McMahon v The King

[2024] NSWDC 692

District Court

New South Wales

Medium Neutral Citation:

McMahon v R [2024] NSWDC 692

Hearing dates:

14 October 2024

Date of orders:

18 October 2024

Decision date:

18 October 2024

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

(1)   Appeal allowed

(2)   Conviction and sentencing orders set aside.

Catchwords:

CRIME — Appeals — Appeal against conviction

Legislation Cited:

Crimes (Appeal and Review) Act 2001

Cases Cited:

Charara v R [2006] NSWCCA 244

Dyason v Butterworth [2015] NSWCA 52

Fox v Percy (2003) 214 CLR 118

Lunney v DPP [2021] NSWCA 186

McNabb [2021] NSWCA 298

Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Crown)
John McMahon (Appellant)

Representation:

Counsel:
S. Apps for the Appellant
Solicitors:
Director of Public Prosecutions for the Crown
James Fuggle Rummery Solicitors for the Appellant

File Number(s):

2022/103786
2022/102775

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

29 April 2024

Before:

Magistrate M. Dakin

File Number(s):

2022/103786
2022/102775

JUDGMENT

1. John Terrence McMahon appeals his conviction of assault occasioning actual bodily harm as found by a magistrate of the Local Court. The complainant was Paul McMahon. Paul McMahon and John McMahon are brothers and will be referred to as the complainant and the appellant respectively in these reasons. The appeal is brought pursuant to s18 of the Crimes (Appeal and Review) Act 2001 (“CARA”).

2. The approach to take in respect to an appeal under section 18 of CARA has been the subject of numerous Court of Appeal and Court of Criminal Appeal decisions. The approach to take is based on cases such as Charara v R [2006] NSWCCA 244 and Dyason v Butterworth [2015] NSWCA 52 and is as follows:

1. An appeal against conviction is to proceed by way of a rehearing on the basis of evidence given in the original Local Court proceedings: s18(1) CARA. CARA permits further evidence by leave per ss 18(2) and 19.

2. The appellate judge is to form their own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the hearing: Charara v R [2006] NSWCCA 244 at [18]

3. The Court is entitled to consider the reasons of the magistrate including an assessment of credibility issues because the appellate function could not properly take place without reference to them: Charara v R [2006] at [23]-[24]

4. The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

5. The Court is not obliged in every case to undertake a complete review of the whole evidence and form its own view of the appellant’s guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lunney v DPP [2021] NSWCA 186 at [44].

3. The approach may also be described in the way stated by Justice Gageler in Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1 as the “correctness standard” which was his Honour’s way of describing the standard being spoken of in Fox v Percy.

4. It is instructive to note what was said by Bell P as he then was from the case of McNabb at [25]:McNabb [2021] NSWCA 298

“the task for a District Court judge in hearing a section 18 appeal is to form his or her own judgment on the facts and to determine on the basis of the evidence that was before the magistrate (supplemented by any further evidence received pursuant to section 18 (2) of the CAR Act or as a result of the calling of a witness pursuant to section 19) whether that evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the court reaching a fresh conclusion as to the appellant’s guilt on the basis of evidence given in the local Court but without the error of law which tainted the result at first instance.” His Honour then went on to observe that a dismissal of a section 18 appeal against conviction will necessarily carry the conclusion that the magistrate did not commit “some legal factual or discretionary error” citing Allesch.

5. The notice of appeal does not identify any grounds of appeal. The submissions of the appellant argue that there has been an error by the magistrate in finding the Crown had satisfied the high onus of proof beyond reasonable doubt.

6. Those submissions set out the evidence of the appellant that is especially relied upon. It is submitted that evidence should be interpreted as showing a clear denial of the alleged assault. Reference is then made to the evidence of the complainant and in particular his history of fraudulent offending. The submission is really nothing short of saying that a person with that background should not be accepted as a reliable witness. The point is also made that it was the appellant who immediately contacted the police though almost at the same time the complainant was on his way by car to attend the police.

