarlane v Van Eyle [2022] ACTCA 68 at [2] – [3], McCallum CJ expressed doubt as to whether an allegation that a Magistrate’s decision is “unreasonable” is a proper of ground in an appeal under s 214 of the Magistrates Court Act. In particular, McCallum CJ noted that, unlike appeals on indictment, an appeal under s 214 is by way of rehearing, so that authorities concerned with the common form appeal provisions (s 37O of the Supreme Court Act1933 (ACT) and s 6 of the Criminal Appeal Act 1914 (NSW)) may not apply.
Her Honour found it unnecessary to determine the question, as the issue was not argued and there was otherwise a “logical difficulty” with the factual analysis of the appeal judge which required the appeal to be allowed (at [3] - [4]). Justice Mossop also allowed the appeal, by applying the principles set out in M v The Queen in accordance with the parties’ contentions and previous authority of this Court: McFarlane at [21] and [90].
In his concurring judgment, Kennett J held that unreasonableness of the verdict is a “species of error” that justifies setting a verdict aside in an appeal governed by s 214: McFarlane at [97]. However, his Honour added (at [98]) that, whilst unreasonableness is a ground for setting aside a verdict, an appellant does “not need to make out a ground pitched at that level” in order to succeed. Rather, it was sufficient for the appellant to establish “some material legal, factual or discretionary error on the part of the Magistrate.” As a result, his Honour concluded that:
… to the extent that the appeal judge had formed and acted on her own conclusion that there was a reasonable doubt as to the respondent’s guilt rather than engaging in the further reasoning required by M, that was not in itself inconsistent with the function of the Supreme Court under s 214.
In her written submissions on the appeal, counsel for the prosecutor noted that the decisions of this Court in Upton v Cowling [2001] ACTSC 116 and Sikorski v Gritsch [2002] ACTSC 55 also suggested that allegation that a Magistrate’s decision is “unreasonable” may not be a proper ground in an appeal under s 214. In this respect, counsel for the prosecutor emphasised the need to take account of the different statutory regimes that apply under the Supreme Court Act and the Magistrates Court Act.
However, counsel for the prosecutor ultimately submitted that:
… noting the issue has not been determined by the Court of Appeal and numerous decisions of both this Court and the Court of Appeal have acted upon [the basis that a ground of unreasonableness is available], it would be, respectfully, appropriate for the Court to proceed on the same basis.
It is clear that an appellant may succeed in an appeal under s 214 by demonstrating that a Magistrate’s verdict of guilt is unreasonable by application of the principles in M v The Queen. As the prosecutor submitted, a finding of guilt that is unsupported by the evidence or which is otherwise unreasonable “would clearly give rise to error such as to trigger this Court’s intervention”.
I do not understand the Chief Justice’s decision in McFarlane to suggest otherwise. In McFarlane, McCallum CJ doubted whether a contention that a Magistrate’s verdict is “unreasonable or could not be supported having regard to the evidence… is an appropriate formulation of a ground of appeal from a conviction for a summary offence entered by a Magistrate” (at [2], emphasis added).
Rather, I understand McCallum CJ’s “doubt” in McFarlane to relate to the issue that is discussed in Kennett J’s concurring decision. That is, the question is not whether an appeal under s 214 can succeed by establishing that the verdict is ‘unreasonable’ (clearly it can), but whether an appellant can also succeed by “satisfying the [appellate] judge that the magistrate should not have been satisfied beyond reasonable doubt as to the appellant’s guilt”: McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298; 106 NSWLR 430 at [91] (Basten JA and McCallum JA, as her Honour then was).
In most cases, there may be little difference in practical outcomes between the two formulations (at least where the appeal does not concern review of a jury verdict). At the risk of oversimplification, both formulations require the Court to undertake an “independent” or “real review” of the evidence in the trial: Dansie v The Queen [2022] HCA 25; 96 ALJR 728 at [9]; Fox v Percy [2003] HCA 22; 214 CLR 118 at [23] and [25] and Warren v Coombes[1979] HCA 9; 142 CLR 531 at 551. Both formulations also recognise that, in conducting a ‘rehearing’, the appellate court is not in the same position as the judge at first instance and “must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record”: Fox v Percy at [23]. These limitations will include:
… the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share (Fox at [23]).
See similarly Dansie at [9].
