Loft v Douglas
[2020] ACTMC 7
•19 May 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Loft v Douglas |
Citation: | [2020] ACTMC 7 |
Hearing Date(s): | 29 November 2019 |
DecisionDate: | 19 May 2020 |
Before: | Special Magistrate Hunter OAM |
Decision: | See [114]–[145] |
Catchwords: | CRIMINAL LAW – PARTICULAR OFFENCES – EVIDENCE – Common assault – Chokes, suffocates, strangles another person |
Legislation Cited: | Crimes Act 1900 s.27 and s.28 |
Cases Cited: | R v Green (No 3) [2019] ACTSC 96 Browne v Dunn (1893) 6 R 6 |
Parties: | Maddison Loft (Informant) Michael Douglas (Defendant) |
Representation: | Counsel M Wall (Informant) K Archer (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) Boxall Legal (Defendant) | |
File Number(s): | CC19/7028 CC19/6938 |
SPECIAL MAGISTRATE HUNTER OAM:
The defendant, Michael Douglas, has been charged with:
(a) CC 2019/7028 intentionally and unlawfully choked, suffocated or strangled Ms Ciasico on 19 June 2019, particularised as a choke;
(b) CC 2019/6938 common assault against Ms Ciasico on 19 June 2019.
When the matter came on for hearing the legislation had changed regarding that offence. R v Green had some application and the issue of retrospectivity came into focus.
Prosecution opening
The prosecution alleged that the defendant and Ms Ciasico had been in a sexual relationship for approximately 12 months. On 19 June 2019 Ms Ciasico arrived at the defendant’s house at 15 Belfield Circuit Florey. The two went to Belconnen Mall for shopping.
They returned at approximately 5.40pm. At the time the defendant’s housemate, Stanley Duncan was there. The defendant went to his bedroom with Ms Ciasico, they watched TV and had sex. At 6.15pm in the bedroom they argued about their relationship and the defendant told Ms Ciasico to leave.
Ms Ciasico did not want to leave and whilst still on the bed the defendant grabbed her neck with his right arm and applied pressure to her neck. The prosecutor particularised the action and grabbing in a locking motion explained as a choke hold. The defendant then grabbed her arm and dragged her out of the room.
Ms Ciasico then drove away in her car and called 000. Ms Ciasico was taken by ambulance to hospital and subsequently spoke with Constables Dolley and Loft. The Prosecutor outlined that he expected them to report that they observed bruising to her neck. The Prosecutor alleges that bruising is as a result of the choke hold applied by the Defendant.
The prosecutor advised that a medical report was prepared which reflected bruising in that area. The defendant denied applying any force to Ms Ciasico, or grabbing her arm, however reportedly made some admissions.
The prosecutor, by consent, tendered the Ambulance medical records, the Emergency Department medical records and photographs taken at the emergency room. I read those documents prior to Defence opening.
Defence opening
The defendant admitted that he was in ‘a form of relationship’ with Ms Ciasico. Defence conceded that they both had spent time together that afternoon. The defence conceded that an argument occurred between the two in the bedroom. Defence conceded that Ms Ciasico left the house, walking close to Mr Duncan as she did so.
Defence conceded that she drove somewhere and then called 000. This resulted in an ambulance attending. Defence also conceded the ambulance officers examined Ms Ciasico as did someone from the emergency room, although that person is unknown. Photographs were taken at the hospital.
Defence suggested that no medical evidence would be called, and the prosecution would rely on the photographs to explain the bruising to neck as described.
Defence counsel suggested that the colour of the bruising red dot (petechial haemorrhage) with a green aspect to it may have been pre-existing. Dr Collins, a Forensic Pathologist, was to give evidence about that. Defence counsel also advised the Court that no medical evidence would be called from the Ambulance officers or the doctor who examined Ms Ciasico.
Defence counsel said his client denies that any physical act occurred, it was all verbal.
Mary Ciasico
Ms Ciasico gave evidence from a remote witness room as she is entitled to do. Ms Ciasico participated in an evidence in chief interview. That interview was played before the court. A transcript was provided as well.
