Johnson v Hansen

[2024] ACTSC 353

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Johnson v Hansen
Citation:	[2024] ACTSC 353
Hearing Dates:	15 April 2024 and 18 June 2024
Decision Date:	6 November 2024
Before:	Mossop J
Decision:	1.  Dismiss the application for leave to file an Amended Notice

of Appeal.

2.       Appeal allowed.

3.      The orders of the Magistrates Court made on

4 October 2023 are set aside.

4.       The proceedings are remitted to the Magistrates Court for

determination according to law.

Catchwords: 

APPEAL – CRIMINAL LAW – Appeal against conviction from the ACT Magistrates Court – appeal on basis that proceedings miscarried as a result of failure of the appellant’s counsel to

adduce evidence of appellant’s good character, make

submissions as to its significance and to seek that the magistrate

give himself directions relating to the appellant’s good character – good character evidence available from numerous witnesses –

bare “no convictions” character evidence adduced at trial –

significant possibility that new evidence would have affected

outcome of trial – appeal allowed on this ground

APPEAL – CRIMINAL LAW – Evidence of absence of criminal history – magistrate did not err in failing to direct himself as to the

potential use of good character evidence in circumstances where
neither party sought such a direction

APPEAL – CRIMINAL LAW – Power of the Magistrates Court to amend an information – argument by appellant that the court

lacked the power under s 28 of the Magistrates Court Act 1930 (ACT) to amend charge to refer to different subsection of s 60 of

the Crimes Act 1900 (ACT) – validity of conviction not affected by amendment to information in circumstances where “family

violence” circumstance of aggravation stated on information –

ground of appeal dismissed

Legislation Cited: 

Crimes Act 1900 (ACT), ss 28(2), 60, 72AA
Evidence Act 2011 (ACT), s 110
Listening Devices Act 1992 (ACT)
Magistrates Court Act 1930 (ACT), ss 28, 208, 214
Road Transport (Driver Licensing) Act 1999 (ACT), s 32

Cases Cited: 

AK v R [2022] NSWCCA 175; 300 A Crim R 559
Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27
Byrne v Hulbert [2009] ACTSC 124
D v R (1996) 86 A Crim R 41
De Silva v The Queen [2013] VSCA 339; 236 A Crim R 214
GZ v The Queen [2015] ACTCA 11
JV v R [2017] NSWCCA 49
Melbourne v The Queen [1999] HCA 32; 198 CLR 1
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
Parsons (a pseudonym) v The Queen [2016] VSCA 17
R v Falealili [1996] 3 NZLR 664
R v Soto-Sanchez [2002] NSWCCA 160; 129 A Crim R 279
Simic v The Queen (1980) 144 CLR 319
Slattery v R [2023] NSWCCA 117
TKWJ v The Queen [2002] HCA 46; 212 CLR 124

Wade v Evans [2003] ACTSC 85; 180 FLR 290

Parties: 

Jess Johnson (Appellant)
Chloe Hansen (Respondent)

Representation: 

Counsel

T Edwards SC (Appellant)

K McCann (Respondent)

Solicitors

Hugo Law Group (Appellant)

Director of Public Prosecutions (Respondent)

File Number: 

SCA 61 of 2023

Decision Under Appeal: 

Court/Tribunal:	ACT Magistrates Court
Before:	Special Magistrate Urbas
Date of Decision:	4 October 2023
Case Title:	Hansen v Johnson

Court File Numbers: CAN 10638/2022
CAN 10639/2022
CAN 10640/2022

MOSSOP J: 

Introduction 

1․ 

On 4 October 2023, a magistrate found Jess Johnson guilty of the following offences:

(a) two counts of an act endangering life (choke, strangle or suffocate another),

contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (CAN 10638/2022 and

CAN 10639/2022); and

(b) one count of committing an act of indecency upon another person without

consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (CAN 10640/2022).

2․	This is an appeal from the decision of the magistrate. The notice of appeal seeks that
the appeal be upheld and the matter remitted to the Magistrates Court for rehearing.
3․	An appeal from the Magistrates Court under ss 208 and 214 of the Magistrates Court Act
1930 (ACT) is an appeal by rehearing. The court must have regard to the evidence that
was before the magistrate and undertake a “real review” of the evidence: Alexander v
Bakes [2023] ACTCA 49; 21 ACTLR 27 at [13].
4․	The proceedings were first before me for a hearing on 15 April 2024. On that date, the
appellant filed in court an application seeking a vacation of the hearing and adjournment
to a later date to allow the appellant to obtain further evidence. That application was
made in response to the prosecution filing an affidavit of the appellant’s former solicitor
who had acted for the appellant in the proceedings before the magistrate.
5․	At the hearing on 15 April 2024, I heard submissions on those grounds of appeal that
were not affected by the evidence of the former solicitor and then adjourned the hearing
of the other grounds of appeal to enable the appellant to obtain further evidence.
6․	The proceedings came back before me on 18 June 2024. On that date, evidence was
formally read or tendered and submissions were made on the remaining grounds of
appeal.

Grounds of appeal

7․ The grounds of appeal are as follows:

a. The proceedings before the [magistrate] miscarried as a result of the failure of the [magistrate] to have regard to, and direct himself about, the significance of the

appellant’s good character;

b. The proceedings before the [magistrate] miscarried as a result of the failure of the

Appellant’s counsel:

(i)	to adduce evidence of the Appellant’s good character;
(ii)	to make submissions as to the significance of the Appellant’s good character;
(iii)	to seek that the [magistrate] give himself directions as to the Appellant’s good

character.

