R v Woodside - [2004] NSWCCA 375

No judgment structure available for this case.

CITATION: R v Woodside [2004] NSWCCA 375

HEARING DATE(S): 8 October 2004

JUDGMENT DATE:
3 November 2004

JUDGMENT OF: Studdert J at 1; Sully J at 81; Greg James J at 82

DECISION: Appeal dismissed.

LEGISLATION CITED: Crimes Act, ss 474C, 474L
Criminal Appeal Act, ss 5, 6

CASES CITED: Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606

PARTIES :
Regina v Dorothy Woodside

FILE NUMBER(S): CCA 2004/1956 CCAP

COUNSEL: E. Wilkins (Crown)
M. Thangaraj/C. Evans (Appellant)

SOLICITORS: S. Kavanagh (Crown)
S. O'Connor (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/62/0181

LOWER COURT
JUDICIAL OFFICER : Kinchington DCJ

2004/1956 CCAP

STUDDERT J
SULLY J
GREG JAMES J
Wednesday 3 November 2004

REGINA v DOROTHY WOODSIDE

Judgment

1 STUDDERT J: This matter has come before the Court by way of reference by the Attorney General pursuant to s 474C(1)(b) of the Crimes Act. Section 474B makes provision for a review of a conviction or sentence and s 474C provides relevantly:

“(1) After the consideration of a petition:

……

(b) the Minister may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912…”

2 Before considering the nature of the proceedings on this reference, it is appropriate to record something as to the case the subject of the reference.

3 On 30 May 1997 Dorothy Woodside, to whom for present purposes I shall refer as the appellant, was convicted on two charges of common assault in the Local Court at Bathurst. The appellant appealed against those convictions and the appeal was heard by his Honour Judge Kinchington QC in the District Court. That appeal was in the nature of a rehearing. The hearing occupied ten hearing days, the first of which was on 10 August 1998 and the tenth of which was on 21 August 1998. His Honour reserved his decision, and on 9 November 1998 he dismissed the appeal for reasons then given. To those reasons I shall return.

4 Section 5(1) of the Criminal Appeal Act confers a right of appeal to this court in criminal cases to a person “convicted on indictment”. The appellant here was not so convicted. Section 6(1) of the same Act provides for the determination by this court of appeals under s 5(1). Section 6(1) provides relevantly:

“(1) The Court on any appeal under s 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

5 This court is empowered to act under s 6 “on any appeal under s 5(1)”. This is not such an appeal but rather it is a reference pursuant to s 474C(1)(b), and the decision here sought to be challenged is a decision of a District Court judge made on an appeal from a decision of the Local Court. However, the appellant relies upon s 474L of the Crimes Act, which provides:

in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act

(Emphasis added)

Crimes Act

6 The appellant filed grounds of appeal in this Court which were expressed as follows:

“1. The verdict was unreasonable and cannot be supported having regard to the evidence.

2. The judge erred in failing to consider the common law defence of lawful chastisement.”

7 Ground 1 is, of course, expressed in the language relevant to s 6(1) of the Criminal Appeal Act. Ground 2 was abandoned on the hearing of the appeal. It is necessary for the purposes of Ground 1 to consider what evidence was introduced in the proceedings in the District Court.

The prosecution case at trial

8 The victims of the two assaults were two children who attended the Kelso Kindergarten. I shall refer to these children only as “TB” and as “DT”. It is claimed that each of the children was assaulted whilst under the care of those operating the kindergarten. One of the operators was the appellant, and her partner was her sister-in-law, Lynette Woodside. The appellant had acquired her share in the business from Delma Field, the aunt of Lynette Woodside, early in October 1995. Prior to that transaction, the appellant had been employed in the day care centre doing mainly administrative tasks. Other employees at the centre at the time of the commission of the offences found by the District Court judge were Rhonda Martin, Meg Jones and Nicole Clayton.

9 The first offence was found to have occurred on 17 October 1995, and the victim was TB. The second of the offences found by the District Court judge to have occurred was alleged to have taken place on 8 December 1995 and involved DT. The prosecution relied essentially upon the evidence of Mrs Martin and Ms Jones to prove the commission of these two offences. The appellant denied the conduct attributed to her by the prosecution.

The assault on TB on 17 October 1995

10 Mrs Martin, who was a nurse and an untrained child care worker, began employment at the Kelso Kindergarten in 1994 when the centre was newly opened. The witness was working there on 17 October 1995 and described what she claimed she saw occur involving TB in evidence given on 11 August 1998 (T 19-23).