7. The evidence will be referred more fully below. Two comments can be made at the outset, both favorable to the Crown case. The first is if it was being put as high as to say that a person with a history of fraudulent offending could never be accepted as a witness then that is a proposition that in my view should be rejected. The submission of the appellant went close to that extent however does rely on other matters of evidence showing on the appellant’s argument reasons why one would have doubts about the assertions of the complainant. The second is that the complainant attended the police station within one hour of the alleged incident. The complainant alleges that he suffered injuries due to the assault of him by the appellant by the use of a whip. When at the police station the alleged injuries were photographed and they reveal welts across his back entirely consistent with someone having been struck by a whip. At first blush on the facts of this case that is strong objective evidence supporting the allegation of the complainant.

The evidence

8. There is little dispute between the parties as to much of the surrounding circumstances in which these allegations arise. The following is not in dispute:

1. The complainant was born in 1961 and is the older brother of the appellant who was born on 1 April 1965.

2. The father of the appellant and complainant was as at 2022 in ill health and at the date of the allegations was not residing on his farming property.

3. In February 2022 for various reasons the cattle on the property of the father were in poor condition. The complainant was residing at that property and he was aware of the condition of the cattle.

4. The father died on 5 April 2022.

5. The date that it is alleged the assault occurred was 10 April 2022. The following matters are agreed:

1. The appellant was riding his horse on the property of his father and where the complainant resided.

2. The complainant approached the appellant at that time which was approximately 3 PM. The complainant too was riding a horse.

3. The appellant had a whip.

4. The appellant cracked (or used) the whip.

9. What is very much in dispute are the number of times the appellant cracked or used the whip, just when the whip was cracked or used, and whether the appellant at any time struck the complainant with the whip (as noted below the complainant makes a distinction between “cracking” or “using” the whip).

10. The appellant’s evidence was that as the complainant approached him and was approximately 30 m from him he cracked that whip. The appellant says the complainant continued towards the appellant. The appellant cracked the whip a further time. At the time that he did so he says the complainant was close enough to him so that he could and did touch the horse the appellant was riding with a stick. The complainant denied having a stick (see at T84.18). The complainant also made clear the allegation was not of the appellant cracking the whip but using the whip; T83.45-.48.

11. In his evidence the appellant stated a number of times in an unequivocal way that he did not strike the complainant with the whip. In cross-examination he again denied striking the complainant with the whip. One answer relied upon by the Crown and by the magistrate in his reasons was that he did not strike the complainant with the whip by saying “Not to the best of my knowledge no”. The magistrate found that this was equivocal, that is that it allows for the possibility that he did strike the complainant. This argument is dealt with below.

12. In the face of evidence that shows the complainant had injuries consistent with having been whipped numerous times the conclusion reached by the magistrate can be seen to be one that has support. The injuries can sensibly be viewed as being objective evidence, certainly at least to the fact that some injuries were suffered. Yet the appellant fairly points out that the only evidence the injuries were due to the whipping comes from the complainant.

13. A range of matters are relied upon by the appellant to argue that taking all matters into consideration the high onus on the Crown has not been met. Those matters include:

1. No adverse finding of credit against the appellant.

2. The finding of the complainant being an impressive witness is at odds with the evidence.

3. The complainant is a person of such little credit that he should not be accepted, and even moreso when certain asserted discrepancies in his evidence and the manner in which he gave his evidence are considered. The discrepancies relied upon include evidence of the complainant that he had been struck in the face with a whip when not wearing his sunglasses, but there was no injury or mark on his face. Similarly he alleged in court some 18 months after the event that he had been struck and marked on the abdomen, something he never told police.

4. This point extended to examining the evidence of both parties as to the number of times the whip was used. On the case of the appellant it was twice; on the evidence of the complainant as interpreted by the appellant, it was eight times.

5. Deficiencies in the police investigation. In this regard:

1. No examination of the whip for blood.

2. No examination of the clothing or fibres thereof, so no evidence of any blood thereon.

6. Conduct of the appellant at odds with a person having committed an offence in particular that he immediately contacted police.