8․	By application in proceeding dated 2 April 2024, the appellant sought leave to amend
the notice of appeal by adding two additional grounds of appeal. The two additional
grounds of appeal that are sought to be added are:

c. The proceedings before the [magistrate] miscarried as a result of the failure of the

Appellant’s counsel to adduce evidence of a recording made by the Appellant on

6 September 2022 which captured the Appellant’s contemporaneous denials when the

complainant contacted police;

d. The [magistrate] erred in granting leave to amend charge numbered CC2022/10640, being an offence of committing an act of indecency without consent, to change the provision said to be contravened from s60(2) of the Crimes Act 1900 (ACT) to s60(1) of the Crimes Act 1900 (ACT).

9․	The application to include the additional grounds was opposed by the respondent on the
basis that “neither ground has merit”. It was therefore appropriate to consider the merits
of the application to amend at the same time as considering the merits of the proposed
grounds.

Ground (a)

10․	This ground asserts that the proceedings miscarried as the magistrate failed to direct
himself, and have regard to, the significance of the appellant’s good character. It is not
in any way dependent upon the establishment of any error on the part of the appellant’s
lawyers, the admission of further evidence nor any contested issue of fact arising from
that evidence.
11․	The evidence going to good character was evidence led in chief from the informant that
the appellant did not have a criminal history.
12․	The appellant submitted that the magistrate should have directed himself in relation to
the impact of the appellant’s good character on his likelihood of offending and credibility.
The appellant argued that the appellant’s good character was particularly important as
the determination of guilt was based on the magistrate’s determinations of credibility in
relation to the complainant and the accused.
13․	The respondent submitted that there was no requirement that the magistrate give himself
a direction about the good character evidence, and such a direction was not asked for
by counsel for the appellant. Further, the respondent submitted that, in circumstances
where the evidence of good character adduced at the hearing was limited to the
appellant’s lack of criminal history, it did not have the requisite “immediate and obvious
connection with an issue in the case”: Melbourne v The Queen [1999] HCA 32; 198 CLR
1 at [157] (Hayne J). The respondent submitted that this evidence had no bearing on the
appellant’s honesty and thus had limited credibility use.
14․	The respondent also submitted that the appellant’s lack of convictions would not “bear
in any meaningful way on the probability of his having committed the offences” nor in
relation to his honesty and truthfulness. As a consequence, the respondent concluded
that the magistrate’s failure to direct himself and have regard to the appellant’s good
character did not realistically impact the magistrate’s assessment of the hearing.
15․	The legal directions that the magistrate should have given himself were identified by the
parties. They were contained in a document, the contents of which was agreed between
the parties and which was provided to the magistrate some time before the
commencement of oral submissions on 30 August 2023: Tcpt 30 August 2023 at 2. That
document was not put before the Supreme Court. Counsel for the prosecution indicated
that he would go through the directions in the course of his closing address, and he did
so. I infer from what was said by counsel for the prosecution during the course of his
closing address (Tcpt 30 August 2023 at 11-12) and from the fact that the magistrate did
not articulate any specific direction relating to good character, that the document
provided to the magistrate did not include any specific direction relating to the manner in
which the evidence of an absence of a criminal history could be used.
16․	Neither counsel for the prosecution nor counsel for the appellant made any reference to
the issue of good character during the course of their respective closing addresses.
17․	The magistrate did, however, make reference during the course of his reasons to the
evidence of the informant that the appellant had no prior criminal history: Tcpt
4 October 2023 at 10. He did not articulate any direction as to how that evidence could
be used and did not refer to the absence of a criminal history in articulating his conclusion
that he rejected the appellant’s evidence.
18․	In Simic v The Queen (1980) 144 CLR 319, the applicant had been convicted of
murdering a woman. One of the grounds upon which special leave was sought was that
the trial judge had failed adequately to instruct the jury on the use to be made of the
character of the applicant. There was evidence that the applicant had not been previously
convicted, that he was happily married, that he loved his children and had never been
violent to them or to his wife, and that he had been a satisfactory employee. The only
reference to that evidence in the charge to the jury was a brief mention by the trial judge
that the applicant had no prior convictions. In relation to this ground of the application,
the unanimous decision of the court (at 333-334) included the following:

There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. We agree with what was said on this point in Reg. v. Schmahl [[1965] V.R. 745, at p. 750]. No doubt, speaking generally, it is right to add, as was said in that case, that if such a direction is asked for it would be wise to give it.

In the present case no direction as to the evidence of the applicant's good character was asked for. There is no reason to believe that the jury would not have understood that a man of good character would be unlikely to commit a crime of savage violence such as that with which the applicant was charged. In other words, there is no reason to conclude that the jury would have failed to give the evidence as to good character such weight as it deserved. No miscarriage of justice was in our opinion occasioned by the omission to give a direction on this question.

19․	In Melbourne v The Queen the accused had sought a verdict of manslaughter on the
basis that he was suffering from an abnormality of mind that substantially impaired his
capacity to understand what he was doing or his capacity to know that he should not do
the act. He did not give evidence but had made statements to two psychiatrists and a
psychologist. The trial judge had directed that the appellant’s character be taken into
account on the issue of his guilt, but on appeal the appellant contended that the judge
ought to have directed the jury that they could use the evidence of good character to
conclude that his out-of-court statements to the psychiatrists and psychologist were
credible. A majority of the court (McHugh J, Gummow J, and Hayne J each writing
separately) held that a judge is not obliged to direct the jury about an accused’s good
character but has a discretion whether or not to do so after evaluating the probative
significance of the evidence in relation to the accused’s propensity to commit the crime
charged and the accused’s credibility. That involved a decision not to depart from the
rule in Simic. McHugh J said (at [30]-[31])

30. In my opinion, notwithstanding the rules laid down in these English and New Zealand cases, this Court should not depart from the rule that a judge is not obliged to direct the jury concerning the accused's good character. The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both:

(a) the accused's propensity to commit the crime charged; and

(b) the accused's credibility.

