John Lincoln v Lennard Bailey
[2013] ACTSC 257
•16 December 2013
JOHN LINCOLN v LENNARD BAILEY
[2013] ACTSC 257 (16 December 2013)
CRIMINAL LAW – EVIDENCE – appeal from Magistrates Court – whether Magistrate reversed onus of proof in relation to cause of injuries – where Magistrate said appellant’s evidence could not explain injuries to complainant – where Magistrate made clear no onus on the appellant – Magistrate entitled to take into account probability on evidence that injuries were inflicted by appellant in determining whether charge proved beyond reasonable doubt
CRIMINAL LAW – appeal from Magistrates Court – whether verdict unsafe and unsatisfactory – whether evidence of complainant inconsistent – where inconsistent evidence of complainant does not affect her credibility – where evidence of appellant inconsistent with other evidence
Crimes Act1900 (ACT), s 26
BCM v The Queen [2013] HCA 48
M v The Queen (1994) 181 CLR 487
SKA v The Queen (2011) 243 CLR 400
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 62 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 16 December 2013
IN THE SUPREME COURT OF THE )
) No. SCA 62 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: JOHN LINCOLN
Appellant
AND: LENNARD BAILEY
Respondent
ORDER
Judge: Burns J
Date: 16 December 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
The appellant was convicted on 22 July 2013 after a contested hearing in the Magistrates Court, of one offence of assault contrary to s 26 of the Crimes Act1900 (ACT). The complainant was Kelly Huimin Cao, the wife of the appellant. The Magistrate imposed a good behaviour order of 18 months duration.
The appellant has appealed from his conviction on the following grounds:
a)the decision was unsafe and unsatisfactory; and
b)the Magistrate erred in reversing the onus of proof in relation to the cause of injuries observed on the complainant’s body.
It is convenient to begin with the second ground, as it alleges a specific error.
As the charge against the appellant was one of common assault, there was no requirement that the prosecution prove that the complainant sustained any injury in the course of the alleged offence. The hearing in the Magistrates Court was conducted on the basis that the prosecution would lead evidence of injury to support its case that an assault had occurred, but that the fact the complainant was injured (if the Magistrate was satisfied that was the case) would not be considered in sentencing the appellant if he were to be convicted. I make no comment upon the procedure.
The prosecution case was that at about 10:30 pm on 10 November 2012 the appellant and the complainant were arguing at their then matrimonial home. The complainant alleged the appellant used “bad words” to her, said he would deport her, and told her “Go back to your (sic) China, go back to your village”. She responded “Then you go back to Libya”. The appellant then stood up and pushed the complainant off the chair on which she was seated, although she did not fall to the floor. This caused her to drop a computer which she had been using. The complainant then walked over to the appellant and pushed the computer he was using. She alleged that the appellant then slapped her to the right side of her jaw, causing everything to go black for a moment, and requiring her to take hold of a chair for support. The complainant sat on the chair until she “calmed down”, and then went to the living room “and slept on the couch and waited there”. She said the appellant followed her and shouted at her as she tried to find her phone to call a friend or police. When she found her phone, she put it in her pocket and left the house. She initially called a friend, Jiang Min, known as Jenny. She told Jenny that her husband had attacked her. She then telephoned the police, making the call at about 11:00 pm. The police arrived about 5 minutes later. The complainant was waiting outside, and told police her husband had hit her and she had a sore jaw.
Evidence was given by police who attended the scene that on arrival they met the complainant dressed in pyjamas outside the residence. She was “cowering” under a tree, was shaking, appeared red around the face with swelling under her eyes, and was observed to be crying. The complainant told police her husband had struck her in the face inside the apartment, and showed police a number of injuries, most notably around the clavicle area, but also to her face. Police testified that the complainant said that during the altercation the appellant grabbed her around her neck and shook her, and that the appellant struck her once to the face. The complainant told police that she was very scared, and shaken by the incident. She said that the appellant had been drinking and that he becomes quite verbally aggressive when he has been drinking. Police said the complainant told them she had been thrown against a wall, and held by the throat. Police entered the residence and arrested the appellant. The complainant declined to go to the hospital that evening, preferring to remain at home with her children. Once the appellant was removed from the premises, the complainant’s demeanour changed rapidly and she became a lot more calm.
