Kelly (a pseudonym) v Hucker
[2023] ACTSC 36
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kelly (a pseudonym) v Hucker |
Citation: | [2023] ACTSC 36 |
Hearing Date: | 22 February 2023 |
DecisionDate: | 7 March 2023 |
Before: | Mossop J |
Decision: | 1. The appeal is dismissed and the convictions are confirmed. |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from findings of guilt – where appeal challenges findings of fact – where appellant found guilty of choking and common assault – whether magistrate failed to consider exculpatory evidence – whether mental element for common assault satisfied – whether any failure of the magistrate to return a verdict of not guilty on one ground should lead to doubt in relation to other grounds – turns on own facts – appeal dismissed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 26, 27 Magistrates Court 1930 (ACT), ss 207, 208, 218 |
Cases Cited: | Fox v Percy [2003] HCA 22; 214 CLR 118 Liberato v The Queen (1985) 159 CLR 507 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 |
Parties: | Ron Kelly (a pseudonym) (Appellant) Rachel Hucker ( Respondent) |
Representation: | Counsel T Game SC and R El-Choufani ( Appellant) K McCann ( Respondent) |
| Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 24 of 2022 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Lawton Date of Decision: 30 June 2022 Case Title: Hucker v [Ron Kelly] Court File Numbers: CAN1315/2022 CAN1316/2022 CAN1393/2022 |
MOSSOP J:
1․This is an appeal from a decision of a magistrate in a criminal case given on 30 June 2022. The appellant was found guilty of one count of choking contrary to s 27 of the Crimes Act 1900 (ACT) (Crimes Act) and two counts of common assault contrary to s 26 of the Crimes Act. In order to conveniently identify the counts in the course of these reasons they, will be referred to as follows:
(a)the choking charge (CC 2022/1393): choking contrary to s 27 of the Crimes Act;
(b)the punching charge (CC 2022/1315): common assault contrary to s 26 of the Crimes Act; and
(c)the slamming charge (CC 2022/1316): common assault contrary to s 26 of the Crimes Act.
2․The alleged victim of the offending was the 15 year old son of the appellant. The proceedings were heard on 27, 29 and 30 June 2022. At the conclusion of the hearing the magistrate gave an ex tempore judgment and found each of the offences to have been proved beyond reasonable doubt.
3․Because identification of the appellant would involve identification of the complainant (his son), the appellant has been referred to by a pseudonym and the names of the witnesses have been anonymised.
The appeal
4․The appeal is brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT) (MC Act). Jurisdiction to hear such an appeal is given by s 207 of the MC Act. The orders that may be made are those set out in s 218 of the MC Act. The appeal is a rehearing but one in which error on the part of the court below must be established: McFarlane v Van Eyle [2022] ACTCA 68 at [18]-[21].
5․The grounds of the appeal as set out in a Further Amended Notice of Appeal are as follows:
Ground 1: The primary Magistrate erred in attempting to reconcile [BK’s] evidence with the complainant’s evidence in relation to the “punching charge”.
Ground 2: The primary Magistrate ought to have had a doubt in relation to the slamming charge.
Ground 3: If ground 1 is upheld and that conviction is set aside, then the Magistrate erred in his ultimate conclusion that the “choking charge” (and also the “slamming charge” if Ground 2 fails) were established beyond reasonable doubt.
6․Although ground 1 is, in form, a ground going to the fact-finding methodology used by the magistrate, each ground of appeal asserts, as a matter of substance, a factual error on the part of the magistrate. Something more will be said about the terms of the grounds of appeal when each is considered.
Evidence in the case
7․In order to permit the consideration of the grounds of appeal, it is necessary to make reference in some detail to the evidence given by the witnesses. The summary of the evidence below is not comprehensive because it focuses on the matters relevant to the determination of the issues on appeal.
Complainant
8․In an evidence-in-chief interview with police the complainant said that his father had come through the back door:
And he just came straight at me, and he put his hand on my neck. And he pushed me towards the cupboard and he maybe hit me once or twice. Um, and that maybe went on for around thirty seconds. And then, after that, he came back again, and he got my head with his hand and he hit my head on the table. Um, and he held it down while he was just talking about drinking his alcohol, um, and then that was it I guess, yeah.
9․In further evidence-in-chief given at the hearing he said that the incident involved “first a hand to the neck while pushing me towards the cupboard”. He felt “a strangling pain in my throat”. This lasted three to five seconds but he could not say exactly. His father was yelling at him about the alcohol but he could not recall exactly what was said. His father walked outside again and then came back for a second time. He was standing next to his sister and his father “pushed my head towards the table and he was holding it there”. He described that he had his head pressed down “quite hard”. He estimated that this was for five seconds. He described his father as being “Angry. Mad.” He said his father then went outside and he went upstairs to his sister CK. There he borrowed CK’s phone and took photos of the marks on his body. He described and marked up the photos that he had taken.
10․He was then asked about being hit by his father and said that his father had “one hand on the neck and then I was also against the cupboard so then he hit me”. He was asked how many times he was hit and he said “Twice … One was on my chest area, and then my arm I think it was.” He said that he had identified in the photographs one of the areas where he was hit. Although the transcript did not make it clear, this appears to be photograph three, which shows a portion of his upper right arm.