7. The good character of the appellant.

14. The Crown accepts the complainant was responsible for the animosity between the parties and also that the complainant is disreputable. The Crown argues that the points made as to the complainant’s lack of credit and any found deficiencies in his evidence does not mean that he should not be accepted on the key issue of whether he was struck by the appellant with the whip. The Crown notes that it is not necessary for all the evidence of a witness to be accepted. The Crown sensibly relies upon the timeline of these events which in short is that at approximately 3.15PM it is agreed there was an interaction between the complainant and the appellant involving a whip and at about 4 PM the complainant attended police and exhibited to them injuries consistent with having been whipped. Those injuries were photographed and became Exhibit 1.

15. It is also obvious from the evidence that the state of animosity between the brothers was intense. Although the submission is not put this way by the Crown the evidence shows the appellant to be a far more law abiding person than the complainant and also seeking to act in the more appropriate way concerning their father’s cattle. Yet on the appellant’s evidence the complainant was making assertions and statements of the most offensive kind at the time of these events; for example that the appellant had killed their father and was a murderer. Being possessed of the whip at that time and being in close proximity to the complainant it is well conceivable that the appellant struck out with the whip on more than the two occasions that he swears too. The difficulty for the Crown here is on the Crown case, these inflammatory words were not said; rather it was initially put that the appellant used the whip because the complainant had sold some of the father’s cattle. The appellant denied this; see T19. Then at T20 it was put to the appellant that he was upset by what the complainant allegedly said, and he whipped the complainant instead of riding away. The appellant denied this.

16. The appellant expressly did not run a case based on self defence. That is, despite the complainant coming towards him with a stick in, on the appellant’s evidence, what could only be described as an aggressive manner, it is not said that the use of the whip was in self-defence. The short and simple point for the appellant is that he did not strike the complainant with the whip. The appellant does not profess to know how the evident injuries came to be on the complainant. The appellant argues that those injuries came to be upon him in no way connected to their interaction.

17. The appellant emphasises in his argument that there is no onus on him at any stage to prove anything. As the appellant went into evidence a Liberato direction was given by the magistrate to himself and that is recognised by the appellant. The appellant’s point boils down to saying that properly following that direction, and given the various findings as to the evidence of each party that ought to have been made the magistrate should have concluded that the version of events given by the appellant may be true.

18. The findings of the magistrate were to interpret the answer of the appellant in cross examination as to whether the whip made contact with the complainant “not to the best of my knowledge no” as allowing for the possibility that such contact was made. That interpretation coupled with a finding that the evidence of the complainant was impressive, and that complainant’s answers were given directly and appropriately led him to reject the version of events given by the appellant and to accept the Crown case as being made out beyond reasonable doubt. The magistrate went so far as to say that he found the complainant to be a compelling witness.

19. The difficulty for the appellant is of course the evidence of the injuries. The magistrate at T 31 described the suggestion of the complainant fabricating or inflicting the injuries on himself as being implausible for a number of reasons. Those reasons as set out in the following paragraphs are that the complainant was a compelling witness and that the injuries were on the view of the magistrate from three significant whip strikes. The magistrate rejected the suggestion that because of the criminal history of the complainant he had inflicted those injuries upon himself.

20. Pausing there, it is by expressing himself in that way that there is scope for criticising the magistrate for reversing the onus. This is because he seems to be saying here that the version being put by the appellant is fanciful, that it is rejected and therefore he accepts the Crown case. Put another way it reads as if he has a preference for the Crown case. That is not the correct application of a Liberato direction. The correct approach is to put to one side the version of the appellant and then consider the evidence of the complainant. It is in respect of that evidence of the complainant that the magistrate needs to be satisfied beyond reasonable doubt.

21. That said I do not take the view that the magistrate has misapplied the Liberato direction but rather there has been at worst a looseness of expression. This is because having rejected the appellant’s version he then states that he considers the complainant a compelling witness.

22. Notable in the magistrate’s reasoning is that there is no criticism of the evidence of the appellant beyond his interpretation of what was said to be an equivocal answer identified above.

23. What needs to be considered in determining this appeal is whether the magistrate was correct to find the complainant a compelling witness and also whether the magistrate was correct to interpret the evidence of the appellant as allowing for the possibility that he may have struck the complainant.