The appellant’s case was that he and the complainant consumed some wine with their dinner on 10 November 2012, in total about one half to two thirds of a bottle. After dinner the complainant started arguing with him. She was shouting and yelling at him. He said to her “this marriage is not going to continue like this”. He denied becoming angry during this argument. He was completing assignments on one table in a room in the house set up as an office. The complainant sat at another table in the same room. Each was using a computer. He denied pushing the complainant’s computer. He said that during the argument he told the complainant he would be taking “this to court” and would “finish these matters”. He said that about 5 minutes later he noticed the complainant had left the room and looked for her around the house. He said that when he could not locate her he rang ‘000’ and gave his name and address. As he was on the phone police arrived and arrested him. The appellant denied pushing or punching or striking the complainant in any way.
It was conceded by counsel then appearing for the appellant before the Magistrate that a search of ‘000’ call records had not been able to identify any record of a call to that number by the appellant on the evening of 10 November 2012.
ALLEGED REVERSAL OF ONUS OF PROOF
In cross-examination the appellant conceded that he could provide no explanation for the existence of visible injuries on the complainant. In her reasons for finding the offence proved, the Magistrate said (at T 89):
There is simply no explanation, on [the appellant’s] version of events, for how she could have been injured or why she was in a distressed state.
The appellant complains that the Magistrate, in effect, reversed the onus of proof on this issue.
It is important to look at this statement in the context of her Honour’s reasons in full. In the course of her reasons her Honour said:
a) that the appellant bore no onus whatsoever in the proceedings; and
b) that the onus was on the prosecution to prove its case beyond reasonable doubt.
Before her Honour made the statement set out at [7] above, she said:
More importantly, however, on the defendant’s version of events – and I have to be careful, because Mr Edmonds is right, it is not for the defendant to come up with an explanation or to fill in gaps in the prosecution’s case, but there is no explanation whatsoever on his version of events for the injuries his wife clearly sustained that evening. I reject any suggestion – and there have only been some in passing – that they may have been self inflicted. A scratch possibly, if somebody was malicious and wanted to point the finger at somebody else, look, they assaulted me, but if the scratches were self inflicted and then forgetting about them afterward or not making a big fuss about them and explaining them in court, really it makes that suggestion a nonsense. The only reason for inflicting the scratches would be to implicate the defendant in a significant assault and then to have no memory of that’s the reason why you did them or to make a great fuss about it in front of the police officers and the others, just makes that a nonsense in my view.
The injury to her jaw on all accounts from those who observed her – and I have no reason to doubt their evidence of their observations – various officers refer to her having a tea towel with some ice inside it or an icepack or whatever else, but to suggest that somehow she would have done something to her jaw to cause that discomfort or indeed to simply maintain the fiction that her jaw was uncomfortable enough that she couldn’t remember which side she was hit on, she could not even tell a consistent story to her treating medical practitioner, again in my view is a nonsense. Is there any other possible explanation? She and her husband had a disagreement, she went outside and some stranger assaulted her. It would be very odd in those circumstances, (a) that I guess she’d gone outside in her pyjamas, but even more so, that a stranger comes along, assaults her and that she suddenly determines that instead of having the stranger brought to justice, she would implicate her husband by claiming that he’d assaulted her.
In this extract the Magistrate demonstrates that she is aware that there is no onus on the appellant to provide an explanation for the injuries observed on the complainant, or to “fill gaps in the prosecution’s case”. When read as a whole, her reasons amply demonstrate that, in the extract at [7] above, she was not suggesting that the appellant had any onus or obligation to explain the complainant’s injuries.
