R v Death

[2019] NSWDC 682

District Court

New South Wales

Medium Neutral Citation:	R v Death [2019] NSWDC 682
Hearing dates:	24 October 2019
Date of orders:	24 October 2019
Decision date:	24 October 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	I allow the appeal and I find the appellant not guilty.
Catchwords:	CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction
Legislation Cited:	Crimes (Appeal and Review) Act 2000 Crimes Act 1900 Supreme Court Act
Cases Cited:	Charara v R [2006] NSWCCA 244 Dyason v Butterworth [2015] NSWCA 52 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hughes v R [2017] HCA 20
Category:	Principal judgment
Parties:	Anthony Death (Appellant) Regina (Respondent)
Representation:	Solicitors: M Cronin (Appellant) R Endacott (Respondent)
File Number(s):	2019/00057365
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Albury Date of Decision: 11 September 2019 Before: Magistrate Brender File Number(s): 2019/00057365

Judgment

1. Mr Death appeals against a finding of guilt of assault occasioning actual bodily harm, domestic violence related, contrary to s 59(1) of the Crimes Act 1900 by Local Court Magistrate Brender on 11 September 2019.

2. The appeal is brought pursuant to s 18 Crimes (Appeal and Review) Act 2000. An appeal against conviction is a rehearing based on the transcript and exhibits in the court below. A s 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244 at [16] – [24]; Dyason v Butterworth [2015] NSWCA 52 at [26].

3. The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 where the judge is to form his or her judgment of the facts recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court: Dyason at [27]. The powers of the District Court on a s 18(1) rehearing are exercisable where the appellant demonstrates that the order, the subject of the appeal is the result of a legal, factual or discretionary error in which the event the appellant can substitute its own decision based on the facts and law as they then stood: Dyason at [28]

4. It is submitted by Mr Cronin who appeared below and appears on this appeal that the decision of the Court is based on a factual error by the learned magistrate.

THE PROSECUTION CASE

5. The prosecution case relied wholly upon the evidence of the complainant, Debbie Maree Pettit. Specifically that evidence comprised the following; domestic violence evidence-in-chief video recorded at premises situation at 9 Gem Place, Lavington on the night of 20 February 2019. Further evidence in chief of the complainant on 26 June 2019, cross-examination of the complainant on 24 July 2019. The prosecution also relied upon photographs of injuries, allegedly suffered by the complainant and the photographs were exhibit number 5. The evidence in chief of the complainant was by way of electronically recorded statement. It was played to the Court on 26 June 2019.

6. She confirmed that what she said in that statement was the truth. In short summary the electronic statement revealed the following. She said that they had been in a relationship for 18 months. They had been to dinner at the Ettamogah Hotel and that she was moderately to heavily affected by alcohol. They went to the appellant’s house. He became, in her words, "abrasive". She decided to call it quits and wanted her keys to return to her house at Wodonga. She said they scuffled, he grabbed her around the neck in a choke hold with his elbow. She went limp, she then bit him several times. She had a T-shirt on and left to walk away. She then picked up a shovel and smashed the all glass door. She then asserted that he grabbed the shovel and used it as a weapon, he was hitting her with the shovel for a good 30 minutes.

7. She was hit by the shovel several times repeatedly to the head by someone who was six foot two and weighed 140 kilos. She was hit by the shovel to the head, back and arms. He placed his foot on her while she was on the ground and kept hitting her. She conceded that the injuries to her arms and legs were caused by the glass from the door. She was not a hundred per cent certain about the order of events. On 25 July 2019, the complainant was cross-examined. In summary the following points were made. After having been shown an aerial photograph she would not accept that there were other properties located within 100 metres of the appellant’s property. At one stage she replied, “I wouldn’t have a clue.”

8. This is to be compared with her assertion in the DVEC that she was in “the middle of nowhere.” She conceded that she was drinking schooners of Carlton Dry at the Ettamogah Hotel, she agreed that she consumed close to six to eight schooners. She said that she was given bipolar medication as a sleeping aid. She has been diagnosed with severe depression and anxiety disorder and she has been on and off medication for those mental health issues for a number of years. She has been on Zoloft and a drug spelt Paroxietine. She was not on her medications at 20 February 2019 and had not been so since December of 2018.

9. She agreed that on an occasion prior to 20 February 2019 she had behaved, “very aggressively” and not only did she assault the accused, she also assaulted Tanya Thiess because she says she was refused her phone and keys. The admission by her to assaulting the appellant and Ms Thiess was more than a credit attack. It demonstrated a tendency upon the part of the complainant to act violently towards others. She said she suffered a massive panic attack then, that is in September, as she said she experienced on 20 February 2019. Both attacks related to her keys.

10. To borrow and paraphrase the words of Gageler J in Hughes v R [2017] HCA 20 at [70], She did it before, that is to act in a violent way over keys, she has a propensity to do this sort of thing again; the likelihood is that she did it again on the occasion in issue.

11. The evidence of the assault upon Ms Thiess was significantly probative in that she was assaulted by the complainant after an unprovoked assault by the complainant on the appellant. She assaulted Ms Thiess after she had “a massive panic attack”. This is consistent with her conduct on 20 February 2019. She has on a previous occasion been violent towards someone who was in possession of her keys and it is she who is the protagonist. It goes directly to the issue that the learned magistrate had to decide, that is, that she did it again on 20 February 2019.

12. The assault of Ms Thiess was in September 2018 and she had “only just been medicated”, it is open to me to infer that her medication was not working properly at that stage and on her admission she had not used her medication since December 2018. This is consistent with her acting violently on 20 February 2019. I note that she denied punching and kicking the appellant. In cross-examination she said that she bit him twice. This was inconsistent with what she told the police, she said she had bit him several times. She was unable to explain how she was able to bite his arm when he was holding her within the crook of his elbow, nor was she able to explain how she bit him on the thumb.