11 TB was a young child approximately four years old at the time. The incident occurred, according to the witness, in what was referred to as “the little room”. The witness said that the incident happened in the afternoon prior to an expected inspection by an officer from the Department of Community Services. His visit was arranged for licensing purposes. The witness said that she was seated at one of the tables in the room and that Ms Jones was seated beside her. The witness was uncertain as to whether there was anyone else in the room, apart from all the children who were playing there. The witness went on (T 19):

OBJECTION. TO WORDS ‘HE WAS VERY ANGRY’. ALLOWED

Q. At the point at which she let go of the child’s ankles, are you able to say how far from the bed, or about how far from the bed the sofa bed, she was at that time?

OBJECTION

12 Ms Jones worked as a child care worker at the Kelso Kindergarten between 1994 and December 1995. The witness said that she was at the centre on the day of the inspection of the officer from DOCS, and she gave an account of what she saw concerning TB. Like Mrs Martin, this witness said that the incident occurred in “the little room”. The witness thought that TB was three years of age or three and a half years old. The other adults present in the room were Mrs Martin and the appellant. The witness said that what occurred occurred on the carpeted area in the room, and she was watching the children when she heard TB screaming “and making quite a large noise”. The witness went on to give evidence (commencing at T 81):

HIS HONOUR: Q. Yes what you saw her do--

Q. And--

13 I turn to the prosecution case concerning the second of the claimed assaults, namely that on DT on 8 December 1995.

The assault on DT on 8 December 1995

14 Mrs Martin remembered DT and an incident which the witness said occurred at afternoon tea time, or “fruit time” as it was called. Fruit was cut up on a plate and placed at tables and the children helped themselves to it. The witness said that DT was “a little intellectually delayed little boy” and he only liked bananas, not other fruit. The witness said that the appellant was in the room and the witness described what occurred on the afternoon of 8 August 1995 (T 26):

OBJECTION. ALLOWED.

15 Ms Jones gave evidence of having witnessed what happened to DT. The witness gave evidence of an understanding that this child disliked oranges and the incident that she saw occurred at fruit time. The witness said that when she looked over, the appellant was standing behind DT and (T 85,)

“…she had a piece of orange and she was putting it in [DT’s] mouth and he was crying and screaming and gagging. Then she, I don’t know if she put it down or if he spat it out and she just walked away from him.”

16 The witness was unable to place the date of the occurrence, including the month, and was only able to say that it occurred in the afternoon in the small room. The witness said that the appellant and Mrs Martin were present. She was unable to recall if any other adult was there. Specifically, she said she was not sure if Ms Clayton was there or not.

17 The only other witness called by the prosecution in the case in chief was Detective Senior Constable Kean, who conducted an interview with the appellant at the Bathurst Police Station on 27 June 1996. It is not suggested that in that interview the appellant admitted to having committed either of the assaults.

18 So it is then that the prosecution case depended critically upon an acceptance of the evidence given by Mrs Martin and Ms Jones. The Crown did call evidence in reply from Paula Daley and I shall refer to this presently.

The appellant’s case at trial

19 Evidence was called in the case for the appellant.

20 The appellant herself gave evidence. The appellant said she commenced work at the kindergarten in mid July 1995, being mainly involved in administrative work although she had some face to face contact with the children. In September 1995 the appellant acquired Mrs Field’s share in the kindergarten, and the partnership between herself and her sister-in-law became effective from 3 October 1995.

21 The appellant gave evidence that the officer from DOCS attended the kindergarten shortly after 2.00 pm on 17 October 1995. When asked about the alleged assault on TB the appellant denied it.

22 Turning to the incident involving DT, the appellant’s evidence was that between 3.00 pm and 3.30 pm, during the children’s fruit time, Mrs Martin was assisting the appellant, who said that she had cut up the fruit and put it onto plates which are then placed on the various tables, each of which had three or four children seated there. The appellant decided it was time to give the children their drinks and turned towards Mrs Martin to ask her to bring the drinks over, but found she was not there. The appellant said she got up and went to the bench to get the drinks and commenced to hand them out to one of the groups of children.