In summary Ms Ciasico said;
(a) Both she and the defendant had made arrangements via text throughout the day to meet up. She arrived at 4pm, they had dinner, then sex and were chilling, watching TV when he out of the blue asked her to leave. The defendant told her that he believed she had sex with someone else. Ms Ciasico denied that and told him she wanted to stay. He insisted she leave. They were still in bed when he grabbed “first her hand and then her neck, he just grabbed by my neck and I was going to stand up and then he grabbed my arm again and just like drove me, shove me out of the room.”[1]
[1] T2
(b) Ms Ciasico was shaking, got into her car and thought to go to her friend in Downer. Ms Ciasico said she called and left a message for her but there was no reply. Her friend was not there, so she cried a lot and then called 000.
(c) Ms Ciasico said she was very upset and scared and did not deserve this happening to her. Ms Ciasico said she did not give him permission to touch her at all in that way. Ms Ciasico said her neck was painful, as was her arm where he grabbed her.
(d) Ms Ciasico said that the defendant wanted her to leave and forced her to leave. In the last 3 months he has been verbally abusive toward her. The police officer holding the interview advised her that ‘there was a little bit of redness’[2]
Evidence in chief
[2] T4
Ms Ciasico clarified that she was sitting on the edge of the bed and he was standing telling her to get out, she got her clothes and left as he was walking behind her.
Ms Ciasico identified the photographs as pictures of her arm and neck. Ms Ciasico also said that she contacted Domestic Violence service first and they advised her to contact police.
In cross examination Ms Ciasico acknowledged that the she was hopeful the relationship would be a more permanent one.
It was suggested to Ms Ciasico that she had told the defendant that she wanted to shop that afternoon for household good for her new house. It transpired that she had not purchased a house. It also transpired that she always went to his house to see him, but he never went to hers.
Ms Ciasico agreed that both she and the defendant went to his room, watched TV and had sex, Ms Ciasico denied that she was texting someone and said that it was the defendant who was. Ms Ciasico denied using her phone at all during that time. Ms Ciasico denied that she told him she wanted more from the relationship and spoke of marriage.
Ms Ciasico described the incident as she sitting to the left hand side edge of the bed, he was standing in front of her and he pulled her first by the arm and said, “you should go” and tried to pull her out of the room. She said she was whinging saying “what’s the problem” and she remained on the bed at that point. The defendant then used his forearm to pull her from the bed by the neck, touching her windpipe. Ms Ciasico also said that he first used his hand to grab her neck. Then Ms Ciasico said that he used his forearm to grab her neck.
Ms Ciasico said that this occurred whilst she was still sitting on the edge of the bed, it took less than 10 seconds, perhaps 5-6 seconds. Ms Ciasico stated that she stood up and he released his grip, she took her clothes and moved away from him. At the time he just looked at her and she could not recall him saying anything.
Ms Ciasico then drove to Dickson to her friend’s house. She was not at home, so Ms Ciasico drove to Downer. Ms Ciasico confirmed that she spoke to DVCS and the police and waited in her car for the ambulance. Her friend did not get back to her until later that evening.
It was suggested that she told the ambulance officer that she was grabbed around the neck for about a minute and that the neck incident happened before the pulling by the arm. Ms Ciasico said the pulling of the arm happened first and the grabbing by the neck for a minute she could not say but she may have told them that.
Ms Ciasico said that she may have been messed up when she told the Officers the neck incident happened first. Ms Ciasico said she told the ambulance officer that her left arm hurt. Ms Ciasico said she was never examined by a doctor because she left as she was tired and had waited a long time.
Ms Ciasico described the pain as being bicep down to forearm and her neck was painful on the left hand side. Ms Ciasico said she told the ambulance officers about the pain in her neck.
Ms Ciasico denied that the defendant touched her neck during the earlier sexual intercourse but accepted that he was usually rough when having sex.
Ms Ciasico identified red spots on her neck in the photograph but said that there was no bruising on her neck. Ms Ciasico identified the red spots on the photographs as being caused by the defendant grabbing her.
In relation to the bruising Ms Ciasico could not recall whether the bruising on her neck was there prior to the evening in question.