11․In cross-examination he was asked about some peripheral background matters. He was asked about his father having earlier smashed his phone which was given to him by his mother. He agreed that he had said, prior to his father coming into the house, something to the effect that “he can shove that bottle up his arse”. An alternative version of events was put to him and he largely disagreed with that.
12․He was cross-examined about his statement in the evidence-in-chief interview that his father had “maybe hit me once or twice”. The cross-examination was as follows:
All right. I am suggesting to you that you have said “maybe hit me once or twice” - - -?---Yes.
- - -because you weren’t sure what had happened?---Because I wasn’t sure if he hit me once or twice.
So, are you saying that the “maybe” was relevant to whether it was once or twice?---Yes.
All right. So it may have just been once?---Yes.
And if it was once, where did he hit you?---Probably my arm.
Probably your arm?---Yes.
Are you saying that - so when you say probably your arm, is that something you are not quite sure of?---I know he hit me but- - -
I’m sorry?---I know he hit me but I’m unsure if it was my chest or arm.
…
Your evidence is that you are certain it was once?---Yes.
But you are not certain of any more than that?---But I don’t know if he hit me one more time after that.
13․There was then some further cross-examination about the making of statements to police, some video that was taken on the evening and what marks could be seen on the photographs. It was suggested that what his father did had nothing to do with any of the marks on his neck. He disagreed with that. He disagreed with the suggestion that he was exaggerating what had happened because he was angry with his dad because he had taken away the PlayStation and confiscated his phone, because he was much stricter with the complainant and he was in trouble for drinking alcohol. The complainant denied all of these matters.
14․Following re-examination the magistrate asked some questions about the photographs of where the incident occurred.
BK
15․The next witness was BK, the twin sister of the complainant. She gave a description of the incident which occurred after she told the complainant that the appellant was accusing the children of drinking his alcohol. She described her father “walking very aggressively” to the complainant. He “grabbed [the complainant] by the throat and like threw him up against the cupboards in the kitchen, choking him with [the complainant’s] tippy toes like just on the floor”. She then described her father leaving and then returning to the kitchen. She said “I was standing on the left of [the complainant] and he slammed his head on the bench for a couple of seconds”. She subsequently had dinner with her father because she did not want him to go upstairs where [the complainant] was. During the incident she described her father as “Very upset, angry. He was just like screaming”. She described him as having grabbed the complainant “On his throat”. She said “the first time when he grabbed him he threw him like to the cupboard and choked him and [the complainant’s] toes just touched the ground and his food fell all over the floor and ‑‑ yes”. She said that her father was holding the complainant for around “a couple of seconds”. She gave a description of her father having grabbed the complainant’s head. It appears that she demonstrated this but the transcript does not record with precision what she indicated. She said he was held on the bench for “probably like two seconds”.
16․She was cross-examined about background matters including the appellant’s earlier smashing the complainant’s phone with a hammer. It was suggested to her that during the conversation with the complainant that preceded the incident she was angry at the complainant. She denied that and said that she was angry with her father.
17․She was cross-examined about marks on the complainant’s neck observed when they were on a holiday in Queensland shortly prior to the incident. She was asked to identify the position that she was in during the initial choking incident and when the complainant’s head was down on the benchtop. An alternative version of events was put to her. She was asked questions about how much of the alleged choking she could see:
Yes, okay. And so is it – is it the case that once your dad has [passed] you and he was between you and [the complainant] that then you couldn’t see all of [the complainant]?--- No, I saw all of it. I witnessed everything.
Okay, no, but the question was that once your dad walked past you that you couldn’t see all of [the complainant], is that right?---No. I saw [the complainant].
Was there any part of [the complainant’s] body that you couldn’t see because your dad was in the way?---Before he grabbed him?
Yes, before?---No.
All right. So you’re saying that there was no part of [the complainant’s] body that you couldn’t see?---Yes, I could see him.
And what about when your dad grabbed him? Was there any part of [the complainant’s] body that you couldn’t see because your dad’s body was in the way?---Yes, well, [the appellant] was standing in front of him, choking him against the cupboard. So I wasn’t able to see [t]here. I could see his head and his toes, his legs.
So just to clarify, you’re saying that when [the complainant] was up against the wall - - - ?---The cupboard door.
Sorry, the cupboard door, dad’s body was in the way of [the complainant’s] body so you couldn’t see all of [the complainant’s] body?---No, but most.
Well, I just want to go back and find out what you could see and what you couldn’t see, okay. So, now you said before that you couldn’t see this part of his body and when you did that you kind of motioned from like the neck down to about the waist area, okay? You just did a general kind of hand swipe?---Around - - -
So is that the part - - -?--- - - - his stomach.
Okay. So you’re saying that there was – you couldn’t see around [the complainant’s] stomach?---No, because [the appellant] was standing in front of him, so obviously I wouldn’t be able to see [the complainant].
18․She was asked about the possibility that the complainant had attempted to kick her father. She appeared to be confused by that suggestion. She denied that this had occurred. It was suggested to her that she was not able to see the complainant’s neck because her father would have been in the way. She said: “But I can see my dad’s arm on the back lifted up… and tell that [the complainant] is being choked”.
