Motuga v Cassidy - [2022] NTSC 31

CITATION:Motuga v Cassidy [2022] NTSC 31
PARTIES:MOTUGA, Rimoni
v

CASSIDY, Craig

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 1 of 2022 (22112120)
DELIVERED:  13 April 2022
HEARING DATE:  7 April 2022
JUDGMENT OF:  Riley AJ

CATCHWORDS:

CRIME – Appeals – Appeal against verdict – Appeal from Local Court to Supreme Court – Unsafe and Unsatisfactory – Unreasonable verdict – Acted out of jurisdiction – No jurisdiction to conduct summary hearing – Appeal dismissed – Local Court (Criminal Procedure) Act 1928 NT s131A
REPRESENTATION:
Counsel:
Appellant:J Stirk
Respondent:  S Thomas
Solicitors:
Appellant:Povey Stirk
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Judgment ID Number:  Ril2203
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Motuga v Cassidy [2022] NTSC 31

No. LCA 1 of 2022 (22112120)

BETWEEN:
RIMONI MOTUGA

Appellant
AND:
CRAIG CASSIDY

Respondent

CORAM: RILEY AJ
REASONS FOR JUDGMENT
(Delivered 13 April 2022)

On 1 December 2021 in the Local Court, the appellant was found guilty of unlawful assault contrary to ss 188(1) and (2) of the Criminal Code. He now appeals that verdict on the grounds that it was unsafe and unsatisfactory and, further, that the proceeding in the Local Court miscarried for want of jurisdiction.
The Crown case was that on 5 March 2021 the appellant and his co-accused, Gasolo Gasolo, were employed at Lasseters Casino as senior security managers and were licensed to undertake that function. During the course of the night the appellant requested a patron, Raymond Coull, to leave the Casino believing he was intoxicated. Mr Coull was reluctant to leave and the appellant took hold of him by the right arm and escorted hi up some stairs within the Casino precinct. He resisted and kicked out at the appellant’s left thigh with his right leg and the appellant then took him to the ground where he landed on his stomach and face. Mr Coull dropped a beer bottle in the process of falling which he then picked up and threw upwards striking the appellant on the left side of his forehead. The appellant radioed for assistance and was joined by another security guard. Together they lifted Mr Coull from the floor and while he was being escorted toward the main entrance, he thrust his head backwards and to the right connecting with the appellant’s face. He was then taken to the ground by the two security guards. Mr Gasolo and a further security guard arrived to assist and the four security guards together carried Mr Coull toward the main entrance. As they did so a side door was opened and the guards took Mr Coull into a private corridor and the door was closed. There was no CCTV coverage in that area. Two of the guards departed and Mr Coull was alone in the corridor with the appellant and Mr Gasolo.
The agreed facts placed before the Local Court included that on the night, Mr Coull suffered fractures to his 6^th to 11^th ribs with blood and air in his chest cavity, a left periorbital swelling, abrasions of his right wrist and soft tissue swelling to the right elbow. It was the Crown case that those injuries were the result of an unlawful assault by the appellant and Mr Gasolo acting in concert. The Local Court Judge found, beyond reasonable doubt, that the injuries were suffered by Mr Coull at the hands of the appellant and Mr Gasolo in the private corridor area which was not open to surveillance by CCTV cameras.
The Crown relied upon the CCTV footage of Mr Coull in the public area of the Casino and contrasted that with the footage of him as he left the private area which, it was submitted, was consistent with him suffering the injuries whilst in the private area.
The evidence of Mr Coull was that he was assaulted when he was in the private area with the appellant and Mr Gasolo by being kicked multiple times to the ribs. He also said he was kicked or punched to the face. The account of the appellant was that when they entered the corridor, Mr Coull went facedown and started banging his head on the ground and “punching his head on the concrete” which he corrected to say “carpet”. When they released him he started kicking again and punching them and three or four times he got to his feet and they had to put him down. Mr Gasolo gave evidence that when they went through the door, Mr Coull fell to the floor and started hitting his head. He was kicking at them. They just picked him up and then he would drop and he did that on a number of occasions.
When Mr Coull returned to the public area he sat on a couch where he engaged with Mr Gasolo and at some point spat upon him. Mr Gasolo then assaulted Mr Coull by delivering a blow or blows to him. Mr Gasolo was convicted of a separate assault in relation to this occurrence. Mr Gasolo has not joined this appeal.
Ground 1 – unsafe and unsatisfactory
In relation to the ground of appeal that the verdict was unsafe and unsatisfactory, the appellant contends that the Local Court Judge erred in rejecting the possibility that the injuries suffered were a consequence of Mr Coull falling to the floor at the top of the stairs within the Casino and/or by falling and self-harming in the corridor and/or in the assault by Mr Gasolo upon him which led to the second conviction of Mr Gasolo. Further, it is asserted that his Honour erred in determining that the injuries referred to in the agreed facts could not have occurred as a consequence of the falls/assault and in so doing his Honour reached “medical conclusions which were not qualified by an expert”.
Relevant Principles
The principles applicable to an appeal based upon unreasonableness have been much discussed over the years. The discussion has largely referenced “the jury” as the finder of fact but, in the present case, the Local Court Judge is the relevant finder of fact.
In M v The Queen,[1] Mason CJ, and Deane, Dawson and Toohey JJ stated:
The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.
….
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witness. On the contrary, the court must pay full regard to those considerations.
In R v Baden-Clay,[2] the High Court observed:
Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the (appeal) court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.

