Marshall v Marhaba
[2017] ACTMC 23
•29 November 2017
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Citation: | Marshall v Marhaba [2017] ACTMC 23 |
| Hearing Dates: | 17 October 2016; 21 December 2016; 21 August 2017; 30 October 2017 |
| DecisionDate: | 29 November 2017 |
Before: Decision: | Magistrate Morrison See paragraph [66] |
| Catchwords: | CRIMINAL LAW – common assault – whether self-defence raised on the evidence – self-defence not raised – elements of offence made out – Defendant guilty. |
Legislation Cited: | Evidence Act 2011 (ACT) s 60 |
| Parties: | Gavin Marshall (Informant) |
| Representation: | Counsel Solicitors |
| File Number: | CC 10211 of 2015 |
MAGISTRATE MORRISON:
Ms Roubi Marhaba has faced hearing on a single charge of common assault. She and her husband Bernado De Andrade are the owners of a house in Canberra. The house was rented to tenants. The prosecution case is that, in the course of what the Defendant says was a pre-organised house inspection, the Defendant assaulted one of the tenants – Ms Aimee Capper.
The circumstances surrounding the alleged assault are out of the ordinary. The prosecution case is that the Defendant assaulted the Complainant but by way of subterfuge acted as if she was the victim and was being assaulted by the Complainant.
The Defendant appeared without legal representation. I explained the hearing process to her. I explained her obligations in relation to the questioning of witnesses, including about what she was required to put to witnesses in the course of cross examination. In the course of the hearing the Defendant did put certain propositions to witnesses. Sometimes however they were propositions which were not put to relevant other witnesses. I did, at times, assist the Defendant with how to structure her questions in a way to get to the point which I understood she was trying to reach. I did so in an attempt to avoid the hearing running for longer than was necessary. Despite those efforts, four days of hearing time were occupied by the taking of evidence, some considerable portion of which was, in the end result, irrelevant.
The prosecution called nine witnesses. They were:
a. The complainant, Ms Aimee Capper;
b. Ms Rachelle Kelly – described as the Complainant’s former sister-in-law, meaning as I understood it, the former partner of Ms Kelly’s brother;
c. Ms Simone Kelly – again a former sister-in-law;
d. Ms Jenna Kelly – another former sister-in-law;
e. Ms Kalya Magbutay – the daughter of the Complainant;
f. Mr Wayne Capper – the husband of the Complainant;
g. Senior Constable Monique Faccin;
h. Constable Gavin Marshall;
i. Mr Bernado De Andrade – the husband of the Defendant.
Some considerable time was spent in evidence about whether and what arrangements had been made with the Complainant and her husband for the Defendant and her husband to attend the house on 29 August 2015 for the purpose of an inspection and to collect some property. There is conflicting evidence on that subject. There is no suggestion that the existence or otherwise of such an arrangement would convert what was otherwise lawful physical contact into an assault or vice versa. In the end result the arrangements made are not material to my conclusions on the evidence about the alleged assault and there is no need for me to make any formal findings about them.
The Complainant’s evidence about the alleged assault and surrounding circumstances is that she was in the dining room of the house with Rachelle, Simone and Jenna when she saw the Defendant outside the house apparently filming them through a window using her mobile phone. She says Rachelle got up and closed the curtains. She next heard a conversation taking place at the front door, including her daughter saying to the Defendant that she could not come in, but that a short time later the Defendant entered the family room. The Complainant says that she “put herself” on an outdoor veranda outside the family room. She explained that she did so to avoid contact with the Defendant because of upsetting confrontation with her in the past.
She went on to say that the Defendant spoke to her asking if she had taken her medication that day and saying that she was crazy. She described the Defendant’s demeanour as smug and combative. She said that the Defendant was using her camera again apparently filming inside the house. She said she re-entered the family room and stood in the middle of the room telling the Defendant that she had to leave. She said that one of her nephews was crying loudly and that she thinks her sisters-in-law were still in the dining room.