19․She was then asked about the choking. She said “He was choking, his neck… I could see his fingers and [the complainant’s] head and it being wrapped around it.” It was suggested to her that she was just making an assumption that the complainant was being choked. She denied that.
20․The following then appeared in the transcript:
The – now you certainly didn’t see your father punch [the complainant]?---Punch [the complainant]?
Yes?---Punch [the complainant]?
No – you didn’t – you did not see your dad punch him?---He never punched him.
No?---He choked [the complainant].
Yes, yes. So I’m just clarifying that – I’m just doing my job here. I’ve got to ask you some questions, okay. But what I’m asking you is that – well-saying to you you didn’t see your dad punch [the complainant] at all?---No, because [the appellant] did not punch [the complainant]. All you saw was the hand on the neck and then the later incident at the bench?---Yes, where [the appellant]---
Okay?------Slammed [the complainant’s] head.
21․In relation to the head on bench incident the witness was asked about the position of various people and gave evidence as follows:
And then you saw [the complainant] come down onto the bench?---Yes. That’s when I noticed that [the appellant] was there when he grabbed-and his head hit the bench.
Now, if I suggest to you you would not have been in a position to see that, what do you say?---No, because I was on the left, me and [the complainant] were talking, [the appellant] comes up and his head gets a slammed right next to me.
So at that stage [the complainant’s] upper body moves towards the bench?---Well, yes.
And if I suggest that you didn’t see what caused him to move downwards towards the bench, would that be correct?---No, I did see [the appellant] smashed his head down.
Well, I suggest that [the appellant] had his hand on [the complainant’s] right shoulder and---?---No.
---Not on his neck? Not on the back of his neck?---Incorrect.
And you didn’t say your father grabbed [the complainant] the by the back of the neck?---I could tell when [the complainant’s] head was getting slammed that [the appellant] had appeared behind but was---
Okay. Do I take it by that you didn’t actually see [the appellant’s] hand but you saw movement of - - -?---Saw when it was getting slammed down, I could see it right next to me. And I was screaming at [the appellant] to stop because I couldn’t do much other than screaming “Stop”.
22․She said that she observed red marks on the complainant’s neck after the incident and the next morning before going to school. She was asked whether her memory was based upon photos and said “mostly, yes. Because this happened a long time ago but I do remember clearly seeing it in the morning before school.”
23․She was asked about conversations with her sister and her father’s girlfriend, FM. She denied having demonstrated to FM an open hand under the complainant’s collarbone as opposed to on the complainant’s neck. She was then cross-examined about other matters she was alleged to have said to FM. She said “I don’t really remember the whole conversation. Because it was a very traumatic experience for me, or one of them.” Next, she was asked:
[A]nd did you tell [FM] that [the complainant] moved his body and bent over the bench?---Yes, because [the appellant] forced it that way to the bench.
All right, well I suggest that you didn’t say that [the appellant] forced –you didn’t say to [FM] that “[the appellant] forced [the complainant’s] body onto the bench?”---I did say that.
Alright?---Because [the appellant] shoved him onto the bench.
Okay?--- His head and shoulders.
24․Ultimately it was suggested to her that she had not told the truth because she wanted to get her dad into trouble. The witness denied that proposition.
25․There was no re-examination.
CK
26․CK then gave evidence. She was 17 at the time of the incidents. She recalled her brother coming into her room. His eyes were red and “full of water”. He asked her if he could take photographs with her phone. She was confused because he had “all these marks on his body”. She went downstairs and said to her father “whatever you did to [the complainant], do it to me”. Her evidence was that he laughed.
27․She said she had been on the phone when the complainant came in and that she had the following conversation with the complainant:
“Dad just, like – we got into a fight and he put me – he strangled me, he put my head against the counter,” and like as he was saying what happened, he was pointing to the marks there and then on his arm I’m pretty sure, and I think somewhere else and then, like, we – I didn’t get into detail with him. I was just so angry, I gave him my phone and I went straight downstairs.
So, “he strangled me, he put my head on the counter”?---Yeah. He, like, banged his head on the counter, put his head down.
And then he said-you saw some marks?---Yeah. He was saying, like, “he strangled me.” He showed me the mark and then he-he said, “he pushed, like, pushed me around the”-his hand on his arm.
So he showed you marks on his throat and arm?---Yes.
28․She said that the complainant appeared upset and needing somebody to talk to. She said that he did not normally talk to her but spoke to her for a long time that night.
29․She then said that he had not told her that he “got in a fight with [their] dad” but that “he said that dad ‘bashed him’.” The following appears in the transcript:
And, I think you said the word, “strangled”?---M’mm.
Did [the complainant] use that word?---Yes.
And what did he say about that word and what were his words?---He just said, “dad strangled me”, and he put [the complainant’s] head down on the counter and pushed him.
And, I know it’s just being precise, what words did [the complainant] say about the counter? ---He pushed [the complainant’s] head onto the counter and as he was saying that, he was just pointing to the marks on his body and, like, explaining. But it was really quick. He came in my room. I hung up the phone. I saw he was, like, upset, and then he told me briefly and I went straight downstairs.
30․She gave further evidence about the marks that she saw on his body. Leave was granted to refresh her memory by reference to something in her police statement. She said that her father was angry with the complainant and said that “he wanted to bash [the complainant’s] head in because he was frustrated”. She said that when she went downstairs “he was smiling and he was saying that [the complainant] was being a smart arse and he wanted to like – basically describing to me that he deserved it and whatever happened, happened. But he admitted it. It happened.”