23 Another child drew her attention to what DT was doing and the appellant said that she saw that DT had orange on his hands and face and that orange had been smeared on the table. The appellant said that she walked across to DT and stood alongside him. She said she picked up a piece of orange, held it in front of DT’s mouth and said to him, “If you want to eat orange, eat it properly” (T 152). Thereupon the appellant said DT moved away and said “No.” The appellant picked up a second piece of orange and again offered it to DT and repeated what she had already said. DT again refused and waved his arms around.

24 According to the appellant, when she was offering DT the second piece of orange the appellant saw Mrs Martin come into the room and the appellant heard her say, “She’s choking him”. The appellant denied placing her hand on DT’s forehead and denied holding his head back against her. She also denied placing the orange into his mouth.

25 In short then, the appellant denied each of the alleged assaults.

26 Mrs L. Woodside gave evidence of having opened the kindergarten business with her aunt, Mrs Field, and, further, Mrs L. Woodside gave evidence of the acquisition of her aunt’s share by the appellant and that the new partnership began on 3 October 1995.

27 The witness gave evidence of the visit by the officer from DOCS shortly after 2.00 pm on 17 October 1995. The witness recalled the appellant leaving her in the office prior to the arrival of the DOCS officer at a time when TB was making a fuss. The witness could not see her sister-in-law in the time that the appellant was out of the office, but the appellant herself gave evidence that having left the office she saw Ms Jones who informed her that TB was misbehaving and that Ms Jones was putting him “in time out”.

28 Mrs L. Woodside gave evidence that she had a very good relationship with Mrs Martin but that Mrs Martin, whilst she would speak to her with concerns that parents expressed to her about children, did not approach her about any concerns concerning TB after the visit from DOCS. Neither did Meg Jones.

29 As to the DT incident, the witness said that Mrs Martin told her the day after it occurred that the appellant was “trying to choke kids now, she tried to force [DT] to eat a piece of orange and you know he only likes bananas” (T 235-236). This complaint prompted the witness to speak to the appellant who told her that Mrs Martin had jumped to conclusions having seen DT with orange on his face. Two weeks later Mrs L. Woodside said that Mrs Martin told her “She’s getting worse now, she’s throwing kids on beds” (T 238). Mrs Martin said that the child involved was TB. The further evidence of Mrs L. Woodside was that she spoke to the appellant about it, and the appellant denied having ever thrown any child.

30 According to Mrs L. Woodside, from the time the appellant joined the partnership the relationship between the appellant and Mrs Martin deteriorated. The witness learned in February 1996 that Mrs Martin had contacted twenty parents to write letters of complaint to DOCS. Following this, on 1 March 1996, Mrs L. Woodside and her husband gave a letter of suspension to Mrs Martin.

31 Mrs Field said that she was told by Mrs Martin on 13 November 1995 about the TB incident (T 327-328). She said that what Mrs Martin told her was that TB had been thrown onto a little stretcher bed, not a sofa.

32 Ms Clayton commenced to work at the Kelso Kindergarten in 1995, having previously spent some three years in the Federal Police in the Child Protection and Family Unit. She said she was a friend of Mrs Martin and also of Ms Jones. Ms Clayton remembered TB and also remembered the day of the visit by the officer from DOCS. She said she would have been in the company of Ms Jones throughout that afternoon and would have seen any incident involving TB if Ms Jones had seen it. She said that neither Mrs Martin nor Ms Jones told her anything about the appellant throwing TB onto a sofa bed (T 279).

33 The witness gave evidence of being aware that Mrs Martin kept a book in which she recorded occurrences at the kindergarten. She said that Mrs Martin showed her that book and sought to have her write a letter to DOCS, but the witness said that she did not agree with the entries and told Mrs Martin that she did not want to become involved.

34 According to this witness, neither Mrs Martin nor Ms Jones told her anything about an incident in which the appellant forced a piece of orange into DT’s mouth.

35 The witness left Kelso Kindergarten in April 1996 to accept a position as a nanny in Sydney and obtained a favourable reference from the appellant and from her sister-in-law at the time she left the kindergarten (T 283).

36 Ilma Grimmet was the director of the Bathurst Early Intervention Service which worked with children with disabilities, and this witness became involved in the care of DT from the beginning of 1995 until the end of 1997. Mrs Grimmet attended his kindergarten once a week. She knew the child to be very big and very strong for his age, and she said he developed a very strong attachment to the appellant in 1996. From her knowledge of DT she said he would have been very angry if anyone had tried to force a piece of orange into his mouth and would have informed his mother.