31. The judge may conclude that the good character evidence adduced is of probative significance in relation to (a) only, (b) only, both (a) and (b) or neither (a) nor (b), and can direct (or not direct) the jury accordingly. Whether the discretion has miscarried in a particular case will depend upon the facts of that case. But Australian courts should not now introduce a rule that a direction on character is always required once the accused has adduced evidence of good character.

20․	Gummow J said (at [77]-[79]) that he preferred, and found to be consistent with the
established position in the High Court, the statement of Thomas J in his dissenting
judgment in R v Falealili [1996] 3 NZLR 664 at 671-672 which included:

[I]f the evidence of the accused's good character is both probative and relevant the Judge will, almost as a matter of course, direct the jury as to its significance in summing up the defence case. It would be unfair not to do so. If, on the other hand, the purported character evidence is lacking in probative force and of remote relevance to the charge in issue, the Judge may decide that a good character direction is not warranted. Or the Judge may consider that it would be prudent to proffer a good character direction, but then to qualify it in order to put it in perspective having regard to the circumstances of the case. To proscribe that, whenever character evidence is adduced or elicited, a good character direction should be given and that it must generally embrace both the credibility and propensity limbs of the direction is an unnecessary fetter on that discretion.

In some cases the good character of the accused may be an integral part of the defence. A number of reputable persons may have testified as to the accused's character. In other cases the so-called evidence of good character may be little more than a passing reference, included by defence counsel, perhaps, simply because there is no other defence. In other cases the established facts of the case may itself indicate that, irrespective of how unblemished the accused's reputation may be, he or she can barely be described as a person of good character. Because the circumstances will vary greatly it is not possible to lay down comprehensive guidelines as to when and how the Judge's discretion should be exercised. Nor is it desirable to do so. Unless guidelines are treated as being just that, guidelines and no more, they could themselves inhibit the exercise of a Judge's discretion to do what is most appropriate having regard to the facts of the particular case.

21․ Hayne J (at [157]) said:

There is no reason to depart from the conclusion stated in Simic, namely, that there is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. Of course, if a direction is given, it must be accurate. Ordinarily, however, unless the evidence that is led about the character of the accused has an immediate and obvious connection with an issue in the case, it is better that the judge say nothing of how the jury may use such evidence in reasoning to its conclusions beyond any restatement of counsel's arguments that may be thought necessary or desirable.

22․	Having regard to these authorities, and in circumstances where no direction was sought
and no submissions made in relation to good character, there was no error on the part
of the magistrate in failing to include in his reasons reference to the different ways in
which good character might be used. Further, the magistrate made reference to the
evidence relating to good character and, having regard to the factual circumstances of
the case and the submissions made by the parties, there was no error on the part of the
magistrate demonstrated by the absence of further reference to that issue later in his
reasons.
23․	The appellant placed reliance upon the decision in R v Soto-Sanchez [2002] NSWCCA
160; 129 A Crim R 279 insofar as it articulated the two ways in which character evidence can be used. Although the statement as to the potential use of character evidence in that
case is correct, the circumstances of that case are distinguishable in that a character
evidence direction was given but in terms which were inadequate and without
consultation with counsel as to the terms in which it should be given.
24․	This ground is not made out.

Ground (b)

25․	This ground asserts that the proceedings before the magistrate miscarried as a result of
the failure of the appellant’s counsel:

(a)	to adduce evidence of the appellant’s good character;
(b)	to make submissions as to the significance of the appellant’s good character;

and

(c) to seek that the magistrate give himself directions as to the appellant’s good

character.

26․	Section 110 of the Evidence Act 2011 (ACT) provides that the hearsay rule, the opinion
rule, the tendency rule and the credibility rule do not apply to evidence presented by a
defendant to prove (directly or by implication) that the defendant is, either generally or in
a particular respect, a person of good character. Where evidence is presented to prove
that a defendant is generally or in a particular respect a person of good character, those
rules do not apply to evidence presented by the prosecution to prove that the defendant
is not of good character either generally or in the particular respect claimed by the
defendant.
27․	In TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [94], McHugh J described the
potential significance of character evidence:

Evidence of good character almost always helps an accused person’s defence. Sometimes

it is the decisive factor in returning a verdict of not guilty. It may demonstrate that it is unlikely that the accused committed the act charged, or it may support the credibility of the evidence of the accused in denying his or her guilt.

(Footnotes omitted.)

28․	Claims that there has been a miscarriage of justice because available character evidence
was not adduced at trial are not uncommon. Cases in which such claims have been
upheld include D v R (1996) 86 A Crim R 41; De Silva v The Queen [2013] VSCA 339;
236 A Crim R 214; GZ v The Queen [2015] ACTCA 11 and AK v R [2022] NSWCCA 175;
300 A Crim R 559. Cases in which appellate courts have found no miscarriage of justice
because of the existence of a forensic reason for not adducing such evidence include TKWJ; Parsons (a pseudonym) v The Queen [2016] VSCA 17 and JV v R [2017]
NSWCCA 49.
29․	Where a ground of appeal asserts a failure on the part of counsel appearing for the
accused at trial, the approach to be applied is described in the judgment of McHugh J in
TKWJ at [74]-[85]. Such a miscarriage may arise:

(a) from conduct which means that the appellant has not had a fair trial according

to law: TKWJ at [76]; or

(b)

from conduct which:

(i)	results in a material irregularity; and
(ii)	there is a significant possibility that the material irregularity affected the

outcome of the trial: TKWJ at [77], [79].