In other words, whether applying the test in M v The Queen or applying “rehearing” principles in the court’s determination of whether factual error is established, the Court will be required to perform its own assessment of the evidence, but in doing so, the Court must also take into account any advantage that the tribunal of fact had in the proceedings below.
The significance of this advantage should not be understated. As McCallum CJ observed in Garay v The Queen(No 3) [2023] ACTCA 2 at [31]:
The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness.
In the present case, it is not necessary for me to resolve whether the principles to be applied in the determination of an appeal under s 214 are those stated in M v The Queen, or those set out in Fox v Percy and Warren v Coombes, or whether there is any practical difference between the two. For the reasons outlined below, taking into account the advantage that the Magistrate had in assessing the complainant’s credibility, I am of the view that there is no error in the Magistrate’s decision, and that the Magistrate correctly concluded that both offences were proved beyond reasonable doubt. It follows that the appeal must be dismissed.
The first and second grounds of appeal: reasonableness of the Magistrate’s finding
The appellant made the following submissions in support of his contention that the Magistrate’s decision was unreasonable or unsupported by the evidence:
(a)In view of inconsistencies in the complainant’s version of events, the Magistrate should not have found the complainant to be a credible or reliable witness;
(b)The Magistrate erred in finding that the injury to the complainant’s neck was caused by the appellant;
(c)The Magistrate should not have convicted the appellant without corroboration of the complainant’s evidence; and
(d)The Magistrate erred in rejecting the appellant’s version of events.
Each of these complaints are addressed below.
Alleged inconsistencies in the complainant’s account
Mr Chin submitted that the Magistrate should not have accepted the complainant as a reliable or credible witness because of a number of inconsistencies in the complainant’s evidence. Mr Chin particularised some, but not all, of the inconsistencies in his written submissions. I granted Mr Chin leave to provide a schedule of each of the inconsistencies that he relied on. Mr Chin filed a nine page schedule of transcript references of alleged inconsistencies in the complainant’s evidence.
In summary, the inconsistencies can be grouped into the following topics:
(i) The complainant gave evidence that she had only recently found out that the complainant had another girlfriend. In fact, the complainant always knew about the appellant’s relationship with Ms Yang;
(ii) The complainant’s evidence that the appellant attempted to touch her breasts on the first occasion that he visited her room was “inherently implausible”, because the appellant was intending to break up with the complainant (as the complainant acknowledged);
(iii) The complainant’s evidence that she wanted to marry the appellant was inconsistent with the complainant’s assertion to the ANU counsellor that the appellant had come that morning “to bother her”;
(iv) The complainant gave contradictory evidence in respect of the incident with the knife on 8 October 2019; and relatedly, an alleged sexual assault;
(v) The complainant gave contradictory evidence as to the circumstances in which the appellant choked her, in particular as to whether she could breathe and what the appellant was doing at the time that he attempted to choke her; and
(vi) The complainant was evasive when asked questions about her relationship with the appellant, whether she knew about Ms Yang, and whether she harmed herself before the appellant arrived.
In my view, none of the above matters undermine the complainant’s credibility, whether considered individually or cumulatively.
As to (i), in cross-examination, the complainant gave evidence that she only learnt about Ms Yang one or two weeks after she first met the appellant. There was no evidence contradicting this account in the proceedings before the Magistrate.
As to (ii), I do not consider the complainant’s evidence that the appellant attempted to touch her on the breasts while he was breaking up with her to be implausible. Any relationship breakup can be the subject of mixed emotions. It would not be implausible for the appellant to initiate physical intimacy with the complainant even at a time that he was attempting to end the relationship. Further, given the complex history of the appellant’s relationship with the complainant, it is not implausible that the appellant might wish to “test” whether he could still have a physical relationship with the complainant whilst making it clear that the complainant could have no expectation of a long-term commitment from him.
As to (iii), the ANU counsellor did not give evidence that the complainant had told her that the appellant came to “bother her”. In her email to the ANU counsellor the complainant disclosed the appellant had “hurt” her. As outlined at [206] below, when read in context, it is apparent that the complainant was telling the counsellor about the emotional harm that the appellant had caused the complainant. There is no inconsistency between this message and the complainant’s earlier indication that she hoped to marry the appellant.
As to (iv), the complainant was asked in cross-examination whether she had attempted to harm herself before. She said that she remembered an occasion where she was having an emotional breakdown, and took a knife to try to cut herself. She agreed that the appellant was scared when she did this. She maintained that she never threatened the appellant with the knife. She could not remember if the appellant took the knife away from her, but agreed that she did calm down.