37 DT’s mother gave evidence to the effect that DT had not told her of the incident involving the orange.

38 Beverley Bennett was a district officer with DOCS who gave evidence of interviewing TB’s mother in March 1996 after being made aware of the alleged assault on TB. TB’s mother told Ms Bennett that she had no knowledge of the alleged assault, and that TB made no complaint that he had been mistreated. When Ms Bennett asked the child, he said he could not remember having been picked up by his ankles and thrown onto a couch.

39 Roslyn Mordue, another officer of DOCS, gave evidence that in February 1996 she received a call from Mrs Martin, who later attended on her and expressed a number of concerns but did not describe the incidents the subject of the assault charges. However, at that interview Mrs Martin was asked to put her concerns in writing, and this was done it would seem some time shortly after the interview of 20 February 1996. The letter written included reference to the claimed assaults on TB and DT.

40 The only other witness called in this matter was called in reply by the prosecution. Paula Daley gave evidence that she was a qualified care worker whose son attended the Kelso Kindergarten in 1995. Before Christmas that year, this witness gave a dinner party at her home and invited Ms Jones and Ms Clayton. According to Mrs Daley, both Ms Jones and Ms Clayton raised concerns over things that were occurring at the kindergarten, and Mrs Daley said that Ms Jones complained that the appellant was being physical towards the children (T 339). Mrs Daley gave evidence that Mrs Martin contacted her in January or February 1996 asking her to write to DOCS complaining about the kindergarten and the appellant. Concerns which Mrs Daley did express in March 1996 did not relate to either of the subject alleged assaults, but, of course, it was not suggested she had any personal knowledge of either episode.

41 I have not attempted to summarise all the evidence that was given at this lengthy hearing. Apart from recording the descriptions of the alleged assaults given by the principal prosecution witnesses in their evidence in chief, I have endeavoured above to identify the various witnesses called by the appellant, and then in reply, and to record some features of their evidence by way of background to a consideration of the submissions made on behalf of the appellant. However, before considering those submissions, I will refer to the judgment of the District Court judge.

The judgment of the District Court

42 Kinchington DCJ identified Mrs Martin, Ms Jones and Constable Kean as the principal Crown witnesses. The judge considered the other principal witnesses to be the appellant, Mrs L. Woodside, Mrs Field and Ms Clayton. His Honour reviewed the evidence of the Crown witnesses and of the witnesses called in the appellant’s case, and then proceeded to make findings as to credibility.

43 His Honour was favourably impressed by the evidence of Mrs Martin and of Ms Jones. This is reflected in the following passages from his judgment:

“Firstly as to Mrs Martin’s evidence I was impressed by the candour and demeanour of this witness both generally in the course of her cross examination. At no time did she resile from the assertions she made in her evidence in chief and at all times she gave me the impression that she was answering the questions put to her to the best of her ability and in accord with her memory of events that happened late in 1995 and about which she had previously been questioned on a number of occasions.”

“As to the cross examination of Meg Jones this was a most testing time for the witness. Again I was impressed by her candour and demeanour generally and at this time.”

44 On the other hand, the judgment makes plain that his Honour formed an adverse opinion concerning the appellant. His Honour said of her (p 18):

“I was not impressed by the Appellant as a witness and gained the impression that she was not being forthright about what had occurred between herself and the two children and so far as her evidence is in conflict with that of Rhonda Martin and Meg Jones as to the two incidents in question I prefer the two Crown witnesses version of events.”

45 Nor did his Honour find the evidence of Ms Clayton persuasive. Having reviewed her evidence, his Honour expressed this finding (p 16):

“Having seen both Ms Clayton and Mrs Jones as they gave their evidence and having had the opportunity to reflect thereon, I am satisfied that I should prefer the evidence of Mrs Jones to that of Ms Clayton wherever there is any conflict between them.”

46 Then, generally as to the witnesses who gave evidence in the appellant’s case, his Honour said (p 19):

“Generally speaking I was not impressed by any of the principal witnesses who gave evidence in the defence case as I have come to the conclusion that apart from Lyn Woodside they were holding back or something and not being as forthright as they could have been.”

