Police v NH

[2024] ACTMC 20

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Police v NH
Citation:	[2024] ACTMC 20
Hearing Date:	7 December 2023
Decision Date:	15 February 2024
Before:	Special Magistrate Richter
The defendant found not guilty.
Decision:
Catchwords:	CRIMINAL LAW – Violent offences – common assault – Family
Violence Evidence in Chief interview – English as a second language – consent
Legislation Cited:	Crimes Act 1900 (ACT) s 26(1)
Evidence Act 2011 (ACT) ss 38(1)(a), 38(1)(c), 38(3) Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 51(3)(b)
Cases Cited:	McElholum v Hughes [2015] ACTSC 78
Parties:	Rohan McDonald (Informant)
NH (Defendant)
Representation:	Counsel
T Whybrow (DPP) K McGowan (Defendant)
Solicitors
ACT Director of Public Prosecutions
Legal Aid ACT (Defendant)
File Number:	CC 5493 of 2023

SPECIAL MAGISTRATE RICHTER

1.    The defendant has pleaded not guilty to the following charge:

That he, in the Australian Capital Territory on 29 May 2023, did assault LH and the offence involved family violence, pursuant to section 26(1) of the Crimes Act 1900 (ACT).

General directions

2.    I remind myself that I must find facts, draw inferences from them, and apply the

law to the facts that I find. I must bring an open and unbiased mind to the

evidence and view it clinically and dispassionately and not let emotion enter

into the decision-making process. Both the prosecution and defendant are

entitled to my verdict free of partiality, prejudice, favour or ill-will. I must deliver

my decision according to the evidence.

3.    The prosecution bears the onus of proving the guilt of the defendant. The

defendant does not have to prove that he did not commit the offences charged.

4.    The standard of proof for the prosecution is proof beyond reasonable doubt,

and the defendant cannot be found guilty of an offence unless the evidence

satisfies me beyond reasonable doubt of his guilt for each element of the

offence.

5.    If the evidence, which I accept, fails to satisfy me beyond reasonable doubt of

any or all of the elements of an offence, then I must dismiss the charge.

6.    If I am satisfied that there may be an explanation consistent with the innocence

of the defendant, or I am unsure of where the truth lies, I must find the charge

has not been proven to the requisite standard.

7.    I need to consider the reliability of each witness’s evidence. I can accept all,

part, or none of a witness’s evidence.

The relationship

8.    The defendant and the complainant are married and have a daughter who was

aged 16 years at the time of the incident which gave rise to this charge. They

are family members as defined by the relevant legislation.

9.    Because of a disagreement between the defendant and the 16-year-old

daughter, the defendant and the complainant had an argument which resulted

in the complainant leaving the family home.

10. At about 11.25pm on 29 May 2023, police attended at the light rail station at

Manning Clark Crescent where they located the defendant asleep on the

bench.[1]

[1] TX P36 Constable Stoney.

11. Upon being woken up by the police, they observed that the defendant smelled

of alcohol and appeared to be intoxicated.[2]

[2] Ibid.

12. At about 11:40pm, the complainant and her daughter also arrived at the light

rail station. Police spoke with the complainant. As a result of that

conversation, they obtained CCTV footage from an incident earlier in the night

involving the complainant and the defendant.

13. That CCTV footage showed an interaction between the defendant and the

complainant which spans some 7 minutes 10 seconds and shows an argument

between them with the defendant touching the complainant. The prosecution

relies on that touching for the charge of assault.

Particularisation

14. In her opening, the prosecutor particularised that the conduct relied upon was

the defendant:

(a) grabbing the complainant’s arms,

(b) touching her,

(c) moving her legs,

(d) swiping at her face,

(e) placing his forehead against her forehead,

(f) grabbing her breast, and

(g) holding her arms down.[3]

[3] TX P3, L15.

15. Each of those acts occurred whilst the complainant was seated on the bench at

the light rail station.

CCTV footage

16. The CCTV footage obtained by police was tendered in its entirety as Exhibit

P1. That footage covers a period of 1 hour 35 minutes. The whole of that

footage was played during the course of the hearing in this matter.

17. There is no soundtrack to the CCTV footage. It is obvious from the footage that

the parties are speaking to one another, however, it is not possible to tell what

was being said.

18. At 1 minute 43 seconds the complainant arrives on her own carrying a

handbag and a large plastic shopping bag and sits on the bench at the light rail

stop.

19. At 6 minutes 21 seconds the defendant arrives. At that time, the complainant is

either ignoring the presence of the defendant or has not seen him, but in any

case, the defendant has taken hold of the plastic bag and removed it from her

hand. She does not appear to resist this action.

20. From there, there are a number of occasions on which the defendant has

attempted to take the hand of the complainant with her pushing his hand away.

This conduct goes on throughout that portion of the video evidence where both

the complainant and the defendant are present.

