McKinnon v The Queen

[2019] NSWDC 432

District Court

New South Wales

Medium Neutral Citation:	McKinnon v R [2019] NSWDC 432
Hearing dates:	13 August 2019
Decision date:	23 August 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Appeal Dismissed
Catchwords:	Assault; domestic violence related offences
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007
Cases Cited:	AG v Director of Public Prosecutions (NSW) [2015] NSWCA 215 Charara v R [2006] NSWCCA 244 R v Markuleski (2001) 52 NSWLR 82 R v Murray (1987) 11 NSWLR 12
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) Jason McKinnon (Appellant)
Representation:	Counsel: A Webb (Crown) S James (Appellant)   Solicitors:
File Number(s):	18/267996
Publication restriction:	Nil

Judgment on appeal

1. The appellant appeals against his conviction on the following four counts:

1. H70820251 – Sequence 2 – Assault occasioning actual bodily harm – domestic violence related. This is an offence pursuant to s 59(1) of the Crimes Act 1900.

2. H70820251 – Sequence 3 – Common assault – domestic violence related. This is an offence pursuant to s 61 of the Crimes Act 1900.

3. H70820251 – Sequence 4 – Stalk/intimidate – domestic violence offence. This is an offence pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

4. H70820251 – Sequence 5 – Intentionally or recklessly damage property – domestic violence related. This is an offence pursuant to s 195(1)(a) of the Crimes Act 1900.

2. The appellant was convicted on 23 April 2019 at the Coffs Harbour Local Court after a hearing that took place over three days on 31 October 2018, 12 December 2018, and 14 March 2019.

3. The appeal is by way of a re-hearing based on the transcript of evidence before the learned Magistrate, and the exhibits that were before his Honour. In determining the appeal, I am to apply the principles governing appeals from a judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence, recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court – see Charara v R [2006] NSWCCA 244 per Mason P at [18].

4. I have also had regard to the exhibits tendered in the Local Court which form part of the Crown bundle on the appeal (Ex A). I have also viewed in open court a DVEC of the complainant’s statement to the police on 30 August 2018. I have also read the reasons of the learned Magistrate in his judgment of 14 March 2019. I note that I am bound to observe the “natural limitations” where the appeal is conducted by reference to the documentary record – see AG v Director of Public Prosecutions (NSW) [2015] NSWCA 215 at [5] per Basten JA.

Evidence in the Crown case

5. The first witness called by the Crown was the complainant, Tessa Millican. She had undergone an interview with police on 30 August 2018 which was recorded by DVEC (Ex B), which was played in court. In that interview, the complainant, who was 20 years of age, gave evidence that she had been previously dating the appellant for one year, but they had been separated for eight months. On 29 August 2018, she had gone to the home of the appellant and there had been a confrontation. She gave evidence that the appellant got angry and grabbed her, spat at her, grabbed her by the throat and was strangling her, and slapped her across the side of her head. The physical altercation went on for some time and she described a loss of consciousness when she fell to the floor. She told the police that she had to “wait it out for hours and hours”.

6. The complainant gave evidence that the appellant did not like the fact that she was seeing someone else. He grabbed her around the throat with his right hand and she could not breathe. He then grabbed her phone from her left hand, causing her an injury to the knuckle of her left finger. He then, after spitting in her face, grabbed her by the throat a second time. She gave evidence that she was slapped across the side of the head two or three times and when the appellant grabbed the phone from her left hand he threw it into the corner, then picked it up and smashed it again. When she tried to stand up, he choked her with both hands and she fell to the ground sideways.

7. The complainant gave evidence that during this altercation, the appellant was yelling expletives at her constantly. After a couple of hours he calmed down and she told him she still cared for him and convinced him that she needed to go to hospital. She was able to leave and drove herself to the hospital. On the way there, the appellant called her and told her he was going to the hospital. At the hospital he sat next to her and following her examination and x-ray she went home by herself.

8. The complainant gave evidence that she was not under the influence of drugs or alcohol, and had shown the bruising on her neck to the police, of which photographs were taken, which became Ex 3. A photograph of the damaged to her Apple Iphone became Ex 2.