She described how the Defendant was attempting to walk around her to get into the adjacent rumpus room. She said that she had her hands up at shoulder height with the palms facing out. She conceded that she moved to the side to block the Defendant’s path and prevent her from going into the rumpus room.
She went on to say how the Defendant then started barging into her with her body – saying the Defendant’s chest area or side was making contact with her (i.e. the Complainant’s) chest area.
What she says happened next is described in these terms: “And so at this stage she barged me and then kind of fell over or half fell over and went into that silver tray thing and started shaking it about and screaming that I was hitting her.”
As I understood the evidence, the silver tray referred to is in the nature of a wheeled drinks trolley.
The Complainant says that the Defendant repeated words to the effect of “stop” and “stop hitting me”, but that she (i.e. the Complainant) was a distance of 3 or 4 steps away and was not touching her at the time.
Under cross examination she added that the Complainant was at one point also shaking the sliding door adjacent to the trolley and hitting her head against it.
She went on to describe how the Defendant then started slapping her in the chest with her open hands and that she felt one contact with her cheek. She said that she was dumbfounded and confused – saying to the Complainant “I’m not hitting you” and looking towards her sisters-in-law saying “[c]an you see I’m not touching her”.
She went on to say that the Defendant then crouched down and held her hands up in front of her face with her palms out saying again “stop hitting me”. Again the Complainant says that she was not near the Defendant nor making any physical contact with her at that time.
The Complainant says that her husband and the Complainant’s husband then rushed into the room, and the Defendant’s husband said to her “I think it’s time we leave”.
She said that the Defendant was still screaming when her husband entered the room. She said that her sisters-in-law were in an adjoining dining room throughout what she described.
The Complainant went on to say that the Defendant did not immediately leave but rather said that she wasn’t leaving and walked into another room and opened a cupboard and took documents out of it. She said that the Defendant eventually left after further prompting from her husband.
In the course of cross examination a number of propositions were put to the Complainant by the Defendant. First it was put to her that the barging described by the Complainant involved her (i.e. the Complainant) aggressively advancing upon the Defendant and thrusting her abdomen towards the Defendant. The Complainant denied that but conceded that contact had been made as she (i.e. the Complainant) had moved to the side to prevent the Defendant moving into the rumpus room as she had described in her evidence in chief.
It was also put to the Complainant that she had grabbed the Defendant’s hair and pulled her towards the ground. The Complainant denied having done so.
The Complainant said that the contact made by the Defendant left some marks on her and I received into evidence Exhibit P3 comprising some photographs taken of her by police. The photographs show a slight mark to the Complainant’s right cheek and a red mark in the approximate shape of a hand to her chest.
The cross examination of the Complainant did not produce evidence which departed in any material way from what she had said in her evidence in chief.
The testimony of Ms Rachelle Kelly largely supported that of the Complainant. She says she heard the Defendant make comments about the Complainant being crazy and taking medication. She says that she saw the Defendant grab on to what she described as a “bookcase thing” and start to shake it saying “she’s hitting me”. She says the Complainant was not near the Defendant at that time. She said that she then saw the Defendant get up and hit the Complainant in the face area with a slapping motion, she thought several times.
Ms Rachelle Kelly was also cross examined but again did not depart materially from her evidence in chief.
Evidence in the prosecution case was also given by Ms Jenna Kelly and Ms Simone Kelly. Some more detailed observations about their evidence are necessary.
Neither of those witnesses resided in Canberra and the police process of taking statements involved the informant Constable Marshall preparing a document after speaking to each witness by phone.
In the case of Ms Jenna Kelly the document was then sent to NSW police for them to arrange for it to be signed. Constable Marshall said in evidence that Jenna Kelly made some alterations to the typewritten statement before signing it on the first day of the hearing in October 2016. He said he could not recall the exact changes “but there was something in there she had believed had been recorded wrong when I’d taken the statement and she crossed it out and re-wrote and then initialled and signed”.