31․She clarified this evidence in cross-examination in the following manner:
He didn’t admit at what he’d done but what he was – the way he was presenting himself to me that he had admitted what he had done. He wasn’t saying, ‘[CK], what are you talking about?’ He didn’t say, ‘Oh, I did just strangle [the complainant].’
32․She was then asked about punching:
All right. Now, [the complainant] certainly didn’t say he was punched?---No.
And he didn’t say he was hit by your dad?---He may have mentioned hit but not punch.
33․She was then asked about a conversation with FM and BK. She denied many of the propositions put to her about content of that conversation.
34․She was asked some questions about text messages that she sent and it was suggested to her that she had made an inaccurate statement to police about her father saying that he wanted to bash the complainant’s head because she was upset with him because he had not contacted her. She denied that.
35․In re-examination the witness affirmed the truth of the evidence that she had given and denied that she had been untruthful because she wanted to get her dad in trouble.
UT
36․The next witness was UT, the mother of the three children and ex-partner of the appellant.
37․Her evidence-in-chief was only that on 20 February 2022 she had taken her children to speak to police about the incident. She was cross-examined at some length about the circumstances of the discussions with police. She was asked about the circumstances in which she found out about the charges against the appellant.
Justin Abrahams
38․Mr Abrahams was a teacher at Canberra Grammar School. He gave evidence of the complainant’s disclosures to him which included some background information and the following:
He’d been accused of taking alcohol, which he denied. This is in the kitchen, I believe. [The complainant] then said that dad grabbed him by the throat/head and dragged him across the room, kitchen, or pushed him across the kitchen, which he ended up slamming into the kitchen cabinets. He was then hit a few times, punched a few times in the chest. His head was then hit against a bench. He said it all happened so quick.
39․The complainant described to him having taken photographs of the marks. In relation to having his head hit on the bench Mr Abrahams gave the following evidence: “Because I asked him, being involved in sport, I said, “did you get knocked out? Were you concussed”, that type of thing, he said, “no, but I do have a headache”.
40․He described the complainant as being “shaken”. In cross-examination he was asked about the reference to punches:
Okay. All right. Now, he said to you that he was punched a few times on the chest?---Yes.
You recall that?---Yes.
He said the word “punched”?---Yes.
Did you ask about the force?---No.
Okay. But you do remember he said the word “punched”?---Yes.
41․He was taken to a file note that he had made which said: “[the complainant’s] father then punched him three times on the chest”. He agreed that the complainant had told him that.
42․In re-examination he was referred to another part of the note in which he recorded “Father grabbed him by the throat/neck.”
Graeme Lendrum
43․Mr Lendrum was also a teacher at Canberra Grammar School. Mr Abrahams had told him about the disclosure made by the complainant. He spoke to the complainant. The relevant part of what the complainant told him was:
[The complainant] then said that his dad had grabbed him on the throat and had pushed him against the kitchen benches. His dad had punched him three times in the chest … and I think his sister was there at the time, had seen that.
44․The complainant indicated that he would prefer not to stay at his father’s house. As to the evidence that the appellant pushed the complainant against the benches, Mr Lendrum added the following after refreshing his memory from a police statement: “He said to me his father had grabbed [the complainant’s] head and hit it against the kitchen bench”. In cross-examination he agreed that what he had told the police was a mix of what had been written in the note prepared by Mr Abrahams and his memory. In re‑examination he confirmed that he had an actual recollection of the complainant saying that his father had punched him three times in the chest and that he had grabbed his head and hit it against the kitchen bench.
Constable Rachel Hucker
45․Constable Hucker gave evidence that on the afternoon of 3 February 2022 she had attended the complainant’s address. The initial complaint made by the complainant was described as “something like he’d shoved him onto the kitchen bench and into the kitchen cabinets, and he had marks on him, as a result” and “he had pushed him by the chest and punched him in the chest and then like grabbed him by the neck and pushed him back”.
46․She said that a recorded interview had been conducted with the complainant. The appellant was arrested later that evening.
47․She gave evidence that she obtained statements from the complainant’s sisters on 20 February 2022 and also a supplementary statement from the complainant to address the choking charge.
48․In cross-examination she said she had not seen any visible injuries or marks on his neck. During the interview she could not see any marks on his neck. She was asked various questions about aspects of the investigation. She was asked about the circumstances in which she took statements from three children on 20 February 2022. She said she had not told them not to talk to other witnesses or not to talk to each other. The statements were taken from them while they were all in the same room. She was asked about some of the language in the statements and how that language came to be used.
The appellant
49․The appellant gave evidence about matters that provided background for the incident. Having regard to the way the appeal was run it is not necessary to set that evidence out in detail.