9. The complainant also gave evidence, which was allowed over objection by the learned Magistrate as context evidence, that she had been, during their relationship, subject to previous assaults. She described herself as being constantly threatened, stalked and intimidated and had constant fears for her safety. She gave evidence that the appellant had threatened to kill her, tie her up, kill her dog and place his head on the washing line, kill her family and blow up her house. This had been a recurring cycle during their relationship.

10. In her evidence in chief, the complainant gave evidence that the appellant was sitting right next to her at the hospital. When asked what he was doing, she said:

1. “He was making me feel very uncomfortable. He kept putting his hands on me, feeling like an intimidation so I wouldn’t say anything.”

11. The complainant gave evidence that the appellant had told her to tell hospital staff that she tripped over her dog, because “if I told them what really happened he would hurt me even more so”. She therefore told the medical staff that she tripped over her dog. She said she was scared that the appellant would go to her house and hurt her dog or hurt her family. She gave evidence that the next morning she went straight to her doctor to have her left hand looked at. She told that doctor that her ex-partner had attacked her the night before, and had caused her some injuries.

12. She then gave evidence that when she went home the appellant had turned up at her home and was “lashing out and abusing her on her driveway”. The police were called and she agreed to go to the police station later that day to make a statement. Finally, by reference to a clock above the sink at the appellant’s premises, she gave evidence that she was probably at his residence for “probably about three to four hours”.

13. The complainant was cross-examined about her relationship with the appellant. Although they had separated, they had a continuing sexual relationship and she agreed that the appellant was financially supporting her “to some degree” up until the time of the alleged assault. It was put to the complainant that the reason she went to the appellant’s house was to walk her dog, which she denied. She agreed that the confrontation had taken place over a number of hours, during which there was a lot of yelling, screaming and the appellant had thrown a number of objects around. The complainant gave evidence that the granny flat in which the appellant lived was approximately five metres from the main residence. It was put to the complainant that the confrontation did not happen at all, which she denied. It was suggested to her that a conversation had taken place about the appellant attempting to get back into the relationship and she decided to leave the premises and stormed out, which she also denied. It was put to her that she had fallen over as she walked to her car and that the appellant had come to her aide and picked her up, which she also denied. The complainant also denied that the appellant rendered her some assistance by placing a piece of frozen chicken on her left hand and it was he who suggested that she go to the hospital. She denied that the appellant had said that he was going to his mum’s house for dinner and then after dinner would come to the hospital.

14. The complainant was cross-examined about telling the triage nurse that she fell over her dog and injured her left finger. She agreed that she lied in saying that, but did so because the appellant told her to.

15. The complainant was also cross-examined about her examination by Dr Ajuyah at the Tristar Medical Centre the next morning. It was put to her that she told that doctor that she had been slammed to the floor by her ex‑partner. She could not remember saying that. She agreed that she made no complaint to that doctor about her neck. The complainant gave evidence that she did not show the doctor and he did not ask her about her neck.

16. The complainant conceded that she had been talking to the appellant previously about quitting her job, but denied that he had told her that he could not support her financially if she did quit her job.

17. When the police attended at her home on the morning of 30 August, the complainant agreed that she chose not to say anything about what the appellant allegedly had done to her. She did, however, show the police the injury to her hand. It was put to her that she did not make any complaint to the police that the appellant had done anything to her and she answered:

“A: No. But she did ask me if Jason had done this injury that had happened to my hand and I said yes.”

She told police that she would talk to them later.

18. The complainant was then cross-examined on her statement to the police later that afternoon. It was put to her that her motivation for attending the police station was the fact the appellant “had just made a 100% decision he wasn’t going to give you any more money”, to which the complainant said “no”.

19. It was put to her that she was looking for payback which she denied. It was put to her that any damage occasioned to her phone occurred when she had fallen over as she left the appellant’s premises that night, which she also denied. Finally it was put that the appellant never deliberately or recklessly threw her phone on the ground, which she denied.

20. In re-examination the complainant gave evidence that she did not report to the doctor at the hospital what had occurred because the appellant was in the room with her at the time and had previously threatened her. She did not tell the police who attended her home the next morning what had happened because the appellant had been verbally abusing her on the driveway and asking to take her dog, and she was scared of him being on the premises and did not want to say anything whilst he was there. Once he was escorted off the premises and told to leave, she told the police officer that she would come to see her later at the police station.