Later in her cross-examination, the complainant said that she did remember that the appellant “took the knife away gently.” The complainant was also asked questions about reporting this matter to police on or about 21 October 2019. The complainant agreed that, on that occasion, she told police that after the appellant sexually assaulted after he took the knife away. She explained that she did not mention the sexual assault to police earlier because “I didn’t want to bring this matter to court. Because [police] asked me whether we need a further investigation about it and I said ‘no’.”
In short, there were two ‘inconsistencies’ in the complainant’s evidence concerning the incident with the knife on 8 October. The first alleged inconsistency was that, initially, the complainant could not recall the appellant taking the knife from her, whereas on further cross-examination, the complainant recalled that the appellant had “gently” taken the knife from her. This ‘inconsistency’ does not demonstrate that the complainant was not a credible witness. Rather, as the Magistrate found, the preparedness of the complainant to carefully consider her evidence and to make concessions in favour of the appellant was a mark of her truthfulness.
The second alleged ‘inconsistency’ was the complainant’s initial failure to mention the allegation of sexual assault. The complainant’s explanation for not mentioning the allegation earlier accorded with the evidence of Constable Stone, who said that the complainant told police that she did not want to pursue the matter because it was “too traumatic”. The Magistrate accepted this explanation, finding that the complainant “was being truthful and honest for her reasons about not wanting to put those allegations before the court.”
As to (v), Mr Chin submitted that the complainant’s statement in her interview with police that she was asking the appellant to give back her phone, and that she “tried to push him away when he was grabbing my arm and my neck” was inconsistent with the complainant’s evidence that, whilst she was being choked, she “could not breathe” and “felt close to death”.
However, in her evidence, the complainant explained that the appellant grabbed her neck for about two minutes, and that whilst his grip during the first minute was “not very tight”, during the second minute he “tightened his hand…I feel that I couldn’t breathe” and that she felt “close to death”. There is no inconsistency in the complainant’s evidence on this topic. Nor was the complainant’s evidence implausible. The fact that the appellant was holding her phone in his other hand heightened the need for the appellant to apply force with the hand that was holding the complainant’s neck.
As to (vi), whether the complainant was evasive in her evidence cannot be properly determined without having the benefit of seeing and hearing the complainant give evidence. The Magistrate did not find that the complainant was evasive. Rather, his Honour found that the complainant was an “impressive witness” who was “trying to tell the truth and trying to be as reliable as she could be.”
Nor were there any other inconsistencies in the complainant’s evidence that undermined her credibility or reliability. As counsel for the prosecutor submitted on the appeal:
That there are inconsistencies in a witness’ evidence is not uncommon. Inconsistencies, in and of themselves are, do not require wholesale rejection of a witness’ evidence.
There is nothing in the transcript of the complainant’s evidence that indicates that the Magistrate’s findings in relation to the complainant’s credibility were in error. Taking into account the Magistrate’s advantage in having seen and heard from the complainant, I am also satisfied of the complainant’s credibility beyond reasonable doubt.
The injury to the complainant’s neck
The Magistrate found that, together with the evidence of the complainant, the injuries to the complainant’s neck was “the most compelling evidence”. Whilst emphasising that the “defendant does not have to explain anything”, his Honour noted that those injuries were not explained on the defence case.
Mr Chin made three complaints about this finding:
First, Mr Chin submitted that it had not been established beyond reasonable doubt that the redness to the complainant’s neck depicted in the photographs was not a skin irritation. Mr Chin submitted that neither Dr Thomas’ expert report, nor the photographs taken by the ANU counsellor, established that the redness depicted in the photograph was an injury that the appellant had caused.
Second, Mr Chin submitted that the Magistrate failed to consider whether the marks on the complainant’s neck were caused by self-harm, or whether the complainant’s medication rendered her skin more susceptible to redness.
Third, Mr Chin submitted that the Magistrate had reversed the onus of proof and had expected the defence to provide an explanation for any injury to the complainant’s neck.
The photographs taken by the ANU counsellor are not clear. The colours in the printed photos are saturated to a degree which renders it difficult to discern whether injuries are depicted on the complainant’s neck or arms. The original digital photographs were not tendered. I note that there was no objection to the admission of the printed copies of the photographs.