47 Further, his Honour said (p 19):

“As I have already indicated I was impressed with not only the quality and reliability of the evidence given by both Rhonda Martin and Meg Jones but equally impressed by their demeanour throughout the whole of their evidence and I prefer what they say on the real issues raised by these proceedings and in particular as to what they say occurred firstly on the 17th October 1995 in relation to [TB] and secondly as to the presence of a sofa bed in the little room on that day. I am also satisfied that I can rely upon the evidence of Mrs Martin as to the nature of the conversation she had with the Appellant, Lyn Woodside, Delma Field and her evidence when it is in conflict with them and also with Nicole Clayton. I am also satisfied that Mrs Martin’s recollection of events is as accurate as one could expect bearing in mind the time that had elapsed since the incidents she gave evidence about took place indeed her conduct following those events including her notes thereof, her conversation with Lyn Woodside and Mrs Field and her subsequent complaint to DOCS to my mind are all consistent with the conduct of a concerned, honest and reliable person and I reject any assertion that she has made up her evidence in any way and then got together with Meg Jones to appoint a false picture of what had occurred in relation to the two incidents described in her evidence.”

48 Having concluded he could “safely act” on the evidence of the two principal Crown witnesses, the judge turned “to a consideration of whether their evidence establishes beyond reasonable doubt that the two incidents identified in their evidence constitutes an assault on [TB] or [DT]” (p 19). His Honour went on to conclude that the elements of the alleged offences were established beyond reasonable doubt.

The submissions of the appellant

49 As I observed earlier, Mr Thangaraj pursued the one ground before this Court, namely that:

“The verdict was unreasonable and cannot be supported having regard to the evidence.”

50 Mr Thangaraj realistically acknowledged his task was a difficult one in seeking to persuade this Court that it was not reasonably open to the District Court judge to find the offences to have been proved.

51 Although the proceedings come before this Court by way of reference pursuant to s 474C of the Crimes Act, this Court is confined to its customary role in appeals against criminal convictions. As I stated before, this is the effect of s 474L of the Crimes Act. Hence, because the evidence of Mrs Martin and of Ms Jones, if accepted, established the commission of the assaults charged, it follows that this appeal cannot succeed unless it was not reasonably open to the District Court judge to accept the evidence of those two Crown witnesses.

52 In the written submissions and in the oral argument presented on behalf of the appellant, a number of matters were advanced to support the ground addressed. I shall consider now what I perceive to have been the thrust of those submissions.

53 Firstly, the appellant relied upon the absence of complaint from the children or their parents. Of course each of the children was of tender years. TB was being mischievous on the occasion of the earlier incident and DT was “intellectually delayed” (see para 14 above). In these circumstances the failure of either child to complain as to what happened is explicable.

54 Secondly, it was submitted the failure of the witnesses to complain immediately about what happened weighed against the veracity of their accounts.

55 Mrs L. Woodside gave evidence that Mrs Martin spoke to her about the incident involving DT on the day after Mrs Martin said it happened. The same witness said that two weeks later Mrs Martin also complained to her about TB having been thrown on to a bed or couch, and, indeed, Mrs L. Woodside said that she spoke to the appellant about each incident and was told neither had taken place. The appellant said that Mrs Martin misconstrued what had been going on in relation to the piece of fruit and denied ever having thrown any child. Mrs Martin said that she rang Mrs Field and told her about what had happened to TB. That call was made, according to the witness, on 13 November 1995. Mrs Field agreed in her evidence that Mrs Martin had done so.

56 Mrs Martin approached the Department of Community Services in February 1996. She attended on Roslyn Mordue, a children’s services adviser at DOCS, at 20 February 1996 and then spoke to that adviser and to Terry Neal. Concerns conveyed on that occasion did not include mention of either the TB or the DT incidents, but Mrs Martin was asked to put her concerns in writing and did so. The written complaint made reference to both assaults.

57 Whilst it appears that the complaint letter to DOCS was not received by the Department until shortly after Mrs Martin was suspended from the kindergarten, the evidence establishes that the process of complaining was underway before that suspension, and there had been the earlier complaints to Mrs L. Woodside and Mrs Field. The evidence does not support a reasonable inference that Rhonda Martin was prompted to complain because she had been suspended.

58 In my opinion, such delays as there were in complaining and the nature of the complaints made, did not necessarily cast any doubt upon the accounts as to the assaults given by the two Crown witnesses.