I permitted the amended statement to be put into evidence on the basis that it was relevant to my assessment of the credibility of the witness. The changes made by Ms Jenna Kelly are apparent on the face of the document. They are changes in relation to what are important aspects of her evidence. One example is the change to paragraph 11 where the following words are deleted: “….. I heard Aimee make a noise that sounded like she had been pushed, I looked up and saw Aimee push Mrs De Andrade away then Aimee put her hands up in the air and backed away from her”.
Under questioning by me the witness said that she had been interviewed by the police by telephone. As I understood her testimony that interview took place well after the incident, and in fact earlier in the month of October 2016 when the first day of the hearing took place. As to the changes she made the witness could say only that she did not recall saying those things to the officer over the telephone.
Constable Marshall said that he prepared Ms Jenna Kelly’s statement after the telephone interview. He said he recalled having been told over the telephone what appeared in the statement and was subsequently deleted. Indeed, the content of the words deleted in paragraph 11 make it highly unlikely that they came from anywhere other than the witness Jenna Kelly during the course of that telephone interview. Her subsequent (at least implied) denial that she had heard and seen what is referred to in the deleted part of the statement gives rise to concerns about her testimony, but I note that in any event she did not say in her statement either before or after alteration or in her oral testimony in Court that she had seen any contact between the Defendant and the Complainant by way of the slaps and hits described by the Complainant.
A concern also arises in relation to the testimony of Ms Simone Kelly. She gave two statements to police and I allowed both into evidence as exhibits D14 and D15, again as being relevant to my assessment of her credibility. The first in time statement (D14) is dated 19 September 2016. The second is dated 14 October 2016 (Ex D15).
There are differences between the two statements which again relate to what are important aspects of the evidence. In particular in the first statement the witness says the following:
a. at paragraph 13 “As far as I could see there was no physical altercation actually taking place at the time however Aimee later showed me a scratch on her face and a red mark on her chest”; and
b. at paragraph 16 “At no time during the incident did I see Aimee or Mrs De Andrade physically touch each other”.
In the second statement the witness says “I went into the kitchen and saw (the Defendant) push or nudge Aimee who then pushed her back, she then started slapping and scratching Aimee with her hands”.
Constable Marshall says that the first statement was taken by telephone and that he sent the document to NSW police to arrange for it to be signed. He said that it was signed and returned to him fairly quickly.
The Constable went on to say that at some time prior to the first day of the hearing he was notified, he thinks by an officer of the Office of the Director of Public Prosecutions, that Ms Simone Kelly wished to make changes to her statement or a further statement. He said that he contacted the witness by telephone and prepared a second statement which was signed by the witness when she attended court for the first day of the hearing in October 2016.
At the time Ms Simone Kelly gave her oral testimony I had not seen her two statements and did not appreciate that the differences were as important as they are. Looking at the transcript of 1 December 2016 it appears that I was under the impression from the cross examination by the Defendant that the difference related only to a question of where the witness was positioned at relevant times. I did ask Ms Simone Kelly some questions about why she had signed two statements. In summary she said this:
a. speaking of the question of whereabouts she was positioned, she said that she didn’t recall saying what was in the first statement;
b. she was half asleep when police came to her house with the first statement and didn’t read it properly;
c. when she read the statement and realised that it wasn’t correct she rang Constable Marshall and arranged to make another statement;
d. she did not have any discussion with any other person about the first statement before deciding to change it.
I eventually received both statements into evidence in the course of the cross examination of Constable Marshall on 21 August 2017.
In his testimony Constable Marshall said that he recalled being told by the witness over the phone the things which appeared in paragraphs 13 and 16 of the statement. The changes to the statement are important changes. Whilst no evidence appears to have been given by the witness about why she made the changes involving paragraphs 13 and 16 the circumstances are such that her in-court testimony must be rejected.