It is commonsense that when a tribunal of fact is confronted with two versions of the same event, neither of which is inherently improbable, it will look to see if either version is consistent with, or inconsistent with, established facts. A finding that a version is inconsistent with established facts is a matter which the tribunal of fact is entitled to take into account in deciding whether it can be satisfied to the requisite standard that events occurred in a particular way. In this case there was no suggestion that the vast majority of the injuries to the complainant observed by police on the night of 10 November 2012 were in existence prior to the argument between the appellant and the complainant. The complainant did have one old scar to her face which she identified during her evidence in the photographs taken of her after the police arrived. The Magistrate correctly identified three possible mechanisms by which these injuries were inflicted: the appellant inflicted them as asserted by the complainant, the complainant herself inflicted them, or a third party inflicted them but the complainant is now blaming the appellant. The third option, bearing in mind the limited time between the appellant noticing the absence of the complainant and the arrival of police, was so unlikely that it could be dismissed out of hand. The Magistrate was entitled to consider, as I do, that of the remaining 2 options the infliction of the injuries by the appellant was the most likely. In turn, she was entitled to find it most unlikely that the complainant would have self-inflicted them. That left the complainant’s version that they were inflicted by the appellant, as opposed to the appellant’s version of events which could not account for the injuries.
The Magistrate was entitled to take into account the probability on the evidence that the injuries were inflicted by the appellant in determining whether she was satisfied beyond reasonable doubt that the appellant had committed the offence with which he was charged. In doing so, she placed no onus on the appellant. This ground of appeal must fail.
UNSAFE AND UNSATISFACTORY
The principles concerning an appeal on the grounds that a verdict is unsafe or unsatisfactory are well settled. In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said (at 494-5):
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence. In doing so, the court is not substituting a trial by court of appeal for trial by jury, for the ultimate question must always be whether the Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. (footnotes omitted)
Recently, in BCM v The Queen [2013] HCA 48, the High Court (at [31]) reaffirmed the requirement, referred to in SKA v The Queen (2011) 243 CLR 400 (at [22]–[24]), on the part of appeal courts to disclose in their reasons its assessment of the capacity of the evidence to support the verdict.
The appellants submissions
The appellant submitted that the evidence led by the prosecution on the hearing before the Magistrate consisted of:
i.The complainant’s testimony that she had been ‘slapped’ or ‘hit’ on her jaw in the course of an argument.
ii.A neighbour’s evidence that she could hear a woman screaming and a male voice yelling. There was no evidence of the location of the scream or its nature.
iii.A call made to police in which the complainant reported being ‘hit’ or ‘punched’ by the appellant and also that the appellant ‘drinks but not tonight’.
iv.A call made by the complainant to a friend in which she said she had been hit in the face by her husband during the course of an argument.
v.Reports made to police who attended the home, together with their observations of the complainant’s distress.
vi.Photographs taken by police.
vii.Reports made to a Doctor two days later with respect to the injury and point of contact.
The appellant submitted, quite correctly, that the complainant was an important witness for the prosecution. The appellant submitted that there were inconsistencies in the complainant’s evidence such that the Magistrate should have entertained a reasonable doubt as to the guilt of the appellant. The first, and “most glaring” inconsistency referred to by the appellant was with respect to the complainant’s reports of the part of her body hit by the appellant. In her evidence in chief she was adamant that she had been hit to the right side of her face. This was inconsistent with what she told police at the scene, where she said she was hit on the left side of her face. Two days after the incident she also told a doctor that she had been hit on the left side of her face. When confronted in cross-examination with what she had told the doctor, the complainant asked for time to think, and then changed her evidence and accepted that she had been hit on the left side of her face.
The next inconsistency referred to by the appellant was that during the hearing before the Magistrate the complainant was unable to explain the injuries observed to her neck area after the events of 10 November 2012, whereas she told police on the night that the appellant had grabbed her around the neck and shaken her. The appellant submitted that it was implausible that an assault of such significance as the one she reported to police on the evening would be forgotten.
Thirdly, the appellant submitted that during the ‘000’ call the complainant had said, when asked whether the appellant had been drinking, “he drinks but not tonight”, whereas in evidence she said that the appellant had been drinking wine that evening.