50․He gave evidence about having confiscated the PlayStation controls from the complainant because the bathroom had been left in a mess. He gave evidence about asking the children whether they had been drinking alcohol from bottles in the kitchen. He said he heard screaming and yelling. He said he heard the complainant saying “he can stick his vodka bottle in his arse”. The complainant repeated this when the appellant came in. He said that the complainant kept on abusing him and gave some details of a conversation. He said that the complainant had then said “go fuck yourself. Stick your bottle in your arse. I did not drink the bottle”. He said he then approached within 30 cm of the complainant and asked him what he had said and the complainant repeated it again. He said he then saw the complainant’s knee coming up towards his groin. He said that he put his hand on the top of the complainant’s chest, the complainant started walking back, the appellant was walking forward and the complainant hit his head on the cupboards intentionally. The appellant said he put his hand on the complainant chest to stop him from hurting the appellant or anyone else. He did a demonstration which indicated that his right hand was below the collarbone with some on one side and fingers spread out on the other side. He said he maintained his hand on the complainant’s chest and said to the complainant that he could go to his mother’s house. He said he was not placing much force on the complainant’s chest. He said he was against the wall for five or six seconds. After that BK was screaming “let him go, let him go” and the appellant walked out toward the barbecue. He denied grabbing the complainant by the neck and applying pressure to his neck. He denied touching his neck in any way. He denied punching or hitting the complainant.
51․He said that the complainant said to him “Come on, why don’t you hit me you fucking pussy. Come on, hit me”. He said the complainant approached him while he was behind BK and the appellant grabbed the complainant by the shoulder and said that if he did not like the rules and responsibilities of the house he could pack his bags and go to his mother’s house. He said:
At the time [the complainant] started bending over, towards the bench. His head didn’t hit the bench, didn’t even move. I found it a bit weird. [BK] was saying, “Stop, stop stop”. I took my hand off his shoulder and I walked away.
52․He later described the head on bench component of the interaction in the following portion of transcript:
So was [the complainant] facing you or facing the bench?---[the complainant] was – [the complainant] was facing me and then he turned to the bench.
Okay. At what point did he turn to the bench?---When I grabbed his shoulder.
Then you say he then---?---Started leaning forward.
All right. Okay. Did you do anything to force him down?---No.
Now, you’ve heard evidence that you pushed him down to the bench?---Yes.
Okay. Did you do that?---No.
Did you see his head impact with the bench?---No.
What happened after – so you had hold of his shoulder?---That’s correct.
And then he moved forward, is that right?---That’s correct, yes.
So the body moved forward?---Yes.
When did you let go of his shoulder?---Because his head was-his head was like bent over and I didn’t understand why and I felt really weird about this, so I let go.
53․He said that when CK came downstairs he had said “[the complainant] is just lying, he’s been playing these games and I’m not going to deal with this right now”.
54․In cross-examination he denied that he was angry when he was told by the complaint to “stick a vodka bottle up his arse”. He denied he had lost his temper. He denied being angry or trying to intimidate him when he moved close to him. He denied that he was lying.
55․He was asked questions about the movements involved in the incident when he said the complainant put his head down towards the bench. In relation to that, the transcript shows:
Then the next portion of your evidence is he does this movement when he moves his body downwards to the bench?---That’s correct.
Okay. I think he described that, as it was a bit weird?---Of course.
He would agree that it is very weird?---Very.
56․He was asked about the movements of the complainant’s knee. He said that it did not make contact with him. He said that his foot came off the floor with his knee coming up. He was asked how close the knee came to him and said “[h]is knee action was coming closer than what it was before.” It was suggested to him that he had committed each of the offences and he denied doing so.
57․There was some limited re-examination.
FM
58․FM was the partner of the appellant. She said that on 3 February 2022, after police officers had left, she spoke with CK and BK and she made some notes at the time. She gave evidence about the content of that conversation. She said that she had been told by BK that the appellant had “put his hand around [the complainant’s] neck”. She said that BK motioned to just under her collarbones. And after that her evidence was:
[BK] said that [the appellant] walked away and [the complainant] kept saying things to [the appellant]. She said then – she said then [the complainant] was – I think her words were, “[the complainant] was, like, touching [the appellant].” And then she said, “and then [the appellant] grabbed [the complainant’s] arms or hands. [The appellant] grabbed [the complainant’s] hands”. And then she said that [the complainant] bent over the bench”, and then she was demonstrating that action for me.
59․She described the demonstration as “the top half or quarter half of her body leaning over.” She then did a demonstration which described her bending down from the waist to almost a 90-degree angle.
60․She described a conversation with CK and BK and then a subsequent conversation with just CK. She said that CK told her that the complainant was not hurt but was smiling and happy. She also said that he was “making words out of toilet paper”. She was asked about this last statement in cross-examination. She was asked questions for credibility purposes going to her relationship with the appellant. She denied that she was mistaken about where BK showed that the appellant had put his hand on the complainant’s neck. She denied having spoken to the appellant about the incident itself or the evidence that she would give.
61․In re-examination she was taken to certain parts of the notes. Part of those notes were tendered. She was then cross-examined further about the contents of her notes and a text message she had received from CK.
62․FM’s evidence was supported by relatively contemporaneous notes that she took arising out of conversations with BK and CK.
Decision of the magistrate
63․Following the conclusion of the evidence, both parties made written and oral submissions.
64․The magistrate gave his decision and reasons immediately following the conclusion of the final submissions. Those reasons extended over 13 pages of transcript. They are a good example of a detailed, well-structured and extemporaneous decision of a magistrate.