Dr Thomas did not observe any bruising to the complainant’s neck when he examined the complainant the following day. However, he explained that “this time frame allows for healing of injuries” and that it was possible that the redness of the complainant’s neck “had resolved at the time of forensic medical examination”. Dr Thomas also cautioned that the “interpretation of injuries from images can be difficult and should be treated with caution”.
However, the evidence given by the ANU counsellor and the second residential manager was unequivocal. Both were independent witnesses who saw the complainant in the period immediately after the alleged assault. I agree with the Magistrate that their evidence should be accepted. The ANU counsellor said that the “first thing” that she noticed was the complainant’s “incredibly pale face”. She said that she had “never seen anyone with such white skin”. It was then that she noticed the “red marks around [the complainant’s] neck”. The second residential manager gave evidence that he observed “pink marks on her neck that look as if a hand had been pressed there… and on her arm”. He gave evidence that those marks were “the width of a finger”. The evidence of these witnesses establishes beyond reasonable doubt that the injuries to the complainant’s neck was not the result of a skin irritation.
The complainant accepted that she had cut her arm in desperation after the appellant left her room the first time. She said that the cuts were not deep. She indicated three lines on the photos which were attributable to self-harm. That evidence did not shed any doubt on the significance of the injuries to the complainant’s neck. The appellant’s counsel did not suggest to the complainant in cross-examination that she had self-inflicted finger marks on her own neck prior to the appellant’s arrival at her room the second time. There is no basis to infer that the fingerprints observed on the complainant’s neck were also self-inflicted.
Nor is there any basis for the appellant’s contention that the Magistrate failed to consider whether the complainant’s medication (Lithium) rendered her skin more susceptible to redness. No submission to this effect was made on behalf of the appellant in the proceedings before the Magistrate, nor was there any evidence before the Magistrate that was addressed to this issue.
In these circumstances, the Magistrate observed that there was:
… no explanation on the defence case [of] how those injuries got there and there was certainly no allegation of her self-harming on her neck in between what had occurred between the complainant and the defendant and by the time ANU staff had arrived.
An observation that objective evidence is not explained on the defence case does not reverse the onus of proof. The Magistrate was entitled to assess the credibility of the accounts of both the complainant and the appellant against the objective evidence of the injuries observed. In making the observation, the Magistrate reiterated that the defence “does not have to explain anything”. The Magistrate did not reverse the onus of proof.
The lack of corroboration
The appellant’s submissions in respect of this ground concerned an alleged lack of corroboration of the complainant’s account. For example, the appellant submitted that the Magistrate’s finding was unreasonable because there were “no eyewitnesses”.
There is no legal requirement for there to be eyewitness evidence of an assault. Adopting the words of McCallum CJ in Garay at [40]: “There was an eyewitness who gave an account of the appellant’s alleged participation in the offences: the complainant.” There is no legal requirement for corroboration of a complainant’s evidence. As the respondent aptly submitted, in matters of this nature, “it is not unusual for there to be only two accounts of what occurred” and it is “unlikely there would be an eyewitness account”. In any event, there was corroboration of the complainant’s account in the present case, namely the injuries observed by the ANU counsellor and the residential manager.
The rejection of the appellant’s account
The appellant submits that it was unreasonable for the Magistrate to reject the appellant’s claim of self-defence in circumstances where, prior to the alleged offences, the complainant had drawn a knife on the appellant and threatened to kill him or self-harm, and in view of the appellant’s fear of knives from a previous attack on him which occurred when he was younger. In this respect, the appellant referred to “the complainant [having] admitted that she told police that during the [appellant’s] visit she sat on her bed and had a knife on the bed during the first visit.”
The Magistrate carefully considered the appellant’s record of interview. His Honour rejected the appellant’s account for the reasons outlined at paragraph [69] above.
As the Magistrate found, the appellant’s account that he “pushed” the complainant by her neck, and that he held her on the bed, but did not squeeze her neck, was not credible. Nor was the appellant’s explanation that he “chose” to push the complainant by the neck because of a concern to avoid touching the complainant’s stomach or breasts plausible.
Like the Magistrate, I also do not consider the appellant’s justification of the reason that he engaged in such conduct to be credible. I do not accept that the appellant would have made the appellant so fearful that he felt the need to grab the complainant by the neck simply because she had looked at a drawer in the kitchen. Rather, I find that the appellant acted as he did because he was angry with the complainant for telling Ms Yang about his affair with the complainant.
Having rejected the appellant’s account, and having accepted the complainant’s account beyond reasonable doubt, the issue of self-defence does not otherwise arise.