A more difficult question arises about the use to be made of the evidence of her previous representations - that is what was said to Constable Marshall as set out in paragraphs 13 and 16 of Ex D14.
That evidence was admitted as relevant to the credibility of the witness – that is a non-hearsay purpose. Section 60 of the Evidence Act 2011 (ACT) however then exempts that evidence from the application of the hearsay rule. In shorthand parlance, the evidence may be used for all purposes – relevantly in this case as proof of the facts asserted in paragraphs 13 and 16 of Exhibit D14 – that is as proof that Ms Simone Kelly did not witness any physical contact.
I return to this evidence later.
The Defendant did not give evidence in the proceedings. I had explained to her that, if she did not do so, the only evidence to be considered by me was that which had come from the witnesses called by the prosecution.
In her final address the Defendant did not raise self-defence.
Given the disadvantage borne by the Defendant without the benefit of legal representation I have considered whether self-defence is raised on the evidence despite not being referred to in her final address.
There are some parts of the evidence which might arguably give rise to an assertion of self-defence.
The first is that part of the statement of Jenna Kelly (Ex D4), subsequently deleted, which said:
“I heard Aimee make a noise that sounded like she had been pushed, I looked up and saw Aimee push Mrs De Andrade away then Aimee put her hands up in the air and backed away from her”.
The witness said that she could not recall saying that to police but Constable Marshall gave evidence that he had been told that by her over the telephone. The evidence of what was said in that conversation is evidence of the asserted fact – that is that the witness saw the Complainant push the Defendant away and then put her hands in the air and back away.
The second is the testimony of the Defendant’s husband Mr De Andrade when he said that he feared for his safety and that of the Defendant at a point in time after the alleged assault had taken place, and that the Defendant told him that she had been assaulted when they returned to the car.
The Defendant however did not give evidence and did not take part in any recorded interview. As a result there is no evidence whatsoever as to the Defendant’s state of mind or belief at any time or how any conduct by her was influenced by her state of mind or belief. There is no evidence that she was in fear for her safety and there is no evidence upon which any inference could be drawn that there was any reasonable basis for such fear. Indeed the evidence that the Defendant remained at the house after her husband suggested that they leave suggests the contrary.
In the circumstances I am not persuaded that self-defence is raised on the evidence such that the prosecution is required to negative it.
I mention here for the sake of completeness that I have also considered the evidence of the Defendant saying words to the effect of “stop hitting me”. The testimony to that effect was however invariably accompanied by testimony that the Complainant was not in fact hitting the Defendant. In those circumstances that evidence does not raise self-defence.
The Defendant’s final address did not assist me greatly. She pointed, properly, to several discrepancies between the testimony of the witnesses. Some differences between witnesses, and between what a witness says in court and what has been said by the same witness on an earlier occasion are commonplace and an inevitable product of the human condition. They do not necessarily indicate that a witness is being untruthful or that his or her testimony is otherwise unreliable. In each case it is necessary to look at the differences and to analyse them in a common sense way in the context of the other evidence. With the exception of the observations already made about earlier representations by the witnesses Jenna Kelly and Simone Kelly I do not regard other differences in the evidence in the prosecution case as material in the context of the facts in issue in the case.
Some observations about the testimony of the Defendant’s husband Bernardo De Andrade are called for. He did not witness any physical altercation between the Complainant and the Defendant but was called as a witness in the prosecution case because the prosecutor was under an obligation to do so. I was left with the impression however that his sympathies lay with the Defendant and that his answers were tailored in a way which he thought best suited her defence.
I accept the prosecutor’s submissions that, even so, there were some aspects of his evidence which gave general support to the prosecution case.
Mr De Andrade says that when he entered the room he saw his wife crouching down with her hands up. He said that the Complainant was standing over her and said words to the effect of “you’re crazy” and backed away with her hands up.
He said that he felt concerned for his safety and agreed that he tried to encourage the Defendant to leave but that she stayed to collect some property and another person present helped them carry boxes from the house out to the car.