65․The reasons commenced with a statement of the general principles applicable for a criminal trial, a Liberato direction and a Markuleski direction. The magistrate then summarised the evidence of each of the witnesses then gave his assessment of the honesty and reliability of each witness. The summary of the evidence that he gave was detailed and accurate.
66․He found the complainant, BK and CK each to be honest and reliable witnesses and made appropriate comments about aspects of their evidence. He indicated that UT’s evidence was “not particularly controversial” and that she was not challenged in cross‑examination.
67․He noted that the credibility of Justin Abrahams was not challenged and that he found him to be an impressive witness.
68․He made no specific comment about Graeme Lendrum but it is apparent from remarks later in the reasons that he found him to be an honest and reliable witness.
69․In relation to the evidence of Constable Hucker he said that he found that it was “very troubling” that she had chosen to take all of the statements from each of the children in the same room but indicated that did not affect the evidence of complaint made by the complainant to Mr Abrahams and Mr Lendrum several days prior.
70․In relation to the evidence given by the appellant, his Honour indicated that he found it very difficult to accept the evidence that, with the appellant’s hand on his chest, his son had independently walked backwards and banged his head on the cupboard. Further he found the description of how he placed his right hand on his son’s right shoulder “particularly odd”. He found that the “sequence and the way it happened” as described by the appellant “did not sound convincing to me at all”. Contrary to the appellant’s case at trial, he found it to be consistent with the way that the complainant had described being turned and pressed down on the bench. He came to the position that he did not accept the evidence of the appellant.
71․In relation to FM’s evidence he found that she was a reliable witness. However, he said that he needed to take account of her evidence in the context of all of the evidence in the case. In particular, insofar as the evidence recorded statements by CK favourable to her father, the magistrate said that reflected her father having been very supportive of her in the recent holiday in Queensland. He said that FM’s notes did not recount what CK said about the incident in any great detail and did not cause him to doubt the evidence of BK or CK given in court.
72․The magistrate then turned to express his conclusions. They may be summarised as follows:
(a)Looking at the totality of the evidence he was comfortable rejecting the account given by the appellant of what occurred in the kitchen area.
(b)He found the complainant, BK, CK and FM all to be satisfactory witnesses.
(c)He found the evidence of the complaint made the next day to his to teachers to be “compelling evidence” particularly having regard to the “almost coincidental disclosure” that occurred to Mr Abrahams. He found that to be “particularly powerful evidence”.
(d)Although it was suggested that BK’s evidence was tainted to a certain degree, he did not doubt the “fundamental aspects of her evidence”. Similarly, he found the evidence of CK to be consistent with the CCTV footage.
(e)He found that the appellant had grabbed his son by the throat and pushed him against the cupboard. He found the photographic evidence was consistent but not a major part of the evidence. He found the evidence of complaint within 24 hours to the two teachers and the evidence of BK and CK was largely dispositive of the case. He accepted the complainant’s evidence that he had difficulties breathing during the three to five seconds of pressure on his neck.
(f)In relation to the punching charge he said:
In terms of the punching charges I am also satisfied of that beyond reasonable doubt. I take into account the complaint made by [the complainant] to his teachers, his own evidence. And although [BK] did not see the punches, that does not lead me to have a doubt. It seems to me that her position by the sink side of the kitchen would give her a better view of the defendant’s right arm and what it was doing to his throat. And it was clear to me that her focus was on what the defendant was doing with his right hand to his throat.
I don’t necessarily accept the submission of Ms Jones that she surely must have seen that. It seems to me that in the heat of the moment and the focus and the distress that she was experiencing, the fact that she didn’t see the punches does not lead me to have a doubt about whether they occurred. So I find [the punching charge] also proved beyond reasonable doubt.
(g)In relation to the final charge, he accepted the evidence of BK and the complainant beyond reasonable doubt. He said that the description given by BK to FM did not give him a doubt because it may be that FM interpreted what was said in a different way. The fact that FM described BK bending down to 90 degree was consistent with the way the complainant said he had come into contact with the benchtop. For that reason he rejected the defendant’s account of that as well.
Overview of the appellants arguments
73․In summary the submissions made by the appellant were as follows.
74․Ground 1 relates to the punching charge. It was said that BK, who was present during the choking incident, denied that the appellant punched the complainant. That is said to be an exculpatory version of the evidence which could not be excluded beyond reasonable doubt.
75․Ground 2 related to the slamming charge. The submissions sought to draw a distinction between the complainant’s evidence of having his head put against the counter and BK’s evidence that it was “smashed” or “slammed”. Reliance was also placed upon the bending over scenario recorded in the evidence of FM. The submission was that it was not possible to exclude beyond reasonable doubt that although the complainant’s head came into contact with the bench, that it occurred in circumstances where the appellant had not intended that consequence to occur. Having regard to the way the prosecution had run the case, the submission was that the intention to have the head strike the bench was essential for the common assault charge to be made out and that had not been proved beyond reasonable doubt.
76․Ground 3 involved the contention that success on ground 1 in relation to the punching charge should lead to there being a doubt in relation to the choking and the slamming charge. Reliance was placed upon the well-known statement of Spigelman CJ in R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [188]. It was submitted that if there was a reasonable doubt in relation to the punching charge then there was a real possibility that the complainant was either unreliable or had embellished his account of the events more generally. Detailed submissions were then made attacking the credibility or reliability of the complainant and BK.