21. In further cross-examination, it was put to the complainant that the appellant had never made threats to her “not to tell the hospital” which she denied.

22. The Crown called Lynette Joyce Hoare. She adopted a statement she made on 9 September 2018 to police, which became Ex 6. In that statement she set out the circumstances in which she leased a granny flat at premises in Coffs Harbour to the appellant. She stated that she was at home on Wednesday 29 August 2018 and at around 6.30pm noted the complainant’s motor vehicle outside on her driveway to the granny flat. She was watching television in her lounge room which was situated at the rear of the house. The television was located to the rear wall connecting the back yard and the granny flat area. She watched television until between 8.30pm and 9pm. She then noticed both the complainant’s and the appellant’s car gone. She did not recall hearing anything from the granny flat area, but did notice that the curtains in the granny flat were closed throughout the evening.

23. In the early hours of the morning of 31 August 2018, she was woken by a knock on her front door. Police attended and were asking for the appellant, who was not at home. She spoke to the appellant the following morning. Annexed to her statement was a sketch plan of the premises including the granny flat.

24. In cross-examination, Ms Hoare gave evidence that whilst she was aware in August 2018 that the complainant would visit the appellant three or four times a week, she never stayed overnight.

25. She confirmed that on 29 August 2018 she didn’t hear anything from the granny flat. She gave further evidence that the neighbour’s premises were also close to the granny flat.

26. In re-examination, Ms Hoare confirmed that the doors to her home would have been open on the night of 29 August 2018, but they were on the other side of her house from the granny flat. She was watching television, but facing the granny flat. She did not observe anything outside the granny flat and did not hear anything happening outside the granny flat.

27. Exhibit 7 was the statement of Senior Constable Dews. It set out the circumstances of the arrest of the appellant. He was not required to give evidence.

28. The officer in charge, Senior Constable James, gave evidence and his statement was tendered as Ex 8. He was cross-examined on the basis that he failed to go to the scene on 30 August 2018 to examine the premises. He did go there on 9 September to deliver a subpoena to Ms Hoare, but did not inspect the granny flat. He took no measurements whilst he was there and made no enquiries of the neighbours as to whether they had heard anything on Wednesday 29 August 2018. He conceded that when he spoke to the complainant on the morning of 30 August at her home, he did not make any observations of injury to her neck. He stated:

“I wasn’t looking at her neck at that time, so no, I didn’t.”

29. He did notice that the fingers on her left hand were bandaged. Senior Constable James denied that he accepted the complainant’s version of events and did not do anything else because he thought the appellant was guilty. He conceded that he could have made further enquiries.

Evidence in the accused’s case

30. The accused gave evidence that as at 29 August 2018 he and the complainant had broken up, however, they continued to have a sexual relationship and he also fully financially supported her. The complainant had arrived at his premises on the 29th, after he told her not to. She arrived “around 6pm”. He was asked:

“Q: What happened then?

A: She then asked why I did not want to see her. I told her our family friends had told – informed me that she had been seeing somebody else in a relationship and that was enough for me then to ask her please leave and that she’s lost my trust and to leave my home.”

31. The appellant then gave evidence that the complainant “emotionally broke down and tried to convince me to forgive her, it was a mistake”. He told her that was enough and “could you please leave”. When asked what then happened, he gave evidence that she stormed out of his flat and when he looked out the window he saw her laying on the ground near the gate. He gave this evidence:

“I then walked out there to ask her what was wrong. She told me she had tripped over and hurt her hand. I helped her up, brought her back inside my home.”

32. He then provided some frozen chicken to apply to her injured hand and then she told him that she needed to go to the hospital.

33. The appellant denied that he made any physical attack on the complainant, including slapping her head, spitting on her, choking her, or striking her physically. He denied also breaking her phone. He then gave evidence as follows:

“Q: What happened then?