21. At 8 minutes 40 seconds, the defendant waves his open hand towards the face

of the complainant. In doing that gesture he does not make contact with her.

The complainant has responded by making a similar gesture three or four

times.

22. At 9 minutes 22 seconds, the defendant places his forehead against the

forehead of the complainant. Interestingly, that occurs after breaking contact

between them and a conversation which can be seen to occur between them.

The touching of the complainant’s breast appears to have occurred

contemporaneously with the meeting of their foreheads.

The complainant’s evidence

23. The complainant’s evidence was received by the tendering of a Family

Violence Evidence in Chief (FVEIC) interview conducted by police on 30 May

2023 (Exhibit P2). A transcript of that interview was prepared by the

prosecution (Exhibit P3).

24. The FVEIC was tendered in its entirety. In accordance with s 51(3)(b) of the

Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act), it was not

edited in any way.

25. The complainant gave further sworn evidence. Unusually, she had expressed a

desire to give evidence in the court room and I made an order under s 68(2) of

the EMP Act to enable it to occur.

FVEIC

26. In the FVEIC interview, the complainant denied that there was any assault.

Given the position taken by the prosecution, it is important that some specific

portions of the interview are considered:[4]

[4] Exhibit P3 – P4,5.

Q.	At the tram stop, what happened?
A.	Yeah there was, I was waiting for the tram, it was about 10 to 11 minutes, and my husband came over there, and he told me to come back home. And I

told him that I’m not coming home for a night, I am going to my brother’s

place. And he was, not to let me go he, he was [gestures] what’s it called -

stopping me to ride on the tram. Yeah.

Q.	How was he doing that?
A.	Um basically he was I was sitting on the corner. And he was just closing the middle [gestures] the bench. Because I was sitting on the bench and he was just closing me like this. But there was no forcefully. I can assure you that there was no assault, he was just like stopping me like this, like holding the bench.
Q.	Okay. Now did he say anything to you?
A.	He said me, like to come back home. And do not do this, do not go. Like that yeah. Because I never left the house before. This is the first time. So he just said me to can I go home um because daughter will be sad, like that you know. That I listen to the daughter and come back home. And yeah he said that.
Q.	Okay. How are you feeling when he was doing that?
A.	Um, normally I wasn’t, intentionally, I didn’t want to leave the house, but only

to, for my anger issues. Something too I got anger with my husband and I

just wanted to leave him so he understand that, um, what’s it called, actually

I didn’t feel anger I wanted daddy to listen, I didn’t feel anger or something

like that. We have never assaulted anyone or each other we just have a verbal argument sometimes yeah.
Q.	So verbal argument?
A.	Uh-huh.
Q.	So at any time, did he touch you?
A.	No. He didn’t.
Q.	Did he try to touch you at any time?
A.	Not in a bad way. Not in a bad way.
Q.	How do you mean?
A.	Like sometimes when you do have an argument, people have kicking and

punching, like that. But we didn’t have that, I mean fighting like that.

Touching means like if someone is trying to make you understand like

people can touch you like, you know [gestures] like what’s it called, but it’s not punching. There’s like, I have never punched or assaulted from my

husband, did not do this here.

Oral evidence

27. In her oral evidence, the complainant was shown both the CCTV footage

(Exhibit P1) and her FVEIC interview (Exhibit P2).

28. She was asked what she understood an assault to be[5] –

[5] TX P7, L15.

Q.	Is what you understand assault to be what you just said: hitting, kicking, pushing?
A.	Not even touching, you know, that way. Because I know what is bad touch and what is good touch. Sometimes people can touch you with, like, you know, like comforting to other people. You cannot say that this the bad

touch. That that’s a bad touch. So maybe my husband touched me, but it’s

not in a bad way. Like, asserting or forcing me to.

29. After having viewed the CCTV footage (Exhibit P1) she was asked questions in

relation to what she had observed in that footage:

Q.	Do you see touching by [the defendant] in that footage?
A.	Yes, but I was in safe side. So he didn’t touch me in a bad way. I didn’t feel

unsafe - because - yes, I-because he is my husband, and he was just consoling me to come back to home. And it was not bad touch, so I was feeling safe at the time.

30. On being questioned as to whether she was consenting to the defendant

touching her in this way, it became apparent that she did not understand what

the word ‘consent’ meant and further when asked whether she was allowing

the defendant to touch her in that way her answer was ‘yes’. She described it

as being normal behaviour when someone is trying to console you.

31. When asked about the discussion that was occurring during the course of the

CCTV footage her answer was:[6]

[6] TX P15, L5 and L35.

At that time, because I was just trying to give him, like, the- I don’t know that word-

tantrum to my husband.

32. She further described that as ‘throwing a tantrum to her husband’ that she is

leaving, but her intention was not to leave at the time.

33. She describes that when she was pushing the defendant’s hand away when he

was reaching out to her that this was normal.