Finally, the complainant gave evidence that the appellant pushed her from her chair in the house, and that her laptop fell to the ground. However, the laptop was not damaged, and one of the attending police observed nothing “remarkable or unusual” about the room in which the incident took place.
The respondents submission
The respondent submitted that the number of inconsistencies in the evidence of the complainant had been “greatly overstated”. The complainant had been consistent in asserting that the appellant struck her to the head. In the ‘000’ call she said: “He punched on my face and I can’t open my mouth properly”. She also told her friend, Min Jiang: “...he had hit her in the face. She said that her jaw felt broken and that she was bruised and sore...”. The notes of the doctor consulted by the complainant 2 days later indicate that she complained of an assault to her face and tenderness of the jaw.
The respondent also submitted that the statement “He drinks but not tonight” said to have been made by the complainant in the ‘000’ call was ambiguous, as it was an answer to a combined question “Is he intoxicated, has he been drinking?”.
Finally, the respondent submitted there was no inconsistency between the evidence given by the complainant about what happened in the house and the police evidence that the room did not appear disturbed, and evidence that the laptop used by the complainant was undamaged.
Consideration
It is not uncommon for victims of assault to forget, due to the passage of time, precisely where they were struck. In this particular case, the complainant gave an explanation for her initial confusion in her evidence. Whilst the blow was to the left side of her face, the movement of her jaw occasioned by the blow caused pain on the opposite side of her jaw. This appears to be a reasonable description of the outcome of such a blow, and a rational explanation for the confusion in the complainant’s evidence. The reality is that the complainant complained immediately after the events that she had been struck to the left side of her face, a complaint she repeated two days later to her doctor. Her initial confusion in her evidence as to which side of her face was struck is not such as to give me concern about her credibility.
It is true that when giving evidence the complainant was unable to explain the injuries observed by police to her neck, and shown in the photographs taken by police. On the evening, the complainant complained to police of actions by the appellant (grabbing her around the neck and shaking her) which would explain those injuries. As such, this is not a case of absence of complaint, or of a complaint inconsistent with the observed evidence. It appears to me that the complainant’s evidence may be explained by a simple lapse of memory. Certainly, one would expect that her memory of the details of the incident would be better at the time she spoke to police on the evening rather than when she gave evidence 8 months later.
I have taken the opportunity of listening to the recording of the ‘000’ call made by the complainant on the evening in question, and I am satisfied that the complainant did not say the phrase “He drinks but not tonight” to the ‘000’ operator. The phrase that I heard was “he drinks [sic] some wine tonight”.
Finally, there is no inconsistency between the evidence of the complainant as to what occurred in the office room and the observations of that room by police. It was not suggested by the complainant that the room had been substantially disarranged during the incident, and in any event the appellant had been alone in the house for some time before police arrived, and as such had ample opportunity to address such minor disarray as may have been caused by the incident. Similarly, there was no inconsistency between the evidence given by the appellant and the fact that the complainant’s laptop was unbroken.
The prosecution case was strong. The evidence given by the police of their observations of the complainant and her injuries on the night, and of the complaint made by the complainant, strongly supported the complainant’s evidence. The strength of the prosecution case justifies rejection of the appellant’s evidence. In addition there were unsatisfactory aspects of the appellant’s evidence, including his evidence that he himself called ‘000’ that evening. Police enquiries could find no evidence of such a telephone call. In addition, the injuries observed on the complainant on the evening are inconsistent with the appellant’s description of the interaction between himself and the complainant on the evening. The proposition that the complainant caused those injuries to herself was dismissed by the Magistrate, as I do now.
Having independently assessed the evidence I do not entertain a reasonable doubt as to the appellant’s guilt. The appeal will be dismissed.
I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 16 December 2013
Counsel for the Appellant: Mr A Hopkins
Solicitor for the Appellant: Paul Edmonds & Solicitors
Counsel for the Respondent: Mr M Thomas
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of Hearing: 4 November 2013
Date of Judgment: 16 December 2013
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