A: I then told her that I’ll not be coming to the hospital with her straight away, I’m going to have dinner at my mother’s house. She agreed. I told her that I’ll come and meet her there after I’ve had dinner at my mother’s. We both then left in separate cars and I then went and had dinner at my mother’s house. After dinner, I drove to the hospital. She was sitting in the emergency ward. She told me that she had seen triage and also had x-rays. I asked her if she needed a drink or something to eat and she said ‘yes’. I got it from the machine for her. I come back with the food and then the doctor come out within 10 minutes. She asked me to come inside to see the doctor with her in hospital. I walked in there with her. The doctor said she had no injuries, it was just some swelling to her hand. She put some tape on it, she asked for painkillers and the doctor said ‘no’, and that was the end of it.”

34. The appellant denied telling the complainant to provide the hospital with a false version of what happened. He gave evidence that he then walked her to her car and she asked if he could come around in the morning and cook her breakfast.

35. He then gave evidence that he arrived at her home at about 8.30am the next morning. She told him that she had been to Tristar Medical and that she had quit her job. The appellant gave evidence that he told her that was a bad idea because he would not be financially supporting her anymore and that their relationship was completely over. Within five of 10 minutes after that, the police arrived. They were split up and the next day he went to the police station after learning that there were 20 odd police officers in his backyard at 3am that morning. He was arrested at the police station.

36. In cross-examination, it was suggested that the appellant was very upset when he found out that the complainant was seeing other people, because of the financial support he provided her. He gave evidence that she had lost his trust by not telling him the truth.

37. The appellant gave evidence that he never agreed to be in an exclusive relationship with the complainant, but denied that he thought because he was financially supporting her, she should be exclusive to him. He also denied being angry that she was sleeping with someone else. He gave the following evidence:

“Q: You said from that point that you were withdrawing your financial support because she was seeing somebody else?

A: Yes.

Q: So is that the case that her remaining exclusive to you was a condition of that financial support?

A: I never wanted her to remain exclusive to me, she was telling me she was.”

38. His Honour intervened and established that they had been in a relationship for two years, that he was financially supporting the complainant, and was still seeing her three to four times a week for sex. He was then asked:

“Q: In those circumstances, why do you say that as of 29 August you weren’t in a relationship?

A: We were, we were in a relationship basically, you know what I mean, we were in a relationship but she’s saying we’re not. I – I started dating Tess at the start of 2016, end of 2016, for two years, for a year, sorry, then I still supported her for nine months after that. I still pay her rent, I still pay her power bill, I still bought her dog food for her dog. We were acting like there was no actual breakup but we were broken up but she was still coming around to my house and having sex with me and taking my money.”

39. The appellant then clarified that rather than financially supporting her for nine months, it had actually been for a period of one year and nine months. He denied that in finding out about her seeing other people it had come as a shock to him. He further denied that he ever lost his temper with her. He gave evidence that he would never lay his hands on a woman.

40. The appellant gave evidence that it was only a period of one or two minutes between when she left his flat and when he saw her lying on the ground near the gate. She was lying on her right-hand side, but he could not remember whether she was near the stones outside his premises. At the time he saw her, it was about 6.45 or 7 o’clock. He then gave evidence that it was half an hour after that before she left for the hospital. It was a 15 minute drive from his place to the hospital. He was visiting his mother, which was in the opposite direction. It was put to him that there was a three hour delay between when he said she left for the hospital and when she actually arrived at the hospital, which he answered:

“Q: Well, she’d be the person to ask that.”

41. It was suggested to him that his version of the events was completely untrue, which he denied. The Crown then put the Crown case to him, which he denied. He did, however, agree that he had seen the photographs of of her neck taken on 30 August 2018 and that there were bruises on her neck. He gave evidence that he did not know how those bruises came to be. He gave further evidence that on 29 August 2018 he never observed any bruises on her neck. There was no re-examination.

42. The appellant also called Mr Ian Tomkins, who was a neighbour. The boundary of his premises was one metre from the boundary of the granny flat, and a number of photographs were tendered, which became Ex 9 in the proceedings. He gave evidence that two days after 29 August, Lynette Hoare had come to speak to him and ask him whether he heard anything two nights previously. He gave evidence that on that night he heard nothing at all, and that it was actually “very quiet”. He gave further evidence that he saw a female arrive at the granny flat that night, but then gave evidence that he had never seen her that day. He was absolutely positive he heard no commotion on the evening of the 29th.