He went on to say that when he and the Defendant got in the car the Defendant said to him “she assaulted me”. He says the Defendant went on to tell him that the Complainant had pushed her with her stomach. He says that he then saw blood on the Defendant’s face and hand, although he could not be certain which hand. He said that he could not see any source of the blood. I asked him whether there was any subsequent conversation with his wife about the source of the blood. His reply was this:
“You know I did, I just can’t remember. I’ve got a feeling she said – I mean it was probably a scratch. I was a little bit surprised because there’d been no indication of assault by either party. None of them had been breathing profusely, none of them seemed to be out of breath, none of them seemed to have their hair out of place so”
What Mr De Andrade said was told to him by the Defendant is to be contrasted with what the Defendant herself had put to the complainant, namely that the Complainant had grabbed her by the hair and pulled her to the ground. In the passage above Mr De Andrade also observes that neither the Complainant nor the Defendant “seemed to have their hair out of place”.
The Complainant gave her testimony is a straightforward and believable fashion. She freely conceded her own conduct in blocking the Defendant from moving through the family room to the rumpus room. Her account of the alleged assault by the Defendant is supported by the testimony of Ms Rachelle Kelly. The evidence of the marks to her body are consistent with what she says took place as is her report to police.
There is evidence of the Defendant complaining to both her husband and to police that she had in fact been the victim of an assault by the Complainant. No evidence is before me as to the account given by her to police. Her account of the assault to her husband is not consistent with what she put to the Complainant as her own version of what had taken place.
I attach no significance to the testimony of Mr De Andrade of having seen blood on his wife’s face and arm. The evidence came somewhat out of the blue at the end of the prosecution case. I have already observed that Mr De Andrade appeared to be tailoring his evidence. No other witness had been asked by the Defendant if they had seen any blood on the Defendant. The Defendant had not put to the Complainant that anything done by the Complainant had caused the Defendant to bleed. There is in any event no evidence as to the source of any blood which may have been seen.
I have already referred to the evidence by way of the testimony of Ms Jenna Kelly and the prior representations Ms Simone Kelly to the effect that, in each case, they did not see any assault by the Defendant on the Complainant.
That evidence is at first glance somewhat surprising given that it is apparent both of them were in relatively close proximity to the Complainant and the Defendant at the relevant time. I have considered it carefully. I note that the Complainant was not asked over what period of time the Defendant was slapping/striking her. The overall tenor of her evidence on that subject suggests that the actual slapping/striking took place unexpectedly, was over quickly, and was immediately followed by the Defendant placing herself on the ground with her hands in the air saying words the effect of – stop hitting me. There is evidence that Ms Jenna Kelly was the mother of the child who was present and who was very upset and crying. She refers to herself as trying to comfort him at the relevant time. In addition there is evidence of a counter and cupboards in the rooms and the three sisters-in-law having started out being seated at a round table in the dining room. The Complainant says that the assault took place in the family room which was on the other side of what was the kitchen, albeit comprising as I understood the evidence a largely open plan arrangement.
The evidence that Ms Jenna Kelly and Ms Simone Kelly did not see that alleged assault must be viewed against the background of those observations.
The Defendant has chosen not to give evidence. I have directed myself that her decision not to do so cannot be used against her. It does not constitute any admission by her, no adverse inferences can be drawn from it and the absence of evidence from her cannot be used to fill gaps in the prosecution evidence or as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
In the end result, and after carefully considering all of the evidence, I accept the testimony of the Complainant and Ms Rachelle Kelly. I find that the Defendant struck the Complainant in the manner described in her testimony. I have concluded that self-defence is not raised on the evidence. The evidence establishes beyond reasonable doubt the elements of the offence necessary to find the offence of common assault proved and I do so.
I certify that the preceding sixty six (66) paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate P J Morrison.
Associate: Matthew Bautz
Date: 29 November 2017
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