It was suggested to Ms Ciasico that she sent a text message to the defendant at 7.16pm, however Ms Ciasico could not recall that. Ms Ciasico was shown text messages in relation to a TV and about shopping for things for her house.
Ms Ciasico said that she had paid a deposit for a house in Coombs without citing a contract. The suggestion made was that she made this story up to act as a ruse to convince the defendant she had placed a deposit on the house.
Ms Ciasico agreed that she had discussed with the defendant about buying a house together. During the argument on 19 June 2019, she could not recall whether they discussed the house but agreed that there was discussion about the house during that period and that she was going to get the house either with him or without.
Ms Ciasico denied that she ever called him after the 19 June incident, nor drove past his home. Ms Ciasico denied that police contacted her about that allegation.
Stanley Duncan
Mr Duncan gave evidence that he has lived at his residence for 34 years.
On the 19th of June 2019 he was watching the news on TV as he always does at that time. Mr Duncan recalled that he observed the complainant walk out and observed that she did not look happy. Mr Duncan then observed the defendant walk the complainant to the front door shut it and walk back in.
Mr Duncan said that he had heard nothing peculiar that evening, but he did have the TV operating. Mr Duncan advised that he recently had a hearing check and was advised that his hearing was good.
In cross examination Mr Duncan was shown some photographs which he identified as the front door (Photo 1); the defendants bedroom (Photo 2) , a view described as looking into the defendants bedroom from the TV room (Photo 3); a view showing his chair, the coffee table and the TV (Photo 4); and a view taken from the front door (Photo 5).
Steven Dolley – Constable of police
Constable Dolley advised the court that he was dispatched to a job involving the complainant in her car. Police were on their way to see her when they were advised that she was being taken to The Canberra Hospital (TCH) by ambulance.
Constable Dolley described his observations when he met the complainant at the TCH. He observed that she was “pretty quiet, head down, she seemed a little teary-eyed and upset.” Constable Dolley also observed greenish bruised colour on her neck as well as some red marks.
Constable Dolley also conducted a Family Violence Evidence in Chief (FVIC) interview with the complainant.
Later that evening Constable Dolley arrested the defendant and escorted him to the watch house. The defendant participated in a recorded interview with police that evening.
In cross examination Constable Dolley identified the red marks on the photographs taken (Exhibit P3). Constable Dolley confirmed that the bruising he referred to in his statement was on the right-hand side of her neck and had more of a “greeny” tinge.
Madison Loft
Constable Loft was on duty with Constable Dolley and attended TCH. Constable Loft observed the complainant as being quiet upset and distressed, clutching her handbag and was crying. Initially she found it difficult to speak but opened up to Constable Loft.
Constable Loft observed some red spots and greenish colour on the right side of her neck. The constable identified the area in photo 4 of exhibit P3.
Constable Loft made a note of a conversation with the defendant when he was arrested. The defendant said “bullshit, she just grabbed her stuff and left. Can I get her arrested for making false statements?”
The recorded interview was played in Court and exhibited in the proceedings.
Cross examination
Constable Loft said the complainant was being triaged as they arrived, and she did not speak to her in relation to any medical treatment. Constable Loft was unaware that the complainant left prior to seeing a doctor.
Constable Loft said that despite being told of messages on the defendant’s phone she did not examine them as it was her view they were irrelevant to the case. Ultimately the officer could not explain why messages even from the day in question were not looked at. Constable Loft did say that she advised the defendant to make a statement about the messages if he wished.
In questions from me, the officer indicated that she had not turned her mind to the requirement of calling a forensic medical officer to examine the complainant despite this being an allegation of choking. Constable Loft did say that because the bruising was obvious she had assumed a doctor would examine her and was surprised that she was not examined.
Recorded interview with the defendant
The defendant described receiving a text message from the complainant and him then meeting up with her to go shopping at the Belconnen mall. It was his view that the complainant wanted to get some goods because she was buying a house. She bought some bed sheets and pillows and the like. They then went out to dinner and had some dumplings. They both then went back to his residence at Belfield Crescent in Flory.