43. In cross-examination, Mr Tomkins gave evidence that he sat on his verandah from 8am until 2am each day and he conducted a disability business from his verandah. He was asked:

“Q: But you say you didn’t see her at all on that night?

A: No, I wasn’t out the front at all that afternoon or night. Normally I see her car or her walk in because she used to park in front of our place and when you hear a car pull up I would go and see who it was in case it was a staff member.

Q: You didn’t see a car pull up at all?

A: No.

Q: You didn’t see her pull up at all?

A: No.”

44. Mr Tomkins gave further evidence that he did not hear or see anyone else coming or going from the property that night, and he did not hear any words being spoken from the granny flat on 29 August. On that night he had heard no conversations in the flat at all, and heard no one fall over outside the flat.

45. In re-examination, Mr Tomkins gave evidence that he was not fixated on watching the area outside the unit. Further, if he had heard screaming, yelling or objects thrown for a number of hours, he would have gone into the premises.

The appellant’s submissions

46. The solicitor for the appellant relied on a written outline of submissions which set out the background of the offending, and the Magistrate’s determination in respect of each offence. Sequence 1, an offence pursuant to s 37(1) of the Crimes Act 1900 was dismissed by the Magistrate as he was not satisfied as to the reliability of the credibility of the victim as to that count. However, the remaining four counts were found proved. It was submitted that as the Crown case relied primarily on the credibility of the victim, her evidence had to be closely scrutinised before it could be accepted, relying on R v Murray (1987) 11 NSWLR 12. Further, the fact that the Magistrate did not accept her evidence in relation to Count 1 warranted a direction pursuant to R v Markuleski (2001) 52 NSWLR 82.

47. On the question of credibility of the victim, it was submitted that she gave a number of different versions to authorities, namely, the hospital staff and police. At the hospital she told the triage nurse that she “tripped over a dog”. The next morning, at her premises, she made no complaint to the police officer, Constable James, on her driveway. She gave a different version to the doctor at Tristar Medical Centre as to the injury to her fingers. It was only when she was interviewed by police that she alleged an injury to her neck, later that day.

48. It was submitted that the victim’s evidence that a confrontation took place that involved a prolonged episode of screaming, throwing objects and physical assault taking place in the granny flat, was not supported by the evidence of Ms Lynette Hoare. That evidence was important in assessing the credibility of the victim, as was the evidence of Mr Tomkins. Both those witnesses did not hear anything consistent with what was alleged to have taken place in the granny flat.

49. It was further submitted that the evidence of Senior Constable James, gave rise to real concerns about the investigation. No attempt was made to immediately inspect the scene or canvass potential witnesses. She did not attend the scene until 9 September 2018. The lack of immediate investigation of what was serious allegations had potential to hinder those investigations.

50. It was submitted that the appellant had consistently denied the allegations. Taking into account the warnings the court must have regard to the sole testimony of the victim and the contradictions in that evidence, it was submitted that the court would not be satisfied of the offender’s guilt beyond reasonable doubt.

51. In his oral submissions, the solicitor for the offender highlighted the factual dispute in the evidence between the appellant and the victim. It was submitted that the victim had a motive to lie and that a reasonable doubt arose as to whether the offences occurred.

52. The appellant rehearsed the inconsistencies demonstrated by reference to the transcript of evidence. It was submitted that the evidence of the victim was totally and utterly contradicted by the evidence of Ms Hoare. Further, Sequence 1 had been dismissed, as the learned Magistrate was not satisfied that a choking had taken place.

53. The appellant rehearsed the written submissions in respect of the police investigation and the consistency of the appellant’s evidence. It was submitted that the appellant’s evidence should be accepted, the offences did not happen, and that he had maintained his innocence to the day of the appeal. On that basis, the court could not be satisfied beyond reasonable doubt of Sequences 2 to 5.

The Crown submissions

54. The Crown submitted that the learned Magistrate was entitled to assess the appellant’s evidence and to reject it for the reasons outlined by the learned Magistrate. The Crown adopted his Honour’s reasoning in rejecting the appellant’s evidence. The learned Magistrate also had the opportunity to assess the complainant’s evidence and demeanour through her cross‑examination and further, was entitled to have regard to the context evidence of their relationship.