30․	The formulation that required determination of whether there was “a material irregularity
at the trial” and whether there was a significant possibility that the acts or omissions of
which complaint is made affected the outcome of the trial has been adopted
subsequently: Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [24] (Gummow and
Hayne JJ); AK v R at [9] (Beech-Jones CJ at CL).
31․	The examples given by McHugh J in relation to conduct depriving the appellant of a fair
trial according to law indicate that this circumstance will not commonly arise. The
examples were a failure, without a valid reason, to cross-examine material witnesses or
a failure to address the jury.
32․	The more usual case is one in which the conduct of counsel has given rise to a material
irregularity which may have affected the outcome of the trial. For that category of case,
whether or not the conduct is negligent or otherwise remiss is an intermediate or
subsidiary issue: TKWJ at [79]. It may help explain why the material irregularity arose.
However, the issues for determination are those set out above: was there a material
irregularity and whether there is a significant possibility that the irregularity affected the
outcome of the trial. A material irregularity will not be found to have arisen just because
an appellant’s trial may have been differently or more skilfully conducted. Similarly, it will
not be found to exist where the course taken by counsel at trial can be understood as
arising from a forensic choice.
33․	In support of this ground of appeal, the appellant relied upon evidence going to two
issues:

(a) what advice he was given by his former solicitor and trial counsel prior to and

during the trial in the Magistrates Court; and

(b) what evidence of good character was available and could have been called at

his trial.

34․ This evidence going to these two issues can be summarised as follows.

(a) Affidavit of Jess Johnson dated 27 March 2024. This described the advice that

he received from the lawyers acting for him in the Magistrates Court in relation

to character evidence. It also described the provision to his former solicitor of a

number of audio recordings that he thought were relevant for the hearing and

the advice that she provided in relation to them.

(b) Affidavit of Adrian McKenna dated 2 April 2024 which annexed a copy of the

proposed amended notice of appeal, a transcript of the recording the subject of

proposed ground of appeal (c) as well as the audio recording itself, and five

statements outlining the character evidence that might have been but was not

called at the hearing in the Magistrates Court.

(c) Affidavit of Jess Johnson dated 8 May 2024. This affidavit included evidence in

support of his denials that he had ever been advised about the potential for

adducing character evidence and to the effect that he had not been advised why

the audio recording made on 6 September 2022 should not be relied upon.

(d) Affidavit of Chris Johnson dated 8 May 2024. Mr Johnson is the appellant’s

father and attended conferences with the former solicitor and trial counsel prior

to the trial. The affidavit set out a denial that advice was ever provided in relation

to the potential for good character evidence. It also annexed two draft witness

statements that were provided to the former solicitor which did not relate to

matters of character.

(e) Affidavit of Vanessa Ryan dated 8 May 2024. This affidavit responded to a

statement in the former solicitor’s affidavit that Ms Ryan was at court during the

trial. Ms Ryan denied this and annexed business records relating to her

attendance at work that day.

(f) Affidavit of Adrian McKenna dated 13 May 2024. This affidavit annexed emails

that had been sent by two people to the former solicitor at the request of the

appellant prior to the trial, as well as a letter from a third person describing that

she had sent such an email to the former solicitor.

35․	The last four of these affidavits were read without objection on 18 June 2024. The parties
appeared to proceed on the basis that the first two had been read on 15 April 2024, even
though they were not formally read. I will proceed on the basis that they were read.
36․	As mentioned earlier, the respondent relied upon an affidavit of the former solicitor dated
8 April 2024 (except for one paragraph which was not read) as well as a file note which
was tendered. The affidavit of the former solicitor described her engagement by the
appellant, the instructions taken from him and the advice given to him. It also described
the decisions made by the former solicitor and the barrister briefed at the trial in relation
to the evidence to be adduced at the trial.
37․	There were clearly very significant factual contests arising from the evidence of the
former solicitor on the one hand and the evidence in the affidavits of the appellant, Chris
Johnson, Vanessa Ryan and Adrian McKenna on the other. The factual disputes related
to what advice, if any, about the potential to adduce character evidence in defence of the
charges was given to the appellant and his father. That was plainly of significance for the
purposes of determining whether or not there was a material irregularity in the conduct
of the trial giving rise to a miscarriage of justice. There would not be a material irregularity
if the advice had been given or if there was some forensic reason that explained why the
evidence was not led.
38․	In the usual course, it would have been necessary to permit cross-examination by the
appellant of the former solicitor upon her affidavit and cross-examination of the
deponents of affidavits read by the appellant if the respondent so wished, in order to
make findings of fact in relation to what advice was given and instructions received, as
well as any forensic decisions on the part of the appellant’s former lawyers in relation to
the obtaining or adducing of character evidence.
39․	However, the approach taken by counsel for the respondent was that ground (b) could
be disposed of without the necessity to resolve those conflicts and the making of findings
of fact about what occurred because, even if there was a defect in the advice given to
the appellant, there was no miscarriage of justice in the circumstances. In other words,
adopting the taxonomy derived from McHugh J’s judgment in TKWJ described above,
the court was invited to proceed on the basis that there was a material irregularity and
then to determine whether there was a significant possibility that the material irregularity
affected the outcome of the trial. The concession by the respondent that the court could
proceed in this manner avoided the necessity to resolve the contested factual issues
arising from the difference between the affidavit of the appellant’s former solicitor and
the evidence as to what occurred relied upon by the appellant. This avoided the need for
cross-examination of the witnesses going to those issues and allowed the hearing to
proceed to finality on 18 June 2024.
40․	The issue therefore became whether, in the context of the other evidence in the case, if
the character evidence put forward by the appellant had been led, there was a significant
possibility that it would have affected the outcome of the trial.
41․	In order to explain my conclusion on this issue, it is necessary to describe the nature of
the prosecution case as well as identify the evidence that the appellant says he could
have relied upon.
42․	The complainant and the appellant were in a domestic relationship for approximately
nine years prior to the acts complained of. The act of indecency was alleged to have
occurred on 6 September 2022. The choking charges were alleged to have arisen from
conduct on 9 October 2022.
43․	In relation to the 6 September 2022 incident, the prosecution case, based upon the
evidence of the complainant, was that the complainant and appellant had a verbal
argument at their residence. The argument escalated to a point at which the appellant
pushed the complainant to the ground, where she landed on her back. He was then
alleged to have stood over her, grabbed her arms and turned her body over so that she
was lying on her stomach. He was alleged to have pulled down her pants or to have
begun to do so. The complainant was able to turn over so that she was lying on her back.
The defendant then opened the front of the complainant’s top and began touching and
kissing her neck and breasts along with touching her vagina on the outside of her
clothing. The complainant was alleged to have been distressed and crying during that
incident, telling the appellant to stop what he was doing. After a short time, he stopped
and walked away.
44․	So far as the 9 October 2022 incidents were concerned, on that Sunday evening the
appellant arrived home to where he and the complainant were residing. The complainant
described behaviour consistent with the appellant being intoxicated. The appellant and
the complainant got into a verbal argument and the appellant was alleged to have placed
both hands around the complainant’s neck, forcing her to the ground, where she landed
on her back on top of an open suitcase. The appellant then continued to apply pressure
to her neck. This was the first incident.
45․	The second choking incident was alleged to have occurred later that evening. The
complainant attempted to console the appellant in the living room. He then placed both
hands around her neck, forcing her to the ground. She described the force as being
extremely painful and as though her head was going to explode. She said she could not
breathe. The appellant was alleged to have said at the time “I am going to do it, I’m really
going to do it.” He was then alleged to have let her go and calmed down.
46․	The complainant was alleged to have made a number of subsequent disclosures in the
form of complaint evidence to friends and doctors and then when she was interviewed
by police on 29 October 2022.
47․	The witnesses called in the prosecution case were:

(a)	the complainant;
(b)	a friend of the complainant, who gave evidence of a complaint made to her on

10 October 2022;

(c) the complainant’s brother, who gave complaint evidence and evidence of a

conversation with the accused;

(d) a work colleague and friend of the complainant, who gave complaint evidence

in relation to the appellant having strangled the complainant and punched a

television;

(e) a third friend of the complainant, who gave evidence of a complaint made to her

about events on 6 September 2022;

(f) the informant, who gave evidence that the appellant had no criminal history and

through whom some records from the AFP database were tendered.

48․	The appellant gave evidence. So far as the incident on 6 September was concerned, he
gave evidence that after an argument, he had kissed the complainant on the lips and
then on the neck, and she leaned back and he kissed her on the stomach as well. He
said he then touched her on the leg and on the breast and she said stop and he stopped.
He denied touching her around her vagina.
49․	In relation to the 9 October incident, he gave evidence that he had pushed her in the
chest or breast and punched the television. He gave evidence of a subsequent
confrontation in which she was poking him in the chest and slapping him and he pushed
her off again.
50․	The appellant’s father, Chris Johnson, also gave evidence.
51․	Documentary exhibits were tendered including:

(a)	audio of a call to police by the complainant;
(b)	various photographs of the complainant;
(c)	collections of emails and text messages between the complainant and the

appellant;

(d) medical records relating to attendance by the complainant following the events

on 9 October 2022;

(e)	text messages between the complainant and one of the complaint witnesses;
(f)	police records concerning previous attendances at the request of one or other

of the members of the couple.

52․	Amongst the text messages were messages between the appellant and the complainant,
which the prosecution relied upon as admissions about his conduct. The position of the
appellant was that any admissions made did not relate to the incident in question but
were rather made in the context of what the appellant described as a “toxic relationship”
between the two.
53․	Amongst the emails that were put into evidence was a form completed by the appellant
on 23 October 2022 for the purposes of entry into a program run by the “Everyman”
organisation in which the appellant recorded that he was perpetrating domestic violence
and engaged in “strangulation and property damage”. The position adopted by the
appellant was that he had included the statements in the document at the suggestion of
the complainant and did so in order to assist in maintaining the relationship with her
rather than because he accepted that the conduct had actually occurred.
54․	In his reasons, the magistrate summarised the evidence that had been given in the
prosecution case and the appellant’s case. He made credibility findings adverse to the
appellant, saying:

I found the defendant’s denials of his responsibility for acts of domestic violence perpetrated

on the complainant to be unconvincing, at times robotic and contradicted by much of the
other evidence.

His explanation of why he made admissions of such conduct, including serious criminal acts was incoherent and not credible. He asked the court to accept that it was safer for him to put up with false allegations than to either deny them directly or to leave the relationship or to call the police. He asked the court to accept that he did not protest his innocence when he was present listening to her call the police to report a rape committed by him.

He asked the court to accept that he had been manipulated by the complainant into admitting

a strangulation to a men’s behaviour and change program. He suggested that she had

tripped over a large dog rather than being injured at his hands but said nothing about a dog, nor denying his responsibility when she texted him from the hospital including with the photo

of her neck injuries. I found the defendant’s evidence to be self-serving and simply not

credible. I reject his evidence.

I also found the evidence of his father to suffer from similar improbability in so far as he claimed that he had witnessed the complainant bash his son and heard her make false accusations of rape but did not ever call the police to report this, nor apparently gather any evidence of these abuses of his son in line with his journalistic background. His similar depth in blaming and excuse for not contacting the police because she would manipulate them is not remotely credible.

By contrast, I found the complainant’s evidence to be coherent and credible, graphically

portraying an abusive relationship that erupted in the physical assaults she described in detail. Her claims were supported by the almost contemporaneous disclosures that she made of, first, the indecent assault incident to a friend the next day and then the police and by her report to medical staff of the strangulations and then to police, within a day of their occurrence around a month later.