77․It is worth making some general observations about the structure of these grounds of appeal. By attacking the conclusion reached on the punching charge, the appellant, if successful, then sought to argue that there must be a doubt about the guilt of the appellant on the other charges. Although this is the most favourable approach to take so far as the appellant is concerned, it does not reflect the substance of the case against the appellant or the approach taken by the magistrate.
78․The way in which the evidence unfolded indicated that there were two parts to the overall incident. The first part involved the complainant retreating or being pushed back along the length of the kitchen until he was up against the cupboards near the fridge. The principal focus of the evidence in relation to this was whether the appellant’s hand was on the complainant’s neck or on his chest below the collarbone and whether, as the appellant suggested, there was action on the part of the complainant that gave rise to the possibility of his actions being in self-defence. Any punching or hitting the subject of the punching charge, was wrapped up with, and a subordinate part of, the first interaction. The second part of the incident occurred after the appellant had left the kitchen and then returned. It involved the complainant’s head coming into contact with the bench.
79․It is clear that the magistrate found that the evidence given by the complainant, BK and CK was credible. He found the evidence of complaint given to the teachers was significant evidence strengthening the credibility of the complainant and also that it provided some additional evidence that the events occurred in the manner they did. Having accepted that evidence, rejected the evidence of the defendant and found that the evidence of FM did not undermine the evidence of CK or BK, the magistrate was readily able to be satisfied of the choking charge and the slamming charge. Having accepted beyond reasonable doubt that the choking incident occurred, it was not a significant step to also accept that during that interaction there was a hit or a punch inflicted.
80․Having regard to the nature of the interaction that led to the choking and the case that the prosecution put, the appropriate starting point was that adopted by the magistrate, namely determining the choking charge and then determining the punching charge. Although theoretically a doubt about one aspect of an incident may infect the assessment of the honesty or reliability of the account given by a complainant, the nature of the allegations in this case and the evidence given was such that it made sense to focus on the choking charge and the slamming charge and determine the punching charge in the context of the findings in relation to the choking charge. For these reasons, although the order of the grounds of appeal has a forensic attraction so far as the appellant is concerned, it does not readily fit with the evidence in the case as it was run.
81․That said, it is necessary to determine the appellants arguments in the manner in which they were put.
Ground 1 – The punching charge
82․The prosecution opened on the basis that the complainant would give evidence of being punched “one or two times”. The evidence of the complainant in the police interview was that the appellant “maybe hit me once or twice”. In oral evidence he said that he was hit twice, once in his chest and then on “my arm I think”. The cross-examination recorded at [12] above picked up on his use of the word “maybe” and the witness said, seemingly frankly, “I know he hit me but I’m unsure if it was my chest or arm”. He confirmed that he was certain that he was hit once but not certain of anything more than that.
83․It may be observed that there was nothing unbelievable about such a description of events. It would be understandable that he may not remember being hit or punched in a brief, highly charged incident where the principal event was his father putting his hand around his neck. The transcript reads as though he was being frank about his limited recollection. The photographic evidence included photographs of his arm. That was consistent with him recalling, close to the time of the incident, being struck on the arm.
84․Emphasis is placed by the appellant upon the denial by BK that the appellant had punched the complainant. The relevant portion of the transcript is set out at [20] above. She clearly denied seeing her father punch the complainant. Although this was not explored in re-examination, the cross-examination was such that emphasised “punch” rather than “hit”, a word which has a somewhat different connotation.
85․As with each of the grounds of appeal in this matter, in determining whether the magistrate erred in making the findings of fact that he did it is necessary to recognise and observe the limitations that exist for this court when determining the appeal based upon the transcript of the proceedings below. In Fox v Percy [2003] HCA 22; 214 CLR 118 at [23] the plurality judgment said:
On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations 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. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
(Footnotes omitted)
86․There was no error in the approach taken by the magistrate. He had found both the complainant and BK to be honest witnesses. In that context it was a perfectly acceptable approach to ask whether the apparent difference in the evidence of the complainant and BK led to a reasonable doubt on the punching charge or whether they could be reconciled in a way which did not lead to such a doubt. For that reason, insofar as the terms of the ground of appeal suggest a procedural error in the fact-finding process by “attempting to reconcile” the evidence, no error is disclosed.
87․So far as the substantive outcome reached by the magistrate is concerned, the two reasons advanced by the magistrate were the position that BK had in relation to the incident and what the focus of her attention was. The magistrate reasoned that her position would have led her to have a better view of the appellant’s right arm and what it was doing to the complainant’s throat and further that her focus would have been on what was happening to the complainant’s throat. The magistrate also relied upon the distress and focus of the witness in the heat of the moment.
88․There was nothing wrong with this approach. Both were matters open to be taken into account as part of the magistrate’s assessment of the evidence. The conclusion reached about BK’s position in relation to the incident was a reasonable one. She had been on the sink side of the kitchen and in those circumstances it is likely that she had a better view of the right-hand side of the appellant than the left. Further, accepting her evidence about the location of the appellant’s hand on the complainant’s neck meant that this component of the incident would have dominated her attention. It was open to the magistrate to take into account the highly charged and stressful situation which she was being asked to recall.