As has been observed, a court of appeal must pay full regard to the fact that the tribunal of fact had the benefit of seeing and hearing the witnesses. In the recent case of Pell v The Queen,[3] it was said that:
The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness box. … Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function. In this context, the function of this Court is determining whether the verdict of the jury is unreasonable.
Further, in that case, the Court said that a court on appeal “proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable” in so far as that evidence was accepted. The court then examines the record to see whether, notwithstanding that assumption, there were inconsistencies, discrepancies or other inadequacies which ought to have led the jury to entertain a reasonable doubt as to proof of guilt.[4] In so doing, the advantage of the jury, or in this case the Local Court Judge, in seeing the whole of the evidence placed before the trial court must be given full regard.
The evidence
The significant evidence led in the Local Court included that from Mr Coull and Mr Gasolo. The appellant did not give evidence or call any evidence in support of his case. His version of events was before the court by virtue of an electronic record of interview and a statement by the appellant to police, which was tendered (Ex P7), complaining about the behaviour of Mr Coull and seeking to have him prosecuted for assault.
In addition, evidence was received from other witnesses including from a friend of the complainant, the duty manager of the gaming department at the Casino, two security guards, a staff member at the venue and the officer in charge of the investigation. None of those witnesses were present at the time of the alleged assault in the corridor. One of the security guards, Felise Naufahu, gave evidence that he was in a nearby office and, whilst he did not see the alleged assault, he heard struggling and moaning as though Mr Coull was in pain. He heard swearing, banging on the wall, and “cussing”.
The evidence of Mr Coull was that he was asked to leave the Casino by a security guard, that he was then grabbed from behind and thrown to the floor. He said he was then “swarmed by other security guards and carried into a room”. He recalls “being kicked repeatedly in the ribs”. His memory after that is vague but he ended up in hospital for a number of days and was treated for the injuries which are the subject of agreement. In cross-examination he agreed that when he was being escorted through the public area of the Casino and went to the ground he threw his leg back and he also threw his beer bottle into the face of the security guard. He agreed he was angry at being thrown to the floor. He thought the private area to which he was taken was a room rather than a corridor. It was put to him that upon entry to the area he fell to the floor and was hitting his head on the floor and he firmly disagreed with those propositions.
Mr Coull was also cross examined regarding a statement he had made shortly after the event and whilst he was still in hospital. It contained differences from the evidence he gave at the hearing, for example that he had been sitting on a lounge chair in the corridor (or room as he described it) when he was attacked. However, he maintained that events occurred as he stated in his .evidence. In the reasons for decision the learned trial Judge considered the witness may have been conflating the events that occurred in the foyer where, as is not disputed, he was seated on a couch and assaulted, with the events that occurred in the corridor.
The evidence of Mr Gasolo was that whilst they were in the corridor, Mr Coull fell over four times and was deliberately hitting his head against the floor attempting to hurt himself. He denied that Mr Coull was kicked or punched and confirmed that no-one fell on his ribs. Mr Gasolo described an incident after they emerged from the corridor in which Mr Coull spat blood at him and Mr Gasolo hit Mr Coull. That is the subject of the separate assault count.
In his statement (Ex P7) the appellant referred to them being in the corridor and Mr Coull having continued to resist and being taken to the floor three times. He said each time this happened Mr Coull would hit his head on the floor and kick out with his feet. In his electronic record of interview the appellant denied that he had punched or kicked Mr Coull when they were in the corridor. He stated that Mr Coull was hitting his own head on the floor.