55․	The magistrate then referred to specific aspects of the complainant’s evidence which led
him to accept that evidence. These included both matters of substance and matters
relating to the manner in which the evidence was given.
56․	The evidence that the appellant says he would have relied upon is contained in witness
statements obtained for the purposes of the appeal, or in the case of Ms Carden and
Ms Rivarola, obtained by the appellant’s father at trial but not used by the appellant’s
former solicitors. What follows is a summary of those witness statements, which allows
the nature of the evidence and its possible significance to be assessed.

(a) Petrina Carden: Ms Carden is Chris Johnson’s current partner. Her witness

statement relates largely to the events of the night of 6 September 2022 and

Chris Johnson’s actions on that night. It also attests to Chris Johnson’s

character, which does not significantly support the character of the appellant.

(b) Maria Rivarola: Ms Rivarola was Chris Johnson’s former partner. While the

statement contained some evidence about the appellant, it is principally a

reference relating to the character of Chris Johnson. Because of the focus of

the statement on the character of Chris Johnson rather than the appellant, the

failure to adduce it does not significantly support the appellant’s contention that

there was a miscarriage of justice.

(c) Vanessa Ryan: Ms Ryan is the appellant’s current partner. She has known him

since shortly prior to the alleged offences and commenced a relationship with

him from January 2023. The evidence does not address the period up until the

alleged offending. It paints a positive picture of their relationship. It includes

statements such as “Jesse is very good at explaining and talking through his

thoughts and feelings”; “we find it easy to resolve disagreements … Never once

have the disagreements escalated into arguments”. “Jesse rarely drinks alcohol

… and is never out of control”; “I have never witnessed Jesse partake in

recreational drug use or abuse prescription medication”; “He has maintained his

good character, kind heart, gentle nature, and integrity throughout”.

(d) Harrison Bryant: Mr Bryant has known the appellant for approximately 18 years,

first meeting him as a 12-year-old playing Australian rules football for the

Eastlake Demons. They worked together at a small law firm in Canberra for two

years when they were in their early 20s. The statement includes “He always

treats those around him with respect”; “I consider him to be a very relaxed and

level-headed person”; “He is not somebody who I have found to be volatile

emotionally”; “He has always treated his friends and family with kindness”; “I

have never witnessed him demonstrate any aggression (physical or verbal)

toward his partner”; “He was always loving and kind to his former partner while

I was present. He would never raise his voice, he would never be mean or

belittle his partner in front of others, and he was always very tolerant and

patient”; “In my experience, he is not somebody who resorts to violence to deal

with conflict, rather he has dealt with any conflict in a very calm and considered

manner through discussion.” It also refers in positive terms to his conduct at the

Eastlake Football Club and in his employment.

(e) Stephanie Bates: Ms Bates is the appellant’s direct manager in his current

employment. She says that she “did not think these allegations fitted the

character Jesse demonstrates in the workplace”. She says that at work he

conducts himself with “honesty and with integrity at all times”.

(f) Anthony Ratcliffe: Mr Ratcliffe has known the appellant for 15 years through the

Eastlake Football Club. It refers to the appellant’s employment as a junior

development officer at the club and as a customer service attendant. He says “I

have never witnessed Jesse being aggressive in any shape or form on or off

the field, particularly in tight clashes which requires a cool head”.

(g) Sarah Watt: Ms Watt has known the appellant since 2011 as his supervisor

when he was a junior development officer and as his high-performance coach

when he was a player at the same time. She has had contact with him outside

the sporting context, including allowing him to babysit her children. She

described being impressed by the appellant’s “emotional intelligence and

empathy for those around him”. In relation to his former partner, she said that

her impression was that he “demonstrated deep care and concern for his

partner and her happiness and wellbeing” and had “not witnessed any

behaviours that would be conducive to those associated to the charges he

faces”.