The third ground of appeal: Irrelevant considerations (apprehended bias)
In support of this ground of appeal, the appellant submitted that Magistrate displayed actual or apprehended bias against the appellant in outward conduct demonstrating disdain for him: Gindy v Capital Lawyers Pty Ltd [2022] ACTCA 66.
The particulars of this allegation arise out of two comments made by the Magistrate. The first comment was made during the prosecutor’s closing submissions:
PROSECUTOR: Your Honour, the defendant loved his girlfriend, Ms Fan –
HIS HONOUR: Which one?
PROSECUTOR: [Ms Yang] from China and not the complainant…
The second comment was made in relation to the appellant’s recorded interview with police:
I thought that his interview was self-serving and that there was gaslighting and it was repetitive gaslighting and by gaslighting I mean attempting to use the complainant’s illness against her.
In his oral submissions, Mr Chin submitted that in relation to the ‘girlfriend’ comment, the transcript did not convey “the sarcasm with which that was said” and demonstrated that the Magistrate felt “sympathy” for the complainant and “antipathy” toward the appellant. In relation to the “gaslighting” comment, Mr Chin submitted the comment was “extraordinary and shocking…[and] gratuitous”.
It is not possible to ascertain from the transcript whether the Magistrate asked the question relating to the appellant’s girlfriend in a sarcastic manner. I note that no objection was made by counsel appearing for the appellant at the time. The appellant had been in two relationships during the weeks leading up to the alleged offences, and so the Magistrate may have wished to clarify whether the prosecutor was referring to the complainant or to Ms Yang. No bias, whether actual or apprehended, could arise from such an inquiry.
It would be extremely regrettable if the Magistrate’s comment was made sarcastically. As McCallum CJ observed in Gindy at [10], “sarcasm is corrosive of the appearance of impartiality.” The making of a sarcastic remark at the expense of an accused during the opening lines of a prosecutor’s closing submission has the potential to undermine the appearance of impartiality in proceedings in which, by reason of the gravity of their potential consequences, the need for confidence in the impartiality of the decision maker is particularly heightened.
Despite this, I consider that the question would not give rise to actual or apprehended bias on the part of the Magistrate even if the question had been asked in a sarcastic manner. Whether a decision maker has displayed actual or apprehended bias requires consideration of the whole of the proceedings. It is “not enough that the decision maker displayed irritation or impatience or even used sarcasm”: Sun v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; 81 FCR 71 at 123 (Wilcox J); see also Galea v Galea (1990) 19 NSWLR 263 at 283B.
If there was sarcasm on the part of the Magistrate, it was isolated, and related to evidence that was not in dispute, namely that the appellant had been romantically involved with two women at the time of the alleged offence. No other aspect of the proceedings suggested that the Magistrate had approached the hearing with anything other than an open mind. A fair-minded observer would not reasonably apprehend, on the basis of the Magistrate’s query, that the Magistrate might not bring an impartial mind to the resolution of the entirely separate question of whether the prosecution had proved the appellant’s guilt beyond reasonable doubt.
Nor does the Magistrate’s finding that there was “gaslighting” in the appellant’s record of interview give rise to an apprehension of bias.
In his reasons, the Magistrate explained that, in using the term “gaslighting”, he meant that the appellant attempted to use the complainant’s mental illness against her. The appellant made repeated reference to the complainant’s “mental disease” in his record of interview. He told police that the complainant suffered from bipolar disorder, and said that this illness gives the patient “multiple personalities.” He asserted that he had needed to “push” the complainant out of the kitchen with his hand bracing her neck because the complainant had “looked at” a kitchen drawer, and he feared that the complainant would “do something stupid” with a knife. He said that the complainant “suddenly” started crying when the ANU counsellor arrived.
As outlined above, in my view, the appellant’s evidence concerning the circumstances and manner in which he pushed the complainant by the neck is not credible. Nor is the appellant’s evidence that the complainant only become distressed on the arrival of the ANU counsellor credible in circumstances where the appellant had grabbed the complainant’s phone on his arrival and was deleting messages on it.
In view of the appellant’s answers in his record of interview, it was open to the Magistrate to conclude that the appellant had attempted to use the complainant’s mental illness against her. No bias, whether actual or apprehended, is conveyed by the Magistrate’s remark.