The pair were watching television and they ended up having sexual intercourse. At some point the complainant was on her phone texting someone. An argument ensued about them getting back together. They discussed being with other people and the defendant said to her that it was not going to work and that he couldn’t cope with the relationship.
The defendant said that during the conversation she said that if she wasn’t in a relationship with him, she would have to go back home to the Philippines. Further argument ensued and she told him that he didn’t want to be with her because he had someone else and the complainant stormed out of the door.
The defendant said that he followed her out of the house and his flatmate was sitting on a chair when she walked through the house. The complainant asked for her bottle of Jack Daniels and he gave it to her. It was at that point that the defendant told her he was blocking her phone number and he wanted nothing further to do with her. The complainant said to him, have a nice life and “you’re going to hell”.
The defendant suggested that at one point the complainant was stalking him and he got some photographs of her doing so when he went out for a cigarette.
The defendant denied laying any hands on the complainant or touching her. The defendant also advised the police that she had tried to blackmail him by stealing his licence and he had reported this to the Belconnen police.
The defendant also said that she had been caught out lying because she had told police she didn’t have his licence when in fact she did and had sent him a photo of it. The defendant stated that the police officer had suggested to him that he should “play it cool” and ask politely for the licence to be returned. The defendant said that the complainant threw the licence in the garden and told him that it was there.
The defendant again denied that he grabbed the complainant or used any force but did explain that he used his forearm to stop her from hitting him in the face, but he did not touch her in any other way.
The defendant was played the FVIC of the complainant and said he was devastated that she would say that he grabbed her around the throat. The defendant replied that if that was the case wouldn’t she let out a big scream or say don’t do it or something of that nature. The defendant also pointed out that it would be likely that if she was in fear, she would have spoken to his housemate who was sitting in the chair watching TV.
In relation to the marks on her neck the defendant opined that it was self-inflicted because she’s done it before and gave an example of her getting a friend to bite her on the face and say that her ex-partner had done it.
The defendant offered to show text messages that she had sent to him with threats that she is going to kill herself and the like. It was clear the police officers viewed the text messages as unrelated to the 19 June incident because they were not pressed further.
The defendant also denied that he forced her to leave other than telling her to get out and it was at that point that she got her elbow and went to “wail at me”
The explanation given by the defendant as to why the complainant would say these things was that in his view, she was trying to get back at him because he did not want to buy a house with her.
Dr Byron Collins
Dr Collins prepared a report in relation to the injuries seen on the complainant’s neck. I note that Dr Collins was critical of the lack of medical observation or examination by a suitably qualified forensic medical officer of the stated injuries (red dots and discolouration). [I must say I agree with his criticism.] my emphasis.
Dr Collins also had difficulty examining the area of concern because of the poor quality of photographs. [I agree with that criticism as well.]
Dr Collins opined that there appeared to be 3 discrete areas of reddish-brown dots which could be petechial haemorrhages, however their aetiology was uncertain. Dr Collins also opined that if the bruising seen was of a slight green discolouration, they could not have been caused only a few hours before.
Further, Dr Collins opined that the evidence of the (choke hold) causing the petechial haemorrhages found on the neck was highly unlikely, unless they were pre-existing and were damaged in the manoeuvre.
It was his opinion that the evidence was insufficient to support the scenario put forward and noted there were no definite identifiable injuries such as bruising, showers of petechial haemorrhages, swelling, abrasions of laryngeal complex damage. Dr Collins clarified however that these injuries are not necessarily seen in neck compression.
Dr Collins gave evidence in relation to what petechial haemorrhages are and described them as;
Pinpoint haemorrhages which occur from rupture of usually capillaries under pressure, and they commonly occur when there has been significant neck compression, or chest compression, because of the raised intravascular pressure which ruptures the tiny blood vessel and one gets tiny pinpoint excavation of blood from the blood vessel walls.
Dr Collins could not say how much pressure was required to cause these haemorrhages but thought that it would be most unusual for a solitary petechial haemorrhage to occur in neck or chest compression or in other circumstances when they also arise. Having said that, he was unable to confirm positively that they were petechial haemorrhages.