59 Thirdly, it was submitted that reasonable doubt was cast upon the versions of the two Crown witnesses by the appellant’s denials and by the evidence given by Ms Clayton whose evidence went directly to the question as to whether or not the incidents the subject of the charges occurred. It does not seem to me that there is any substance in this submission. The District Court judge had the opportunity of assessing the evidence given by the appellant and by Ms Clayton, and he expressly considered it in his judgment and made the adverse findings as to the evidence of those two witnesses to which I have earlier referred. He did so enjoying the advantage not enjoyed by this Court of having seen the witnesses who were called in the proceedings before him.

60 Fourthly, a matter which it was submitted cast doubt upon the evidence given by the Crown witnesses was evidence to the effect that there was no sofa bed in the “little room” where the assault on TB was alleged to have taken place. There was evidence that a sofa bed had been damaged and placed in the storeroom before 17 October 1995.

61 There was evidence however that there were two sofa beds in the care centre and Mrs L. Woodside said that one of the sofa beds was taken out of use in the first week of October. This left one serviceable sofa bed in use, and Mrs L. Woodside said it was used in both of the kindergarten rooms. In these circumstances, since Mrs Martin and Ms Jones both gave evidence that the child was thrown on to a sofa bed, it was reasonably open to his Honour to find that there was such a bed in the little room at the relevant time.

62 Fifthly, it was submitted that the entry made by Mrs Martin in her note book was so located as to cast doubt upon its reliability, and hence the reliability of Mrs Martin as its author.

63 Mrs Martin kept a notebook which, on the face of it, contained some record of events that occurred at the kindergarten. The pages of the notebook are unlined and the notes contained in the book are informal and rough notes. The pages are not numbered. There is a page that begins with the date “13th Nov.” The first two lines record an alleged event concerning three children. There is then a line under that entry and there is then a short note which purports to refer to what happened to TB on 17 October 1995. The date is not recorded but the date is described as “The Day of the Licence”. That could be read as a reference to the date of the visit by Mr Neal. Immediately below that entry concerning the earlier of the alleged assaults, is the date “16/11/95”. It is recorded under that date that the appellant had conjunctivitis at work. It was submitted that this entry concerning the assault on TB was suspect, being misplaced in time, and that the entry ought to have engendered a reasonable doubt about whether the incident occurred at all.

64 Mrs Martin was cross examined about the entry. According to her, she used to “grab” the book out of the locker and write in it what she had seen and then “throw” it back in the locker, and that the book was not particularly in sequence with dates.

65 I have detected in perusing the notebook no other entries which are out of time sequence, but it does not necessarily follow, having regard in particular to the informality of this book, that the evidence which Mrs Martin gave about it was not to be believed. It seems to me that it was open to the trial judge to determine whether what Mrs Martin said about the book was to be accepted. Plainly there was an entry placed in the book about the earlier of the assaults and even if the witness was wrong in her assertion as to the date she made the relevant entry, that does not necessarily cast doubt upon the reliability of her evidence as to what she claimed to have seen happen to TB.

66 Sixthly, it was submitted in relation to the assault upon DT that a reasonable doubt ought to have arisen concerning this episode by reason of part of the account given by Ms Jones where she said “I don’t know if she [the appellant] put it down or if he spat it out.” Then, as to Mrs Martin, Mr Thangaraj referred to evidence that was given by this witness at a Community Service Appeal Tribunal that she was not actually positive that the orange was in his mouth or on his mouth. The witness was cross examined about that earlier evidence in the proceedings in the District Court. The witness also acknowledged that she had told the Tribunal that she did not actually recall whether she had seen the orange in his mouth.

67 I set out earlier the descriptions which each witness gave of the two incidents. I add in the present context a reference to what Ms Jones said in cross examination (T 109-110) concerning the orange incident:

68 It was proper for his Honour to have regard to all the evidence given by these two witnesses, and I am not persuaded that the matters here raised by the appellant (in para 66 above) should have given rise to a reasonable doubt concerning the orange incident.

69 Seventhly, it was submitted that there were features of the evidence of Ms Jones in the Local Court proceedings which differed from those of her evidence in the District Court. Once again however, an assessment had to be made of the reliability of the evidence of that witness having regard to all the evidence that was given by her and the extent to which it was supported by the evidence of Mrs Martin. Ms Jones did not claim to have seen the entire event concerning TB, but Mrs Martin did. I accept the Crown submission that the judge was entitled to accept the more detailed evidence of Mrs Martin about how the assault commenced and to accept that the evidence of Ms Jones supported that account insofar as Ms Jones claimed to have seen the appellant swing the victim around by his lower legs near the ankles before he landed on the sofa bed.