57․	Each of these witnesses would have been subject to cross-examination. The respondent
did not point to any particular matters specific to an individual witness that would have been raised if they were cross-examined. However, each would be likely to be
cross-examined by reference to the conduct that the accused admitted in his evidence
arising from an admittedly volatile relationship with the complainant and other aspects of
his conduct and mental health to which the witnesses have not referred in their evidence.
Despite any cross-examination, it can be said that there would be a significant difference
between the positive character evidence that could be spoken to by the identified
witnesses that could have been called, and the bare “no convictions” character evidence
that was called (compare D v R at 42-43).
58․	In assessing whether there was a miscarriage of justice, there are a number of matters
that need to be considered in the circumstances of this case.
59․	First, the respondent did not submit that the adducing of the good character evidence
would have resulted in the prosecution adducing evidence of bad character. It appears
to be a case in which the evidence of bad character was limited to conduct alleged to
have occurred within the relationship and had already been put before the court as part
of the charged allegations or as relationship or context evidence.
60․	Second, this was a case in which the competing evidence as to what occurred at the
time of the alleged offences only differed in minor but critical respects. It was, therefore,
a case in which there was not a stark difference between the versions of events that
might be differentiated by evidence other than from the two protagonists. It was one in
which questions of the honesty and reliability of the complainant’s evidence as to the
additional things that she said occurred was significant.
61․	Third, the prosecution case ultimately turned upon the acceptance, beyond reasonable
doubt, of the complainant’s evidence as to precisely what occurred during the relevant
incidents. In order to accept the complainant’s evidence, the appellant’s evidence would
have to be rejected. The prosecution case involved not only the evidence of the
complainant but also significant complaint evidence from a number of people to whom
complaints were made. There was also additional medical evidence capable of
corroborating (or at least consistent with) the complainant’s version. Importantly, there
were also apparent admissions to the specific conduct the subject of the complaints in
the Everyman application as well as less specific admissions of adverse conduct in the
mass of text messages that were tendered. In order for the appellant’s evidence to be
accepted or for it to give rise to a reasonable doubt, the court needed to accept that the
Everyman application admissions did not reflect what actually occurred and that the
admissions in the text messages did not relate to the events in question. As counsel for
the appellant recognised, persuading the finder of fact that the apparent admissions were
not in fact admissions was, in light of the other evidence supporting the prosecution case, a significant challenge for the appellant and dependent upon the credibility of the
appellant’s evidence. It was in that context that the credibility of the accused was of
central importance and in relation to which character evidence could have been
significant for a finder of fact. It could have been significant both as to whether or not the
appellant’s denials of the offending were honest, as well as to whether or not the
appellant committed the offences.
62․	Fourth, it would be clearly open to a finder of fact in assessing the significance of any
such character evidence to take into account the dysfunctional nature of the relationship
between the appellant and the complainant and the fact that the character evidence was,
for the most part, evidence of conduct outside that relationship. It would also be open to
the finder of fact to take into account that it is a not uncommon feature of family violence
offending that there is a duality of behaviour, which includes behaving in a manner
consistent with good character in circumstances where the behaviour will be observed
by persons outside the relationship, and family violence offending where the behaviour
is not observed (compare the different but related observation in Slattery v R [2023]
NSWCCA 117 at [91]).
63․	Fifth, this is a case in which whether or not there was a miscarriage of justice is not
required to be assessed in ignorance of the reasoning process of the finder of fact as
would be the case where the trial was by jury. Although the reasons of the magistrate
appeared to concentrate on the substance of the evidence given by the appellant and
his father, it is important to recognise the significant benefits that the magistrate had in
assessing that evidence when compared with a judge merely able to read the transcript
and examine the exhibits. It is very difficult to say that general character evidence of the
sort intended to be led may not have influenced the assessment of the credibility of the
appellant.
64․	Sixth, it cannot be said that the effect of any good character evidence would have been
decisively undermined by admitted evidence of bad character inside the relationship with
the complainant. While there was evidence which was open to be characterised as
involving very significant admissions made by the appellant in the Everyman application
and the text messages, the meaning of, and reasons for, the statements made by the
appellant were contested. It was, therefore, not a case in which it could be said that the
good character evidence would be decisively undermined by admitted conduct of which
the character witnesses were unaware.
65․	Seventh, even though the context in which some of the character witnesses had known
the appellant was that of work or a sports club, and that may affect the weight that could
be given to any such evidence in relation to whether or not the appellant committed the offences in question, the evidence would still have been relevant to assessing the
likelihood that he would lie about such evidence in court.
66․	Even having regard to the findings made by the magistrate and his reasons for rejecting
the evidence given by the appellant, had the character evidence been admitted, there is
a significant possibility that it would have affected the outcome of the case. That is
particularly so in circumstances where the factual differences as to what occurred
between the complainant and appellant were relatively modest and where character
evidence had the potential to bolster the appellant’s explanation of the otherwise
significant admissions, most notably in the Everyman application. The prosecution case
was, while strong, not so strong as to exclude the possible effect of the positive evidence
of good character. There is a possibility, going beyond mere speculation, that had the
character evidence been led it would have been sufficient to bolster the credibility of the
appellant so as to at least create a reasonable doubt as to the accuracy of the
complainant’s version of events.
67․	This ground of appeal is established.

Ground (c)

68․ The first additional ground upon which leave is sought to be added is that the

proceedings below miscarried as a result of the failure of the appellant’s counsel to

adduce evidence of an available recording on 6 September 2022 of the complainant’s

telephone call to police.

69․	I do not accept the submission made by the respondent that the failure to adduce the
evidence can be understood as a forensic choice because disclosing the existence of
the recording would have involved admission of a breach of the Listening Devices Act
1992 (ACT). That is because, in the circumstances, it is likely that the recording would
not have been an offence because it could be established that the appellant considered
the recording on reasonable grounds to be necessary for the protection of that principal
party’s lawful interests.
70․	More significant is the respondent’s submission that the content of the recording would
have not assisted the appellant in the manner that he contended and its admission into
evidence carried with it forensic risks. The recording in question was consistent with the
evidence given by the appellant. However, on the critical issue as to whether or not he
had denied the allegations made by the complainant while she was on the phone to
police, the recording did not clearly corroborate what he said. Given that the evidence
recorded only part of the interaction between the appellant and complainant and only
part of the telephone call between the complainant and police, the recording did not
corroborate, but was not inconsistent with, the appellant’s evidence that he had denied
the allegations that she made. Further, the recording contained audio of the complainant
crying while on the phone to police. That carried with it the risk that the finder of fact may
treat what can be heard on the recording as reinforcing the complainant’s version of
events. That remained the case even if submissions might be made in support of the
contention that the manner in which she was crying was not supportive of her credibility.
Therefore, the failure to adduce this evidence carried with it the forensic advantage to
the appellant of avoiding the risks associated with its admission. Overall, it cannot be
said that the failure to adduce this evidence gave rise to a miscarriage of justice.
71․	As this proposed ground of appeal is without merit, and the appeal is to be allowed in
any event, leave will be refused to amend the notice of appeal to include it.

Ground (d)

72․ The charge on the information was formulated as follows:

THAT HE, IN THE AUSTRALIAN CAPITAL TERRITORY, BETWEEN 04 SEPTEMBER, 2022 AND 09 SEPTEMBER, 2022, DID COMMIT AN ACT OF INDECENCY ON [COMPLAINANT], WITHOUT THE CONSENT OF THE SAID [COMPLAINANT], AND BEING RECKLESS AS TO WHETHER THE SAID [COMPLAINANT] HAD CONSENTED THERETO AND THE OFFENCE INVOLVED FAMILY VIOLENCE.