13. There was evidence before the local magistrate that Constable Tallent examined the appellant’s arms and that there were no bite marks. She conceded after she left the house that she returned and threw a rock at the glass door. She did not concede that she threw it ten to 15 times. She did not tell the police in the DVEC that she threw a rock at the door/window. Although she said she did. I have reviewed the DVEC, she did not tell the police that she threw a rock at the window. Under further cross-examination she said she may have forgotten to tell the police, she conceded that after she threw the rock, she grabbed the shovel. This was an example of the escalation of violence on her part.

14. In the DVEC she told the police she was wearing a T-shirt before she smashed the door. In cross-examination she said that she was wearing a nightie, she smashed the window, entered the building and then removed her nightie and left it at the end of the bed before she was attacked. The removal of the nightie after smashing the door makes no sense whatsoever and I reject the complainant’s evidence on this point. She could not explain why she told the police she had a T-shirt on and not a nightie. She conceded that she did not tell police in her DVEC that she went back inside and took her nightie off. She said it was her intention to break the door and retrieve her keys.

15. If this was her intention I ask rhetorically why she would then take her nightie off. She said to put clothes on and get her stuff and leave. I do not accept that explanation. There was nothing stopping her after entering if she was wearing a nightie to leave wearing the nightie after she had obtained her keys. In the DVEC she told the police after she smashed the door, she did not get back inside and the assault occurred outside. This version is inconsistent with the version given in cross-examination that she entered and placed her nightie on the bed.

16. The prior inconsistent statement goes directly to the reliability of the complainant. The authorities require me to recognise the advantage enjoyed by the learned magistrate who heard and saw the witnesses in the lower court. In this case, insofar as the evidence in chief of the complainant is concerned I am in the same position as the learned magistrate due to the fact that the evidence-in-chief was recorded and I have viewed that recording.

THE DEFENCE CASE

17. The defence case relied upon the evidence of the appellant, who elected to give evidence. His evidence-in-chief was on 25 July 2019 and he was cross-examined on that day. The appellant in his evidence in chief and throughout his cross-examination said that the complainant had simply lost control. The appellant stated that the complainant had been on medication for mental health issues and that when she is on such medication she is “the greatest person in the world.” The appellant gave evidence however that the complainant’s behaviour becomes erratic when she is “off her medication.”

18. This is significant in that he had been in a relationship with her for 18 months and had the advantage of observing her during that period of time when she was on and off her medication. The appellant says that upon their return from the Ettamogah Hotel, the complainant attacked him. The appellant says that he grabbed her around the waist to try and control her. He says that he eventually let her go and she left the premises. He says that she was dressed in the clothing that she wore to and from the hotel. The appellant says that he then went to bed. He stated several times in his evidence in chief and under cross-examination that when the complainant loses control, such as on this evening, she generally calms down by the next day.

19. The appellant says that the complainant returned to the premises and charged the large glass door, leading from their bedroom to outside on a number of occasions. He says that the complainant threw a rock at the glass door on a number of occasions. The appellant says that the complainant was naked and eventually he observed her at the glass door striking it with a shovel. The appellant says that the complainant succeeded in breaking the glass door and that the complainant then commenced assaulting him with the shovel. The appellant says that he recovered the shovel from the complainant and used it to keep the complainant away from him.

20. The appellant alleges that the complainant suffered a number of injuries as a result of falling on the shattered glass. Which she said she did in the DVEC. Eventually the appellant was able to subdue the complainant after she had fallen on the ground outside by putting his foot on her chest. This is, as I understand it, is not the allegation of assault. It is the striking by the shovel repeatedly over a 30 minute period that is the alleged assault. The appellant says that eventually the complainant got up and left and drove away in the vehicle in which she had returned to the premises and that the engine of the vehicle was running the whole time.

21. The appellant denied assaulting the complainant and stated that all of his actions with respect to physical contact with the complainant were to protect himself and to subdue her. It is not in dispute that the complainant suffered at some stage one chipped tooth as opposed to broken teeth, as asserted by her. It is one aspect of the appeal that has troubled me greatly. However, the single chipped tooth may have occurred in a number of ways including when she ran and hit the door with force, front on, on a single or several occasions. On the appellant’s version she may have come into contact with the shovel when she was wielding it while smashing the door or coming into contact with the doorframe when she entered the premises or when she went to ground after smashing the door. This list is not exhaustive, there are numerous possibilities.

INJURIES TO THE COMPLAINANT

22. The complainant alleges that she was bashed by a shovel by a powerful, large man for 30 minutes. The timeframe, object and force are not consistent with the injuries sustained. It calls into question the reliability of the witness. Bruising on the neck, the appellant admits placing his foot on her neck when she was on the ground, the injury is consistent with the appellant’s version. The magistrate referred to “blood all over”, the blood came from lacerations to both knees, the complainant said that she crawled through glass in the DVEC, the injuries are consistent with the appellant's and the complainant’s version that she crawled through the glass.

23. The injuries, whilst consistent with some of what the complainant states are also consistent with the appellant’s account. In a situation where both accounts are open on the evidence it leaves a reasonable hypothesis consistent with innocence.

CONCLUSION

24. After a careful review of the evidence, I do not disbelieve the complainant nor do I disbelieve the version given by the appellant. As I am left in that state I cannot be satisfied to the highest standard known to the law that is beyond reasonable doubt. I may have strong suspicions about the conduct of the appellant but that is not proof beyond reasonable doubt.

ORDERS

25. I allow the appeal and I find the appellant not guilty.

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Decision last updated: 20 November 2019