Dr Collins opined that dating bruises was an extremely difficult exercise particularly as he was limited to observing skin discolouration only. The classic sequence of events described in the literature is that bruises change from earlier periods of reddish purple, over the next couple of days to bluish yellow and green, and then brown followed by a period of fading. That timeframe is also variable. The only timeframe pathologists are content to base their opinions on is the existence of a yellow margin around bruising, which usually indicates that it is at least 18 hours old. However, lack of a yellow margin does not mean to say the bruising is not over 18 hours old. Therefore, it is difficult to date bruises on appearance only.
In respect of the green coloured area of bruising, Dr Collins opined that he had never seen a skin injury in the early phases being green. However, one may see old bruises as being green in colour. In terms of determining the age of the bruising, whilst accepting that it is difficult, it was his view that it was an old bruise, at least some days in age.
Dr Collins was asked to give an opinion as to the force the defendant may have used in the way as described by the witness. Dr Collins opined that he couldn’t totally exclude the action as a mechanism, particularly if there was an aspect to the mechanism such as a watch band but it is most unlikely to have caused those marks. Dr Collins provided some reasoning to this opinion, namely that on the scenario given, there was a general understanding that even as pressure was exerted, it would be used to the front of the throat or to the sides and that is not a mechanism which commonly produce this sort of injury.
In cross examination
Dr Collins advised that he referred to the material he was given but particularly relied on the photographs and the hospital records.
Dr Collins opined that the quality of the photographs was less than appropriate for an expert to properly assess the mechanisms of causation of injury and that they should be in the form of proper colour and balance and as provided, the images were not. Dr Collins also opined that there was no measuring scale close to the purported area of injury and so assessing the size of the injury would be difficult.
Dr Collins agreed that there are different types of bruising and haemorrhages are a type of bruising. Dr Collins also agreed that the size of the bruise does not always reflect the intensity of force used to inflict it.
Dr Collins agreed that a small bruise does not necessarily mean that a low level of intensity caused it.
Dr Collins also again explained that a properly qualified medical practitioner or qualified forensic physician should have examined the complainant and that proper forensic photographs should have been taken.
Dr Collins conceded that the application of force using the crook of the elbow when manoeuvring what could be described as a chokehold could cause the injuries, however it was his view that whilst it could not be excluded it was unlikely as a cause.
Defence submissions
Defence counsel submitted that the two offences arose out of the same alleged conduct. The prosecution particularised the choke as an application of pressure to the neck using what is understood colloquially as a ‘chokehold’. There was no suggestion that the pressure caused the complainant to be rendered insensible or unconsciousness.
Defence counsel submitted that I would not be able to find the defendant guilty because the evidence ultimately relied on the complainant’s evidence to prove the elements of the offence. Defence counsel submitted that she was an unimpressive witness who lacked responsiveness to questions, was inconsistent with her evidence especially as between her Evidence in Chief interview and evidence in Court. Further, defence submitted that the ‘medical evidence did not permit that deficit to be made good’ and it was a further impediment to the prosecution proving its case.
Defence counsel set out the legislation section 27 and section 28 of the Crimes Act 1900 both at present and when the offence was alleged to have been committed on 19 June 2019.
If the present law applies the prosecution would only need to show that there was an application of force to the neck. If the law as it stood at the time of the offence applies, then the prosecution would need to prove that the complainant was rendered insensible or was unconscious as a result of the application of force.
Defence counsel submits that regardless of which legislation applies the prosecution cannot prove its case that the defendant applied any force to the complainant as particularised.
Defence counsel set out the relevant evidence of the prosecution case, summarised as:
(a)The defendant and the complainant were in an off and on relationship. They made arrangements to meet up on 19 June 2019 and travelled to the Belconnen Mall, went shopping, had dinner and returned to the defendant’s home. The pair watched Netflix, had sexual intercourse and afterwards an argument arose.
(b)That argument was in relation to infidelity, where each accused the other of seeing other people. Defence counsel set out the passage in the FVIC where the complainant identified the conduct said to have occurred.
Defence counsel pointed out the different versions as to what the complainant said happened as being:
(a)A hand in front of the neck.
(b)A grabbing of the neck demonstrating his forearm but not to the front of the neck.