73․ The information included the following statement.

Act and Section under which proceedings taken or charge laid:

IN CONTRAVENTION OF SECTION 60(2) OF THE A.C.T. – CRIMES ACT 1900

74․	During the course of the prosecutor’s final address, there was some discussion of the
appropriate charge number. Following that discussion, at the request of the prosecutor,
the magistrate amended the information by striking through the “(2)” in “SECTION 60(2)”
and inserting “(1)” instead.
75․	This proposed ground asserts that the magistrate erred in allowing the prosecution to
amend the charge sheet to refer to s 60(1) instead of s 60(2).

76․ As at the date of the offending involving the act of indecency (between 4 and

9 September 2022) sections 60 and 72AA of the Crimes Act provided relevantly as

follows:

60            Act of indecency without consent

(1)	A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who is reckless as to whether that other person consents to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 7 years.
(2)	However, for an aggravated offence against subsection (1), the maximum penalty is imprisonment for 9 years.

Note Section 72AA (Aggravated offences—pt 3 offences involving family

violence) makes provision in relation to an aggravated offence against this

section.

…

72AA	Aggravated offences—pt 3 offences involving family violence
(1)	This section applies to an offence against any of the following provisions:

…

(i) section 60 (Act of indecency without consent);

…

(2)	The offence is an aggravated offence if the offence involves family violence.
(3)	If the prosecution intends to prove that the offence is an aggravated offence, the factors of aggravation must be stated in the charge.

…

(5) In this section:

factor of aggravation means the matter mentioned in subsection (2).

…

77․	As will be apparent from the terms of s 60(2), the relevant offence remains an offence
against subsection (1) but the increased penalty is provided for by subsection (2) where
the circumstance of aggravation exists. Consistent with the offence remaining a
contravention of s 60(1), s 72AA(3) requires notice to be given by the prosecution of an
intention to rely upon the circumstances of aggravation and, hence, expose the accused
to the greater penalty. That may be done, as it was in this case, by specific reference to
the aggravating factor in the terms of the charge (“and the offence involved family
violence”).
78․	Having regard to the fact that the charge complied with the requirement of s 72AA(3) by
including the reference to family violence, whether or not the information contained
reference to s 60(1) or s 60(2) was of little significance. Given the explanation of the
relationship between ss 60(1) and (2) above, it was open to identify the contravention as
being one of s 60(1). However, referring only to s 60(2) was not incorrect because that
subsection necessarily operated upon an underlying contravention of s 60(1). Whichever
section was referred to, having regard to the inclusion in the formulation of the charge of
a reference to family violence, the accused was properly put on notice of the fact that
what was alleged against him was an offence which was aggravated by reason that it
involved family violence. Whether or not the charge was amended from its original
reference to s 60(2) would be of no consequence to the validity of a conviction for an
aggravated offence against s 60(1).
79․	The position is, therefore, even if the appellant was successful in establishing that there
was no power under s 28 of the Magistrates Court Act 1930 (ACT), in the circumstances
that existed, to amend the information so that it referred to s 60(1) rather than s 60(2),
that would have no consequence for the conviction or any sentence that might ultimately
be imposed. The magistrate was entitled to convict him of the aggravated offence and
punish him by reference to a maximum penalty of imprisonment of nine rather than seven
years.
80․	In those circumstances, it is not necessary to consider the respondent’s submissions
about the precise scope of the “information” for the purposes of s 28 or attempt to
determine what information on the “Bench Information/Charge” sheet constitutes the
“information”.
81․	The submissions of the appellant have as their foundation the decision of Connolly J in
Wade v Evans [2003] ACTSC 85; 180 FLR 290. In that case, his Honour referred to a
number of authorities in other jurisdictions and concluded that a magistrate should not
have permitted an amendment of the charge from alleging one offence to a charge
alleging a different offence. In that case, the amendment was from a charge alleging
driving while the driver’s licence was cancelled contrary to s 32(3)(a) of the Road
Transport (Driver Licensing) Act 1999 (ACT) to a charge of driving while he was
disqualified from holding a licence contrary to s 32(1)(a) of the same Act. Wade was
followed by Penfold J in Byrne v Hulbert [2009] ACTSC 124.
82․	The submissions of the appellant asserted that “to change the offence provision from
s 60(2) to s 60(1) would fit into the same kind of circumstance in Wade v Evans and
Byrne v Hulbert of effectively amending to permit the laying of a different charge. A
charge with different elements and a different maximum penalty.”
83․	It is not possible to accept this submission having regard to the fact that at all times the
language of the charge included the circumstances of aggravation “the offence involved
family violence” and the explanation of the relationship between s 60(1) and s 60(2)
above. At all times the aggravated offence was asserted. The charge and maximum
penalty remain the same. The appellant and his counsel before the magistrate
understood that to be the case and, as a consequence, quite properly, took no objection
to the making of the amendment to the information. The principle derived from Wade had
no application.
84․	As this proposed ground of appeal is without merit, and the appeal is to be allowed in
any event, leave will be refused to amend the notice of appeal to include it.

Orders

85․	Because the appellant has succeeded on ground (b), the appeal must be allowed, the
orders of the Magistrates Court set aside, and the proceedings remitted for hearing
according to law.
86․	For those reasons, the following orders are made:

1.       Dismiss the application for leave to file an amended notice of appeal.

2.       Appeal allowed.

3.       The orders of the Magistrates Court made on 4 October 2023 are set aside.

4.       The proceedings are remitted to the Magistrates Court for determination

according to law.

I certify that the preceding eighty-six [86] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 6 November 2024