89․Further, the conclusion that the complainant’s evidence should be accepted was consistent with his complaint to Mr Abrahams and Mr Lendrum. Although clearly that complaint was of being punched three times in the chest rather than one or two times in the chest or elsewhere, it was consistent with the proposition that he had been hit or punched and inconsistent with the proposition that he had neither been punched nor hit.
90․Some of the submissions made by the appellant were based upon the proposition that there must have been a “swing” of the appellants arm before the punch and a reaction of the complainant’s body to the punch. It was said to be implausible that BK did not notice these things. However, the complainant described being “hit” in his evidence‑in‑chief interview and in oral evidence. That was consistent with what CK said, namely that the complainant mentioned being hit but not punched. The use of the word “hit” does not imply the sort of swinging punch contemplated by the appellant’s submissions.
91․The appellant has not established any error on the part of the magistrate by “attempting to reconcile” the evidence of the complainant and BK. Further, the appellant has not established any error on the part of the magistrate in finding the punching charge proved beyond reasonable doubt.
Ground 2 – The slamming charge
92․The submissions on this ground focused on two points. First reliance was placed upon the evidence of FM that BK said to her “[the complainant], like, bent himself over the bench”. Second, reliance was placed upon different language used by the witnesses about the manner in which the complainant’s head connected with the table.
93․So far as FM’s evidence was concerned, the appellant said that this should give rise to a reasonable doubt. FM’s evidence was evidence derived from notes of conversations with BK and CK after the event. The magistrate attributed the difference in the evidence to the possibility that FM interpreted what she had been told in a different way. There was no error in that approach. It was open to the magistrate to accept the evidence of the complainant and BK as to what had occurred and not to have a reasonable doubt arising from evidence given about what BK subsequently said. Both the complainant and BK had described the incident in some detail. There was clearly a possibility of miscommunication or misunderstanding of what was described to FM having regard to her relationship with the appellant, her relationship with the children and the circumstances in which the conversations were occurring. Further, an incident which involved the complainant simply bending over the bench at a 90 degree angle for no apparent reason would not make sense in the circumstances. Indeed, it was the implausibility of that version of events which was what led the magistrate to reject the evidence of the appellant about it.
94․So far as the appellant placed reliance upon the different language used by the various witnesses to described the incident, the matters relied upon were as follows:
(a)In a police interview the complainant said the appellant had “got my head with his hand and he hit my head on the table”.
(b)In oral evidence-in-chief he said the appellant “pushed my head towards the table and he was holding it there” and that he pressed his head down “quite hard”.
(c)CK said that the complainant had told her “he put my head against the counter”.
(d)BK said “he slammed his head to the bench” and “I did see [the appellant] smashed his head down”.
95․The appellant submitted that apart from the evidence of BK, there emerged a reasonable possibility that was consistent with FM’s account and hence consistent with the appellant’s innocence. That was that even if the appellant had pushed the complainant towards the kitchen bench, there was a real possibility that although the complainant’s head had come into contact with the bench he did not have the “relevant state of mind”. Given that the mental element for a common assault relates to the application of force rather than a result of the action it is not obvious that the argument can be put as one relating to the mental element. However, even assuming that by reason of the manner in which the prosecution case was put it was necessary to establish recklessness or intention in relation to the result of the conduct, namely the head contacting the bench, the ground of appeal is not made out.
96․The conclusion reached by the magistrate was clearly open. The version of events put forward by the appellant was not that he had lacked any intention when pushing the complainant’s head down. Rather it was that he did not do anything to force the complainant down at all. Once that evidence was rejected, the magistrate was left with the evidence of the complainant that the appellant had pressed his head down quite hard and the evidence of BK that he had slammed or smashed it against the counter. Even if the argument now put had been run below (which it was not), it was clearly open to the magistrate to conclude beyond reasonable doubt that the appellant had pushed the complainant down so that his head struck the bench and had intended or been reckless as the result. The magistrate did not err in reaching the conclusion that he did.
Ground 3 – The choking charge
97․Ground 3 relies upon success in relation to the first ground. Having regard to the rejection of the first ground, Ground 3 does not arise.
98․However, even if Ground 1 had been established, having regard to the basis upon which that was argued, Ground 3 would not have been established. For the reasons outlined earlier, the punching charge was the least significant of the three charged components of the events on that day. Even if the inconsistencies between the reports of the number of hits and the denial by BK of observing a punch during the incident led to a conclusion that the magistrate ought to have had a reasonable doubt about the punching charge, that would not have led to a generalised doubt about the truth or reliability of the evidence. That is because the other components of the incident were much more significant and the punching incident was subordinate. While in other cases an acquittal on one charge may, quite reasonably, cast doubt upon the truthfulness or reliability of a complainant’s evidence generally, this is not a case where that would have applied if a verdict of not guilty had been entered on this appeal in relation to the punching charge.
Conclusion
99․None of the grounds of appeal have been made out. The appeal will be dismissed. Section 218(1)(a) of the MC Act contemplates that in those circumstances the convictions will be confirmed.
Order
100․The order of the Court is:
1.The appeal is dismissed and the convictions are confirmed.
| I certify that the preceding one hundred [100] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 7 March 2023 |
0
4
0