55. It was submitted that the submission made by the appellant that the victim had a motive to lie should be rejected. The victim had presented the next day with injuries to her hand and neck following the incident where the appellant had decided to withdraw his financial support to her. It was submitted that it was not uncommon for the victims of domestic violence to give inconsistent accounts of how they were injured to authorities, particularly where a relationship was marked by violence. What happened here at the hospital and the next morning, was not atypical of how victims of domestic violence often gave inconsistent accounts of how they suffered injuries.

56. It was submitted that the court would be satisfied beyond reasonable doubt as to Counts 2-5. There was independent support, namely, the injury suffered by the victim to her neck, the photographs of her neck and hand, and the DVEC footage (Ex B) and hospital records. It was submitted that the court would accept the victim’s evidence and dismiss the appeal.

Determination

57. In his reasons for judgment, the learned Magistrate correctly directed himself as follows. First, he gave himself a direction, known as a Murray direction (see R v Murray (1987) 11 NSWLR 12). In that case Lee J said at [19]:

“In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; the direction of that kind does not of itself imply that the witness’s evidence is unreliable.”

58. In accordance with that principle, I have scrutinised with great care the evidence of the complainant in my determination of this matter.

59. The learned Magistrate also correctly directed himself in respect of what is known as a Markuleski direction (see R v Markuleski (2001) 52 NSWLR 82). The direction requires giving separate consideration to the individual counts, which means that I am entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome. However, if I were to find the accused not guilty on any count, particularly if that was because I had doubts about the reliability of the complainant’s evidence, I would have to consider how that conclusion affected my consideration of the remaining counts.

60. The learned Magistrate directed himself correctly in respect of the Markuleski direction, which became relevant as he found the appellant not guilty in relation to Sequence 1, i.e. the offence of intentionally choking the complainant by grabbing her throat and causing her to black out, which involved an element of recklessness as to whether his action could cause a loss of consciousness. The learned Magistrate found that he could not be satisfied that the complainant in fact blacked out, or that the grabbing of the complainant by the throat occurred with such force that the element of recklessness could be made out.

61. I am also mindful that the appellant had the presumption of innocence in his favour, and that he gave evidence in the proceedings, and clearly if that evidence was accepted, verdicts of not guilty should have arrived at by the learned Magistrate, and the appeal should be upheld.

62. The Crown has the burden of proof on each of the elements of the offences beyond reasonable doubt.

63. Based on the transcript of evidence alone, I am unable to make any findings as to the demeanour of the witnesses who gave evidence in the proceedings. However, as outlined above, the learned Magistrate did have that advantage, and for that reason I have deferred to his reasons in the fact finding involved here. Those reasons clearly demonstrate that the learned Magistrate properly directed himself as to the onus and standard of proof on the Crown of proving the elements of each of the charges beyond reasonable doubt. As outlined above, he also properly directed himself as to his assessment of the witnesses, including the appellant. He properly found that if there was a reasonable possibility that the appellant’s evidence was truthful, he would have to acquit him of each of the charges. Further, he properly directed himself that in the event that he rejected the appellant’s evidence, he could only be convicted where, in all of the circumstances, having assessed all of the evidence, he was satisfied beyond reasonable doubt of each of the elements of each charge.

64. The learned Magistrate was correct in identifying that there were only two people present in the granny flat, namely the complainant and the appellant. He also correctly identified the context evidence led by the prosecution. Given the fact that the complainant was 19 years of age, and had been involved in a relationship involving threats and violence, the learned Magistrate correctly identified that that evidence was relied on by the Crown to make more explicable the way the complainant reacted on this day, and the fact that she did not immediately go to the police and provide consistent details of the offences to both the hospital and the police.

65. The learned Magistrate analysed the evidence of the complainant accurately. I find the following facts are established on the evidence:

1. That the complainant visited the appellant at his home at approximately 6pm on 29 August 2018.

2. Between then and approximately 9pm, she suffered an injury to her hand which was subject to assessment by the triage nurse at the hospital at 9.36pm. She gave an explanation that she had tripped over a dog, and made no complaint about domestic violence on that night. She was later examined by a doctor at the hospital.