Consideration
The appellant submitted that, on the basis of the evidence presented, the Local Court Judge should have experienced a reasonable doubt that the injuries suffered by Mr Coull were not as a consequence of his falling to the floor at the top of the stairs within the Casino, or by falling and self-harming in the corridor or by virtue of the later assault by Mr Gasolo which is recorded on CCTV. It was argued that in concluding that the injuries were suffered in the corridor, his Honour reached medical conclusions which were the province of a medical expert and which his Honour was not qualified to reach. There was no expert evidence as to the mechanisms by which the injuries to the ribs may have been caused.
It was submitted that the evidence of Mr Coull was not credible or reliable emphasising that he acknowledged that he did not have a clear recollection of some matters and disputed matters of which he had no recollection. There were some contradictions in his evidence. Indeed, as the appellant points out, his Honour noted that this evidence “was in many aspects flawed”. However, it is not correct to say that his Honour found Mr Coull to be “unreliable” in relation to all matters before the court.
The learned Judge carefully considered the whole of the evidence of Mr Coull, finding that much of his recollection was “pretty poor” probably due to his intoxication, his injuries and the effluxion of time. His Honour concluded that Mr Coull understated his appalling behaviour on the night which was described as aggressive and “clearly obnoxious”. Notwithstanding those matters his Honour noted that in relation to the essential elements of the offence, Mr Coull was adamant that he had been taken into the corridor and assaulted by being kicked multiple times to the ribs. His Honour found this to be credible evidence and did so beyond reasonable doubt.
In relation to the evidence of Mr Coull the learned Judge observed:
(Mr Coull) has given, in my view, poor evidence in detail. But particularly, in my view, strong evidence in detail that he was – not in detail but in certainty as to how he felt he got his broken ribs. And that was by being kicked multiple times in the ribs. Which is consistent with the evidence of the moaning and groaning, is consistent with the sort of severe blow one could expect in a confined space, which clearly it was a confined space. Clearly where there was no other object or place or certainly no object or evidence of either defendant coming down on him accidentally landing on him in such a way that he could have had such a severe injury.
There was objective evidence to support the Crown case that the injuries to the ribs occurred in the corridor. The first is the admitted injuries to the ribs which are not otherwise explained. The events caught on CCTV footage do not explain those injuries. The fall at the top of the stairs is not of the kind that would cause any serious injury. It was more of a stumble to the floor. The vision of Mr Coull following that fall or stumble does not suggest any injury at all at that time.
The versions of events provided by Mr Gasolo and by the appellant of what took place in the corridor do not explain the injuries. Those versions which, inferentially, were not accepted by his Honour in any event, do not include anything which would cause injury to the ribs but, rather, refer to Mr Coull falling and banging his head against the floor in an effort to self-harm. Those differing versions of events did not give rise to any reasonable doubt on the part of the Local Court Judge as to the reliability of the evidence of Mr Coull regarding the injuries to his ribs.
Further, the CCTV footage referred to by the learned Judge strongly supports the conclusion that the injuries occurred in the corridor. Consistent with the vision, his Honour observed:
So, in that sense the issue is one of direct evidence and the circumstantial element involving how this gentleman who was clearly aggressive, clearly obnoxious, and was carried to a door by four very large, very efficient security officers. Who bundled him and got him to the door in 30 seconds and had him in a position where he was very helpless. We then go off-screen for five minutes when he is left solely in the company of the two defendants. And he comes out the other end of the corridor again into a public place nearly 5 minutes later. And this time he is shuffling, just barely shuffling along with Mr Gasolo pushing him from behind. No need for further restraint. No one holding him down. He was clearly a very, very subdued individual who was placed on a couch in the foyer. And as soon as he was placed he just flopped down and then he was picked up again and he flopped down again.