Consideration

24. The point regarding the complainant’s clothing adds little; if the injuries were inflicted other than by the appellant, it would be simple to inflict them wearing the same clothes, especially given the short period of time between the interaction of the parties and the complainant attending the police. Nevertheless it is fair to say that had the police investigation extended to obtaining the clothes there would be more information available and hence less speculation. The same can be said as to the failure to obtain the whip.

25. Of more substance is the challenge to the magistrate’s findings that the complainant was a compelling witness and that he was straightforward in giving his evidence. The complainant's evidence in chief was that he saw his brother about 100 m from him and that the appellant commenced the discussion by saying he was taking the cattle down and that the RSPCA were coming. The complainant said “I’ve already had animal welfare and the district vet was here yesterday and today”. He said he was doing the best he can. The complainant said the immediate response of the appellant was to say “see that’s the last thing you’ll see” and that as he was saying that he felt his sunglasses become dislodged and the stinging mark across his face. At T34 the complainant said that his sunglasses became dislodged and fell into his open neck collar and next he felt a whip on his “exposed right arm-left-left arm”. He said he didn’t realise his brother had a whip until he felt the second whip on his arm.

26. At T35 he says that he felt a further whipping on his abdomen and still had the bruises and showed them to the court which was said to be a red mark on the left side of his abdomen. He said the next whipping after that was to his back. He had turned his back and turned his horse in the context of the horses shifting about and he said he was receiving whip marks on his back.

27. A point made by the appellant is that on the version of events given by the complainant there are as many as eight strikes upon him by the appellant with his whip. That submission is made out by considering the evidence at transcript pages 34 through 39. There is the initial alleged strike to his sunglasses, then to his arm then to his abdomen and then four or five strikes to his back. Indeed given what was said in cross examination at T74 on one version the second strike was to his face without sunglasses.

28. A number of matters arise from this. Firstly the transcript at T73-74 shows some marked differences between the evidence given to the police by the complainant at the time of the alleged event and his evidence in court. In particular he mentions for the first time in court having been struck in the abdomen; further he does not in court before being shown a statement refer to being struck in his face after a blow that had been “detected” [presumably deflected] by his sunglasses. It is common ground he had no injury to his face. That may well be the case if the blow was deflected by sunglasses but it is difficult to see how a whip strike to an unprotected face could leave no mark or other injury. Further still this whip attack of as many as nine blows stands in very stark contrast to the version of events given by the appellant which refers to two cracks of the whip and one of which (according to the appellant) was when the complainant was some 30 m away. The two versions of events are irreconcilable.

29. The magistrate was correct to say that the attack on the complainant’s credibility was more to do with his fraudulent behavior in the past than the reliability of his account. Nevertheless as just demonstrated there were some significant differences identified in his account of the events, something of which the magistrate did note. At T 26 the magistrate said that the complainant answered questions directly and appropriately and did not strike him as a person trying to exaggerate or embellish his account. He said he gave his evidence in a direct and straightforward manner.

24. The magistrate did not consider the variations in the complainant’s evidence concerning the strikes from the whip to be damaging, saying that he was not so much describing injury to his face but rather that the whip had struck sunglasses that were on his face. Beyond that explanation at T26.29 no examples are given of why the evidence was considered to be compelling, direct or straightforward. That is not to be gratuitously critical of a magistrate who is stating the impressions the evidence made upon him including as to the witness’s demeanor. The advantage that the magistrate has in assessing the demeanor is acknowledged.

25. Having considered the transcript the impression the evidence makes upon me as given by the complainant is unfavorable. There are numerous parts of the evidence resulting in this view. These include:

1. When challenged about the differences between his evidence in court and what he told police and being confronted with what he had said in his statement, and very shortly after being challenged as to the strikes to his face or glasses at T 72-73 he answered at T73.24 “Whatever. Yes. Whatever I said at the time. Yeah.”