3. The appellant had not gone with the complainant to the hospital, but later joined her there while she waited to be examined by the doctor. He was present when she was examined by the doctor.

4. They left the hospital together but returned to their respective homes that evening alone.

5. The next morning on 30 August 2018, the complainant consulted Dr Ajuyah, and she told him that her ex-partner had slammed her to the floor and choked her until she passed out.

6. In his Certificate of Expert Evidence dated 5 October 2018, Dr Ajuyah noted that the complainant was “emotional”, and had a swollen and tender index and middle finger. He noted “there was no bruise mark or laceration to any part of her body”.

7. Following her visit to the medical centre, when she returned home, the appellant arrived at her home and they had a confrontation in the driveway of the premises.

8. At approximately 11.10am, a number of police officers attended the complainant’s premises, including Senior Constable James. At that time, she was teary and had tears running down her cheeks. She just wanted the appellant to leave and undertook to go to the police station later that afternoon.

9. The complainant went to the police station on 30 August 2018 at 3.50pm and underwent the DVEC interview. Further, photographs were taken of the injury she suffered to her left hand, the bruising to her neck, and her broken phone.

66. In coming to a determination of this matter, I have given weight to the matters established objectively on the evidence, and in particular, the time over which the events took place. I am satisfied that the complainant went to the appellant’s premises at approximately 6pm and was assessed by the triage nurse at hospital at 9.36pm. That time period is consistent with the evidence given by the complainant as to what occurred, and inconsistent with the evidence of the appellant. Also consistent with the complainant’s evidence were the injuries suffered by her, namely, the injury to her left middle and index fingers, treated by, first, the hospital, and secondly by Dr Ajuyah. Also relevant are the photos of the bruising to the complainant’s neck taken by the police later the next day. Whilst in his expert certificate dated 5 October 2018, Dr Ajuyah recorded there was no bruise mark or laceration to any part of her body seen by him, that finding was not consistent with the clinical notes he made at the time of her consultation on 30 August 2018, namely:

“Says ex-partner slammed her to the floor.

Says partner chocked her until she passed out (sic)

Feels terrified

…

Examination: muscular-skeletal: left, finger – index and middle, swollen and tender (sic).”

67. I agree with the learned Magistrate’s finding that the evidence of Mr Tomkins was unsatisfactory and would be given little weight. I also agree with the assessment of learned Magistrate of Ms Hoare, whom, during the time of the incident was concentrating on watching television, and was in a different part of the premises to the granny flat. I reject the appellant’s submission that her evidence undermines the credibility and reliability of the complainant’s evidence.

68. I find the evidence given by the appellant as to the nature of the continuing relationship between he and the complainant was somewhat implausible. I agree with the learned Magistrate’s findings that his evidence that he had no real expectation of exclusivity in that relationship “beggars belief”, and further, his evidence that he was not angry about the complainant’s conduct did not have the ring of truth about it. I find that he attended the hospital so as to intimidate the complainant and to ensure she gave a false account of how she suffered the injury to her hand. There was no evidence from either the appellant or the complainant that the dog had been present during the incident at his home. It is also inconsistent with his version of events that she tripped on some stones lying near the gate to the premises.

69. I have found no error in the reasoning of the learned Magistrate, or his analysis of the evidence. Notwithstanding there was some exaggeration in the complainant’s version of what occurred at the appellant’s premises, relating to the amount of yelling and screaming, I am otherwise satisfied that she suffered the injuries of which she complained eventually to the police, in the manner about which she gave evidence.

70. I am therefore satisfied that the elements of each of the four offences have been proved by the Crown beyond a reasonable doubt and that therefore the appellant’s conviction appeal should be dismissed.

Orders

71. I make the following order:

1. The appellant’s appeal in respect of the following convictions is dismissed:

1. Section 59(1) of Crimes Act 1900 – sequence 2 – assault occasioning actual bodily harm – domestic violence related.

2. Section 61 of Crimes Act 1900 – sequence 3 – common assault – domestic violence related.

3. Section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 – sequence 4 – stalk/intimidate – domestic violence related.

4. Section 195(1)(a) of Crimes Act 1900 – sequence 5 – intentionally or recklessly damage property – domestic violence related.

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Decision last updated: 23 August 2019