As the respondent submitted, the learned Judge considered the evidence in full and made findings that were reasonably open to him. His Honour acknowledged that the complainant was confused in some aspects of his testimony and imperfectly recalled others but, on the key issue of whether he was kicked in the ribs by the appellant and/or his co-accused, the complainant was “adamant” about that and that it was “the one thing that he was clear about”.
I have reviewed all of the evidence and find there is a sound basis for the conclusions reached by his Honour. On my review of the whole of the evidence, it was open to his Honour to be satisfied beyond reasonable doubt that the appellant was guilty. In my opinion the submission of the appellant that the verdict was unsafe and unsatisfactory as that expression is understood has not been made out.
Jurisdiction
The submission of the appellant is that the learned Local Court Judge did not have jurisdiction to conduct the summary hearing pursuant to s 131A of the Local Court (Criminal Procedure) Act in this case. It was submitted that jurisdiction to deal with the matter on a summary basis required the court to “opine” that the charge should be heard and determined summarily and that did not occur.
The basis of the submission is a series of observations made by Martin CJ in Birkeland-Corro v Tudor-Stack,[5] in which his Honour dealt with certain provisions of the Justices Act and in particular s 131A of that Act. However, that section has been repealed and a significantly amended section is now part of the Local Court (Criminal Procedure) Act. As the respondent submits, and as the second reading speech and the explanatory statement confirm, the very purpose of the repeal of the former section and its replacement with the new section was to “reverse the effect of the Supreme Court’s interpretation of s 131A as set out in Birkeland-Corro v Tudor-Stack”. The section is now in the following form:
Certain assault and harm offences may be dealt with summarily
(1) Subject to subsection (3)(a), the Court may hear and determine the charge of an indictable offence summarily if the offence is an offence against section 186, 188(2), 188A or 189A(1) or (2)(a) of the Criminal Code.
(2) The prosecutor or the defendant may apply to the Court, before the Court exercises its jurisdiction under subsection (1), for the charge to be heard and determined by the Supreme Court.
(3) The Court may exercise the jurisdiction under subsection (1)(a) only if the Court is of the opinion that the charge should be heard and determined summarily; and (b) whether or not the defendant consents to its exercise.
In this case it is plain that the requirements of the section as amended were fulfilled. There is no requirement for the Local Court Judge to proclaim that the matter should be heard and determined summarily. The issue of whether the case should not be heard and determined summarily was not raised by experienced counsel appearing before his Honour and all parties proceeded on the basis that this was the desired course. There was no suggestion of an application pursuant to s 131A(2).

This ground of appeal is not made out.
The appellant belatedly raised the issue of whether there was an evidentiary basis for the finding of common purpose. This was not raised as an issue in the Local Court. His Honour dealt with it by observing that both guards were together and Mr Coull was in their joint care and control and concluded that, in all the circumstances, “whoever did the kicking was in concert with the other”. There was no evidence to suggest that this was not such a case and no submission was made to the Local Court to that end.
The appeal is dismissed.

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[1] (1994) 181 CLR 487 at 492-493.

[2] (2016) 258 CLR 308 at [66]. There is a useful summary of many of the relevant authorities by Blokland J in Mahendra v Court [2020] NTSC 16.

[3] Pell v The Queen (2020) 94 ALJR 394 at [37].

[4] Pell v The Queen (2020) 94 ALJR 394 at [39].

[5] [2005] NTSC 23.