The fourth ground of appeal: Failure to consider relevant matters
There is considerable repetition between the particulars relied on in support of this ground of appeal, and the particulars of the unreasonable verdict ground of appeal. In particular, the appellant again submits that the Magistrate failed to consider whether there were reasonable doubts as to whether the redness on the complainant’s neck may have been caused by self-harm. I do not accept this submission for the reasons outlined above.
In addition to those matters, the appellant submits that the Magistrate failed to take into account:
(i) The complainant’s mental health issues (bipolar disorder) and the medication with which she was treated (Lithium);
(ii) The complainant’s state of mind as a result of her “previous failed relationships” and problems she had with her father; and
(iii) Evidence that the complaint was motivated by malice and that she may have “set up” the appellant.
There is no substance in the first two complaints. There is no evidence that suggests that the complainant’s mental health or her medication affected her ability to recall or perceive events or that either rendered her more likely to give false evidence. As counsel for the prosecutor submitted, “a person with mental health issues is not, for that reason alone, a person who ought to be considered less reliable”. Nor is there any basis for the submission that the complainant’s previous relationships or her relationship with her father was relevant to the assessment of the complainant’s credibility or reliability.
The Magistrate rejected the appellant’s submission that the complainant lied in her evidence to the Court because she was motivated by malice. There was no error in so finding.
The complainant sent an email to the ANU counsellor in which she described herself as being “hurt again” by the appellant prior to the alleged offences. As counsel for the prosecutor submitted on the appeal, it may be accepted that, on the complainant’s account, she was not physically “hurt” by the appellant until the second time that the appellant came to her room. The complainant sent the email after the appellant had left the complainant’s room the first time, and before he had entered the room the second time. However, after referring to the appellant having “hurt” her in the email, the complainant immediately her depression and her wish to self-harm. In context, the reference to “hurt” in the email should be read as the complainant describing the emotional harm that the appellant had caused her.
Nor does the complainant’s email “I did not want to revenge on you. You force me to do it” provide support for the appellant’s contention that the complainant ‘set up’ the allegations against the appellant. As the appellant explained in his record of interview, the complainant sent this message immediately after she had told Ms Yang about her relationship with the appellant, and before the appellant went to the complainant’s room a second time, when (even on the appellant’s account), he placed his hand around the complainant’s neck. Viewed in this context, it is clear that the “revenge” spoken of in the text message was the complainant’s decision to disclose her affair with the appellant to Ms Yang.
Conclusion
For the reasons outlined above, none of the matters raised by the appellant cast doubt on the correctness of the Magistrate’s finding.
The Magistrate had the benefit of seeing and hearing the complainant give evidence. His Honour found the complainant to be a truthful and reliable witness. As the Magistrate found, the complainant’s evidence was supported by the evidence of the ANU counsellor and the second residential manager. I agree with the Magistrate that the appellant’s account should be rejected. For the reasons outlined above, the appellant’s account was not credible. Having regard to the Magistrate’s advantage in seeing and hearing the complainant give evidence, I am of the view that the Magistrate correctly accepted the complainant’s evidence beyond reasonable doubt.
The complainant’s evidence satisfies the elements of both offences. Accordingly, I am satisfied beyond reasonable doubt that the appellant is guilty of both offences. It follows that the appeal must be dismissed.
Orders
The orders of the Court are as follows:
1. The application to adduce further evidence is dismissed.
2. The appeal is dismissed.
The matter should now be relisted before the Magistrate for the appellant to be sentenced.
It is not clear on the material before me why the sentencing proceedings were adjourned until after the completion of this appeal. Whilst a Magistrate has a discretion to adjourn proceedings on sentence until after an appeal against a finding of guilt is concluded, in my view, such a course is not required under the Magistrates Court Act. Section 216(1)(a) of the Magistrates Court Act provides that:
the enforcement or execution of the decision, conviction, order, sentence or penalty that is the subject of the appeal is stayed until the appeal is decided or is abandoned or discontinued;
Section 216 stays the “enforcement” or “execution” of the decision the subject of the appeal. In my view, s 216 does not preclude a Magistrate from proceeding to hear sentence proceedings, or to determine the appropriate sentence to be served while an appeal is pending (with the execution of that sentence then being immediately stayed until resolution of the appeal). It may be more expeditious, particularly in a matter such as the present which has had a lengthy procedural history, for proceedings on sentence not to await the conclusion of an appeal to this Court.
| I certify that the preceding two hundred and fourteen [214] paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 23 March 2023 |
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