2. Repeatedly in his cross-examination he took objection to the question even after he had been told to answer the question unless there was an objection from the prosecutor. For example at T46 in the course of being asked questions concerning an application in 2022 to change his name he at first answered at T44.42 by saying “that’s not relevant today” which is plainly nonresponsive, then at T45.09 answered “I don’t see the relevance of that today unless I’m directed to answer that your Honour”. The prosecutor then expressly states he has no objection and the witness is directed to answer the question and he does so. The questions continue on the same topic of the name change and relevant form filling, which included stating whether he had a criminal history and he answers at T 46.01 “is this relevant your honor” to which he is told by the magistrate that no objection is taken to which the witness replies “well I object. It’s res ipsa loquitur your honor”. Putting aside the questionable use of Latin this is a witness who is not being compelling and straightforward. He is in fact being evasive and nonresponsive. Not only that he takes the same inappropriate point on the same topic following being directed to answer a similar earlier question.

3. At T49 the complainant was advised of the provisions of section 128 of the Evidence Act something that arises due to the proposition being put that he had acted inappropriately in relation to his application for a change of his name in 2019/2020. Having been informed of those provisions he then objected to the question but not on the basis that it may incriminate him but because in his view it was not relevant, returning to his earlier pattern. The witness then answered the question without taking the objection by answering that he may have misled by not detailing his criminal history in that form but it was not done knowingly. Just how that could be was not explored; this exchange in the evidence is hardly flattering of the witness.

4. The cross examination then proceeded to go through the criminal history of the complainant which included fraudulent offences and theft offences. Almost immediately the answer given was “objection”. He then agreed that he had been charged with 117 counts of fraud and dishonesty by saying “thereabouts”.

5. A point made by the prosecution in this regard is that this fraudulent activity is all some time ago [if the name change form issue of 2020 is put to one side]. That is a fair point. But the manner of answering the questions about what I find are significant events in the life of the complainant is notable. At T52-53 his answers as to why he changed the spelling of his name soon after having been charged with the fraud offences are unconvincing. He says that he had spelled his name that way (MacMahon as opposed to McMahon) while overseas and that the change of name was to assist in continuing to use that name. So, based only on the word of the complainant the position is that he uses a differently spelt name overseas, is then charged with many offences in Australia and then seeks to change his name, he says to bring it in line with the use before the offending and not to do with trying to distance himself from the name connected to his offending. I consider that unlikely.

6. He was then asked about whether he had been charged with making a false name or giving a false name to police, something he denied. When it was put to him he was charged with that he answered variously “I cannot remember that” and “I have no recollection of that” and “I can’t recall. All I remember is something about the car being owned by my brother and living with my brother at that stage. It was around about the time of the divorce” and “not that I can recall”. That is evidence that is not direct and straightforward.

7. He was asked in respect of some detail of his offending and he agreed that he accumulated false identity documents that he knew related to deceased children. When asked about a camouflage passport in the name of someone other than himself he answered that the bank he worked for overseas gave him that passport, and that it was a British West Indies passport, a country which he offered had not existed since 1966 (a piece of evidence of the complainant which in itself seems fanciful). He then objected to the line of relevance of the question. This is a continuation of his earlier manner of answering questions. To my mind he must have appreciated by this time that the court was permitting these types of questions and his continued advocacy as a witness by taking these objections does not show him in a good light and indeed in my view shows he is seeking to evade examination of his discreditable past.

8. To confirm this view a question is immediately thereafter put to him that he obtained at least four false named passports and opened 29 false named bank accounts and registered false names with the electoral commission on 35 occasions. His answer was to take a further objection.

9. The magistrate engaged with the complainant and asked him what the objection was and there was a discussion in front of the witness as to the point of the questioning with the magistrate asking how it assists him by going through multiple defalcations, something with which the witness was eager to chime in and say “yes”, agreeing with the magistrate. There was then some debate in the absence of the witness, the upshot of which was the matters were not taken further. The stated aim of the appellant’s counsel was to demonstrate that the complainant was a person who would go to significant lengths to be dishonest such that it was not fanciful to suggest that the injuries he suffered on this occasion were not caused by the appellant.