(c)The complainant demonstrated where he grabbed her as the neck area.
Defence counsel submitted that there was no bruising, or if there was it had a green tinge.
At the hearing, in the examination in chief, the complainant indicated that she was sitting on the edge of the bed and he was standing up and looking at her. The complainant then said she got dressed and walked out of the room with him walking her out. That was inconsistent with her FVIC where she said she was shoved out of the room. [I note I refused to grant leave to cross examine on that issue] my emphasis
Defence counsel noted that there was no precision in her evidence about the actual acts which constitute the offence.
Defence counsel submitted that the cross examination demonstrates the general unreliability of the complaint setting out passages of transcript and highlighting several passages.
Some of those were highlighted as:
(a)Her evasiveness as to how the grabbing occurred.
(b)Whether the defendant grabbed her throat whilst front on or whether a chokehold was performed.
(c)If it was front on that would have been difficult to use his forearm.
(d)Her description of leaving the room in evidence in court was in stark contradiction to her description in the FVIC.
(e)The inconsistent account provided to the ambulance officers as to the length of time the choke took and the pulling of the arm.
(f)The inconsistency about where she felt the pain.
The record of the ambulance officers as to their examination of the complainant disclosed that they were unsure as to whether the ‘? petechial haemorrhages’ occurred that evening or were pre-existing. That suggests that the complainant did not disclose to them when those occurred, yet in her evidence in cross examination she said that she told them it was “tonight”. This does not accord with the notes taken and the ambulance officers were not called, so this matter remains unresolved.
Defence counsel submitted that the nursing notes disclose observations of ‘obvious red mark/ bruising to neck’. The complainant left the hospital prior to any medical examination of those marks.
Defence counsel submitted that the uncontested evidence of Dr Collins was that the dots could be petechial haemorrhages or could have been damaged naevi or an artefact. Regardless their aetiology was unknown.
In relation to the bruising it was submitted that Dr Collins opined that if the slight green discolouration of the neck was a bruise it was not consistent with having occurred some hours afterwards. Further the described manoeuvre of a “chokehold” was unlikely to be the cause.
Defence counsel submitted the totality of the evidence in relation to the marks/ bruising on the neck could not support a finding that the defendant choked the complainant.
In relation to the argument and text messages sent between the two prior to the incident defence submitted that was demonstrative of her motive to lie about what occurred on the 19th of June. Further, the complainant denied contacting the defendant after 19 June. Her lack of frankness should be taken into account.
In relation to the evidence of Mr Duncan it was submitted that the complainant did not disclose to him that she had been assaulted, which could be used to assess her credit as to what happened.
Defence counsel submitted that the interview with police demonstrates that the defendant immediately denied that he had done anything wrong. That, coupled with the inconsistencies with the complainant’s version should give weight to the denials and version given by the defendant as it rang truer than the complainant’s version.
Defence counsel submitted that the prosecution case relies almost entirely on the complainant’s version of events. Given the factors outlined (and summarised above) the court could not find beyond a reasonable doubt the offences had been proven.
Defence counsel made submissions as to retrospectivity, setting out the legislation, explanatory memorandum and the authorities which pertain to whether an act can be said to be retrospective. For the reasons I will give later I do not need to consider this issue.
Prosecution submissions
The prosecutor conceded in submissions that the choking charge could not be made out. Prosecuting counsel made submissions that the unlawful application of force to the neck could be made out to the requisite standard.
Counsel set out the passages upon which he relied for that submission as to the evidence from the complainant that “he just grabbed my neck”, … “he’s trying to grab like grab my neck” and so on.
Counsel submitted that the evidence of complaint, being the 000 call and what she told the ambulance officers has a dual purpose, one as to truth and one as to credit.
Counsel submitted that the complainant’s evidence ‘generally’ was consistent with the evidence given in court and in the FVIC. That complaint was that there was an incident and there was contact to the neck region.
Counsel conceded that the evidence of Dr Collins was not sufficiently probative as to the choking but was consistent as to contact to the neck.
Prosecuting counsel suggested that defence counsel was in error in referring to his submission about lack of complaint in relation to the complainant not telling Mr Duncan, suggesting it was ill informed.