34. As to her statement that she was ‘having a tantrum to her husband’, I

interpreted that to mean that she was making a demonstration of her

displeasure with him. She accepted that description when it was put to her.[7]

[7] TX P29, L30 – 45.

Prosecution applications

35. The prosecution made an application pursuant to s 38(1)(a) and (c), as well as

s 38(3), of the Evidence Act 2011 (ACT) on the basis that the evidence she

had given was in conflict with the FVEIC interview and adverse to the

prosecution case.

36. In mounting that argument, the prosecution relied on an answer contained in

the FVEIC interview which denied the defendant putting his hands on her.

However, when considered in conjunction with the preceding question and

answer, it was apparent that the complainant has differentiated between

touching in a bad way and touching in a way which was not bad to her mind.

37. This then gave rise to some concern about the complainant’s language

capacity in English. This issue was not dealt with by the police prior to

conducting the FVEIC interview, and it appears not to have been considered by

the prosecution when having her attend court to give evidence.

38. The complainant gave evidence that she was born in Nepal and has lived in

Australia since 2009 (14 years). She speaks Nepali mainly, and English

second. She speaks Nepali in the home and only resorts to English when she

is required to.[8]

[8] TX P14.

39. I refused leave for the prosecution to cross-examine the complainant pursuant

to s 38(1)(a). However, I granted leave to adduce any prior inconsistent

statement pursuant to s 38(1)(c).[9]

[9] TX P19 – 21.

40. The cross-examination of the complainant did not produce any evidence of

note.

The defendant’s case

41. The defendant did not give evidence during his hearing, nor was he required to

do so. No inference adverse to him can be drawn from his decision to exercise

his right to silence. Nor can the absence of evidence from the defendant be
used to fill in any gaps or used as a makeweight for any deficiency in the

prosecution case.

Assessment

42. In this case, there is no factual dispute. The actions of both parties are clearly

shown on the CCTV. The issues are:

(a) Are the actions of the defendant such that they constitute an assault on

the complainant.

(b) If so, did the complainant consent to that assault.

43. In viewing the CCTV, I gained a clear impression that the complainant was

angry, and that anger was directed toward the defendant. However, whilst

angry with him, she appears to engage with the defendant.

44. Throughout the interaction the parties are speaking with one another. There is

no evidence before me as to what was said, however, the complainant’s

evidence is that they were speaking Nepali.

45. The acts particularised by the prosecution (see [14]) are each, on their own, a

minor application of force by the defendant to the complainant. The prosecution

was not called upon to particularise what specific act amounted to the assault

complained of, however, by closing submissions the prosecution case

focussed on the act of the defendant placing his forehead on the complainant’s

forehead and touching or grabbing her breast.

46. This then gives rise to two issues: the first being the reasonableness of the

actions and the concept of implied consent to touching in some circumstances.

47. To determine whether an action constitutes assault requires a focus on the

precise terms of what was occurring and whether the actions constitute

something more than simply going about one’s daily life: see McElholum v

Hughes [2015] ACTSC 78 at [186] –

[…] persistent touching to gain attention in the face of obvious disregard may

transcend the norms of acceptable behaviour and so be outside the exception. We do not say that more than one touch is never permitted; for example, the lost or distressed may surely be permitted a second touch, or possibly even more, on a

reluctant or impervious sleeve or shoulder […]

48. Each of the individual touches which occurred over the space of 7 minutes 10

seconds captured in Exhibit 1 is a minor encroachment on the complainant.

49. When considering what is a ‘norm of acceptable behaviour’, it is important to

take into account the context or relationship between the parties. In this case,

the parties are in a long-term relationship and a continued minor touching to

emphasise a point, to obtain a reaction or to give comfort may be appropriate,

whereas the same actions to a stranger may not.

50. The second issue is whether the complainant has consented to the physical

touching. Her clear evidence is that she did. The prosecutor submits that I

should set that to one side and decide based on the CCTV that consent was

lacking. The logic for that position is that it is clear on the CCTV that the

complainant was angry with the defendant.

51. Because English is her second language, the complainant struggled to

understand the word ‘consent’. On direct questioning by the prosecutor, using

simple English, the complainant’s position was made clear:

Q.	Were you allowing NH to touch you that way?---
A.	Yes. Yes, yes.

52. There is an important distinction to be made between being happy with a

circumstance and consenting to it.

53. In the circumstance of a long marriage, where the complainant was making a

demonstration of her displeasure with her husband, it is not beyond

comprehension that the complainant may consent to her husband touching her

in the ways seen on the CCTV but continue to manifest her anger toward him.

54. The evidence of the prosecution in this case fails to convince me of the

defendant’s guilt beyond a reasonable doubt. Accordingly, I find the defendant

not guilty.

Orders

55. I find the defendant not guilty.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Richter.

Associate: C Ammett

Date: 23 September 2024