10. The complainant was then asked about the sentencing proceedings for his crimes in the District Court in front of Judge Tupman. It was put to him that she found that he had given false or deliberately misleading evidence, and his answer was he could not recall. He then gave numerous answers about Judge Tupman being a friend of his ex-girlfriend and how he had dinner with her. This is another example of a highly evasive answer.

11. Next he was asked about the more recent disputes between he and his brother and sister concerning a power of attorney for his father. At T62.32 he again takes on the role of counsel rather than witness by answering the questions concerning what appear to have been in other proceedings by saying this is not the tribunal. The short point is it is another example of not answering the question. The question at that point was simply whether he knew that his brother and sister had been given power of attorney the answer to which might be expected to be yes, or no or I do not know, but instead he states detail of disputes concerning the Supreme Court and the Health Complaints Commission.

12. The next question was to put the proposition that he was in a bitter dispute with his brother and sister to which he made the response “my father is dead. He was killed by them”. That response can be considered outrageous because it is plain from the evidence in the case the father died in palliative care in hospital following an illness. Perhaps more telling is that this comment made at T 62 is totally in line with the allegations that the appellant makes as to what was being said to him by the complainant at the time of this alleged incident, and which the complainant denied; see eg T82.15-.20.

13. Those assertions are repeated in the following answer. The complainant states that “they” which I take to include the appellant wanted his father dead, something apparently achieved by placing an elderly ill person in palliative care. On the available evidence this is scandalous baseless assertion.

14. It was then put to him that his injuries were not caused by his brother. Objectively viewed the answers given here are sensible, namely that he said he’s not in the habit of flagellating himself. He agreed that it would be outrageous to suggest that somebody would cause their own injuries. Yet he then agrees that he has alleged that his sister hurt herself and then tried to blame him. In some respect this is of little assistance; just what the sister did, or more to the point just what he might allege he sister might do is irrelevant but it does show the complainant in giving sworn evidence making an assertion in general terms to one effect and then in the next breath asserts as fact the opposite in respect of a particular matter.

32. I have noted above the benefit the magistrate has been observing the demeanor of the witness. Nevertheless the obligation upon me in determining this matter is, whilst taking into account that advantage, to arrive at my own conclusions based on the evidence. I do not consider the complainant to be a satisfactory witness.

33. This is a case where the characteristic of the injuries being shown to police soon after the alleged event dominate the initial impression of the matter. It could fairly be said that to a significant extent with evidence like that the need for the complainant to be a compelling witness is dissipated. The parties were in close proximity on horseback and the appellant admits he cracked the whip once in close proximity. Less than an hour later the person without the whip presents to police with whip like injuries. Case closed one might think. That does not however relieve the factfinder from the task of applying the relevant principles in determining the facts of the matter.

34. A point made by both parties was the speed with which the parties both reported the matter to police. It can be said adversely or favorably to a party that this reflects their desire to get on the record first on the one hand or alternatively the genuineness of their complaints. I do not see that a great deal turns on this in the overall factual mix of this case.

35. The magistrate dealt with the evidence of the appellant commencing at T26.44. It is at T-28.42 that he recounts the evidence of the appellant saying to his brother that “Get off my farm. You killed my father. You’re a father killer or murderer. Get off my farm. I’m going to get you.” The complainant denied saying this; the magistrate does not deal further with this difference in evidence and as already noted above this is the very type of language used by the complainant in his sworn in court evidence.

36. The magistrate rejected the version of events given by the appellant for reasons stated at T29.50 and following. There were two particular reasons. The first was that in the magistrate’s view it did not follow that if the complainant was riding a lame horse why did he not simply ride away. In hindsight that of course is a very sensible thing to do. But in the heat of a moment with a person, your brother, riding a horse toward you and yelling abusive words whilst you are on your recently deceased father’s property to crack the whip does not seem to me to be out of order and of course after cracking the whip riding away was exactly what the appellant said he did. This evidence is not a reason in my view to reject the version given by the appellant.

37. The second reason was because in answer to one of the last questions put by the prosecutor which was at T20 there was this:

Q: that whip made a contact with his back as he was trying to leave didn’t?

A: not to the best of my knowledge no.