Prosecuting counsel also submitted that defence failed to Browne v Dunn the complainant, so as to suggest that the defendant did not grab her around the neck or that she made this up because of dissatisfaction as to the relationship or that the defendant raised his forearm in defence of being hit by the complainant.
Prosecuting counsel referred to MWJ v The Queen (2005) 80 ALJR 329 in relation to that matter.
Finally, prosecuting counsel submitted that there was immediate complaint, her account was not directly challenged, and there was some evidence of injury and that these factors supported the allegations, therefore the offence could be proven.
Defence submissions in reply.
Defence Counsel rightly pointed out that the prosecution particularised the choke and assault as the same. That is the use of force, described as a chokehold upon the complainant. [Defence counsel set out the passage of transcript reflecting the position of the Prosecution particularising what they meant by choke. I have reflected on that passage and the meaning is clear in my view. That is that the choke involved the arm around the throat or a choke hold] my emphasis.
Defence Counsel submitted that I should not allow the prosecution to depart from the particulars they outlined as the behaviour relied upon to prove the offence is made out.
Defence Counsel further submitted that it is not clear just what the prosecution relied upon when he submitted that the behaviour is capable of proving the elements of the offence of assault.
Defence Counsel set out the rule in Browne V Dunn and as set out in MWJ v R [2005] HCA 74 at [18] and at [40-41] Defence Counsel submitted the Court was critical of the way the rule had been applied to a criminal case. Defence Counsel submitted that the Prosecution sought to use the (so called failure to cross examine on a particular matter), in the same way as was described in MWJ v R and the prosecutor had to remedy that position. Defence counsel pointed out that the onus does not shift from the Prosecutor to the Defendant.
Decision
The difficulty I face in this matter is with the Prosecution submissions. The Prosecutor conceded that the choking offence is not made out and does not seek to rely upon that charge. Therefore, that charge is not made out and I dismiss it.
The Prosecutor then relied upon the behaviour said to have constituted the choking offence for the charge of assault.
I note that the original charge for hearing was an assault, and then the Prosecutor preferred a fresh offence of choke, render insensible. I charged the defendant with that charge on the day set down for hearing and he entered a plea of not guilty.
It is clear from the passage set out by Defence counsel that the Prosecutor particularised the behaviour relied upon by the Prosecutor as choking. I am unsure just what it is that the Prosecution now relies upon for the offence of assault to be made out. I have very carefully read the Prosecutors submissions as to how I should consider the evidence. I have also re-read the transcript of the opening and how the prosecutor put his case.
The Prosecutor suggested that the assault was an alternate charge to the choking (which often happens). The Prosecutor opened that same behaviour constitutes the assault charge. Unfortunately, the Prosecutor did not set out in his submissions why the choke charge could not be made out. I am in limbo as to why that is so, therefore I am unsure as to which behaviour was not made out.
It appears from Prosecution submissions that contact with the neck is sufficient to make out the charge. I note that an unlawful application of force upon another without their consent is sufficient to make out a charge of assault.
I assume that is the basis for the Prosecution submissions, although I note that the Prosecutor also seemed to rely on attempt as well. Again, I am at a loss as to know how he makes out the charge. What was the basis of “an attempt,” was it that he ‘attempted to apply force’?
I note the Prosecutor set out some passages upon which he relies. I will assume for the purposes of this matter those are the behaviours he relies upon.
This is a word on word matter. That is not unusual. I note there was the evidence given by the complainant. Having reviewed the evidence and my notes taken at the time she gave evidence, I formed the view that she appeared to be an evasive witness, particularly when questioned as to her motive to be untruthful. I also found some of her evidence internally inconsistent.
There was also a 000 call which is often capable of corroboration of a version given.
There was medical evidence in the form of an ambulance assessment report and hospital notes from a triage process. I found the notes to be of little use. Clearly the ambulance officers noted some areas of discolouration they described as “? petechial haemorrhages” as well as an area of greenish colour. The triage nurse also noted some obvious red marking/bruising to the neck.
I note some less than optimal photographs were taken of Ms Ciasico by police. It is unfortunate that Ms Ciasico did not remain in the hospital to be properly examined by either a medical practitioner or a forensic medical practitioner. It is also unfortunate that police did not ensure that she was medically examined that evening. It is clear from the evidence that police did not check up on her the next day or make any inquiries as to what medical examination results were available.
In my view allegations of choking are very serious and police should ensure that they have medical evidence available to back up those allegations.
Dr Collins gave evidence before me and, rightly in my view, lamented the paucity of proper colour photographs of the areas, together with no medical examination report. This made his expert opinion difficult to determine without better material upon which to base it.
However, it was his view, given the limited material he had to rely upon, that the red marks could have been petechial and the greenish area, bruising. Dr Collins indicated that the greenish area could not have been caused just hours before the photographs were taken therefore that bruising is not consistent with the evidence given by Ms Ciasico.
Dr Collins could not, without more, identify the aetiology of the red marks either, and if that area were petechial that was not consistent with how the complainant alleges she was grabbed.
Ms Ciasico’s evidence
I note that Ms Ciasico demonstrated a number of ways the defendant used his arm as a round house type movement, going over the top of her head as well as grabbing her neck from the front, that is, she was sitting on the edge of the bed and he was standing in front of her.[3] I found it incredible that in that scenario he could use the crook of his elbow/ arm to choke Ms Ciasico.
[3] T17.20
I also note that Ms Ciasico gave evidence that she only thought that he applied pressure to her neck [4] then when pressed said that he did grab her neck. Then Ms Ciasico said that he grabbed her throat with his hands.
[4] T30.30
I also note that Ms Ciasico said that the greenish area was not there after the night of the incident.
I formed the view that Ms Ciasico’s evidence was less than reliable in relation to what happened that evening.
I also note that Mr Douglas was in the house in close proximity to the defendant’s bedroom yet heard nothing despite his hearing being very good.
Defence evidence
The defendant gave a recorded interview with police. It was clear from the outset that the defendant denied that he choked or applied pressure to her neck. Although this material became evidence it was not given under oath, however I note that he was warned by the police officer about being truthful.
Warning
I must warn myself that the Defendant does not have to prove anything in this case. The Defendant always remains innocent until proven otherwise. It is for the prosecution to prove each element of the offence beyond reasonable doubt. The onus of proof always falls upon the prosecution to prove its case. I have given myself that warning. See Parkinson v Alexander [2017] ACTSC 201 at 84.
Even if I rejected the evidence of the Defendant, I must be satisfied on the evidence given in the proceeding that the Prosecution has proven the elements of the offence beyond a reasonable doubt.
Having considered all of the evidence as a whole I am not satisfied that the Prosecution has proven the elements of assault or attempted assault beyond a reasonable doubt.
I find that the evidence given by Ms Ciasico was disjointed, at times implausible and was not corroborated by the evidence.
Ms Ciasico’s evidence was implausible given how she described what happened. As she was sitting, he was in front of her, yet the Defendant was able to place the crook of his arm around her throat. I am also not convinced that he grabbed her throat (however fleeting she said it was).
Another element of inconsistency was when in relation to her description that the Defendant ‘shoved her out’ (of the bedroom) she recanted and said that he ‘walked her out’. Walking her out is consistent with the evidence of both the Defendant and Mr Douglas.
Even if I was satisfied as to her account, I would need to reject the Defendant’s evidence of denial. I note that the Defendant suggested a motive for her to lie. That motive was about the house, wanting to be in a relationship with him and the like. I also note that Ms Ciasico was rather reluctant to recognise or accept that motive, despite evidence to the contrary.
Having rejected the evidence, particularly as to how the alleged application (or attempt) application of force was made I do not need to consider the Interview with the Defendant. However, I very carefully scrutinised the Defendant’s version and found his version credible.
I find the Prosecution has failed to prove beyond a reasonable doubt that the defendant applied force or attempted to apply force to Ms Ciasico’s neck on 19 June 2019.
Both charges are dismissed.
| I certify that the preceding one hundred and forty-five [145] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Special Magistrate Hunter OAM. Associate: Kefilina Faupula Date: 19/05/2020 |
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