38. The magistrate has characterised that answer as equivocal or more accurately “somewhat equivocal compared to the unequivocal denials given in evidence in chief”; see T30.11.

39. Beyond those two points there is no criticism made of the manner in which the appellant gave his evidence. Indeed his cross-examination was quite brief. A review of that evidence commencing at T17 shows that the manner of giving evidence of the appellant was in stark contrast to that of the complainant. His answers are direct, short, responsive and to the point.

40. At T20 It was put to him that he could have ridden away and he said he did ride the horse away and kept circling away from him. It was then put to him on three occasions that he had struck the complainant with the whip and on each occasion he said “no I did not”. It was then put that the whip made a contact with the complainant’s back as he was trying to leave and the answer given was “not to the best of my knowledge no”. That is the answer on which the magistrate placed much emphasis. Then at T21 it was again put to him two further times that he had struck the complainant with the whip and on both occasions he replied “no I did not”. Thus he is asked the same question six times and on five occasions he expressly answers “no I did not”; on the fourth occasion of asking he states “not to the best of my knowledge”.

41. The consideration that arises is whether that fourth answer equates to a qualification. Or as the magistrate put it is it equivocal, that is does it allow for the possibility that the appellant is saying that it is possible that he did strike the complainant.

42. The view taken by the magistrate is understandable. Yet when all of the evidence is considered and I have just now referred to the multitude of times of the question being asked in cross examination, my view is that it places far too much emphasis on the witness simply giving the same answer in another form of words when faced with the question repeatedly. It should also be borne in mind that he gave his version of events in chief including the express evidence that the whip did not come in contact with the complainant; see at T14. Indeed he gives a version of events preceding that answer as to what occurred at the time of the interaction with the complainant which is barely challenged in cross-examination and is largely accepted in the way that cross examination was conducted.

43. To be added to this is the fact that the appellant is a man of good character. He is now 61 years of age and, based on the evidence of SC Harris, is not known to police other than for the present matter. That evidence plus the way which he has sought to care for the cattle as demonstrated by the evidence concerning Dr. Ross shows that he is a man of good character which subject to other evidence aids his credibility.

Conclusion

44. Applying the Liberato direction, and having considered all of the evidence, the version of the facts given by the appellant is a version in which I consider may be true. I come to that conclusion based on my findings that he is a witness who gave consistent evidence in an appropriate manner and whom I find credible.

45. As already noted more than once the difficulty always for the appellant in this case was the fact of the injuries exhibited by the complainant when he attended the police literally within approximately one hour of the alleged event. Yet when the analysis of the complainant’s evidence is undertaken as set out above his evidence can be seen to be in a fairly wide range of ways unreliable. He is also a person with a significant background of dishonesty. This is a case where there is a significant degree of animosity between the parties who are family members. The difficulty for the appellant of the fact of the injuries dissipates when it becomes appreciable that the likelihood of the injuries that were evident being caused other than by the appellant increases given the involvement of the complainant. This is because he has shown himself to be deceitful in the past and also because he has shown himself to be an unsatisfactory witness.

46. The legal point of the appellant focused on guarding against reversing the onus of proof and in that regard focused on the Liberato direction. On the findings that I have made and although it might be a consideration arising after considering the Liberato direction, a more simple way of deciding this matter, which is intertwined with the Liberato consideration, is to conclude that the complainant is not a credible witness. The reasons for that have been detailed. For the Crown case to succeed the evidence of the complainant must be accepted. It follows that the Crown has failed to make out the elements of the offence beyond reasonable doubt.

47. In terms of the approach to a s18 appeal, this conclusion is what I consider to be the correct result having reviewed the evidence that was before the magistrate. I also consider the magistrate has erred in his assessment of the evidence of both the appellant and complainant, including in particular by finding the complainant to be a compelling witness, and by placing too much emphasis on the answer of the appellant that the magistrate, in my view wrongly, characterised as equivocal. Consequently the conclusions reached by the magistrate upon the application of the Liberato direction, and in considering whether the Crown case made out the charge, were erroneous.

Orders

1. Appeal allowed

2. Conviction and sentencing orders set aside.

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Decision last updated: 30 October 2025