70 Further, it was submitted on behalf of the appellant that there was inconsistency between the evidence that Mrs Martin gave and that Mrs Daley gave as to the former urging parents to write to DOCS about the appellant. In cross examination, Mrs Martin said that she spoke to parents asking them to express their concerns in writing to Community Services. It was submitted that this was contradicted by evidence which Mrs Daley gave to the effect that Mrs Martin had told her that she was only telling a small group of parents to write letters of concern.

71 I am by no means convinced that the evidence of the two witnesses was inconsistent but, in any event, even if there was inconsistency, it did not follow that the evidence of Mrs Martin as to what she saw happen to the two children had to be regarded as unreliable.

72 Mr Thangaraj also submitted that the Crown witnesses had motives to lie. Mrs Martin had wished to purchase an interest in the child care centre, and the notes taken about mistreatment by the appellant were only recorded after the appellant purchased the Field interest, a purchase which frustrated Mrs Martin’s intended acquisition. The timing of the notes suggested a connection between what was recorded and this frustration.

73 It does not seem to me that the failure by Mrs Martin to record any perceived episodes of mistreatment by the appellant before her purchase of the Field interest warranted the conclusion that what was recorded must have been untrue. It has to be remembered that before the appellant acquired the interest in the kindergarten the appellant was primarily concerned with administrative matters and not with caring for children. It was only after early October 1995 that a closer daily association with the children occurred.

74 Turning to Ms Jones, attention was drawn to the evidence of Ms Clayton that Ms Jones was resentful of the appellant, and according to Ms Clayton, Ms Jones had said that she was going to make the appellant pay for forcing her to “sell her house, leave her dog, leave her family and leave town.” The evidence of Ms Clayton as to this was contradicted by Ms Jones, who, in cross examination, denied that she had said she was going to make the appellant pay. Clearly, this was another area in relation to which there was conflicting evidence to be weighed by the trial judge.

75 Mr Thangaraj drew attention to the fact that in his judgment the trial judge made no reference to the evidence of Roslyn Mordue and to the evidence of Ilma Grimmet. It does not follow that his Honour ignored the evidence given by these witnesses and his Honour referred in his judgment to the other witnesses not named by him whose evidence “was also of considerable interest and in particular helped me to put in context the evidence of the principal witnesses I have named.” Neither Ms Mordue nor Mrs Grimmet was in a position to give direct evidence concerning the alleged assaults. It was to Ms Mordue that Mrs Martin complained about the appellant’s behaviour, and I have referred to this matter earlier (para 56 above).

76 Mrs Grimmet, as the director of the Bathurst Early Intervention Service, had been involved in the care of DT from the beginning of 1995 and also attended his kindergarten on a weekly basis. This witness considered that DT had a very strong attachment to the appellant and held the opinion that if the appellant had tried to force orange into his mouth he would have been physically resistant and so angry as to have informed his mother. Without doubting the honesty of the beliefs to such effect entertained by Mrs Grimmet, the judge was entitled to take the view that those beliefs did not assist him very much in determining whether he should accept the direct evidence given by the principal Crown witnesses as to what had occurred concerning DT.

77 The approach to be adopted by this Court in considering an appeal such as is here presented has been well settled by the High Court in M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; and MFA v The Queen (2002) 213 CLR 606. I need refer only for present purposes to the statement of principle in M v The Queen as found in the judgment of Mason CJ, Deane, Dawson and Toohey JJ at 493:

“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 (See Whitehorn v The Queen (1983), 152 CLR, at p 686; Chamberlain v The Queen [No 2] (1984), 153 CLR, at p 532; Knight v The Queen (1992), 175 CLR 495, at pp 504-505, 511). 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 witnesses. On the contrary, the court must pay full regard to those considerations (Chamberlain v The Queen [No 2] (1984), 153 CLR, at p 621).”

78 It is to be emphasised that this Court must pay full regard to the fact that the primary judge had the benefit of seeing and hearing the witnesses whose credibility was in question, and his Honour, with that benefit, made findings of fact which led him ultimately to conclude that the prosecution had proved its case in relation to both assaults.

79 No doubt the features of the evidence to which the appellant’s submissions have draw attention in this Court were matters to be considered at first instance, but in my opinion those features, whether viewed individually or collectively, did not compel a conclusion contrary to that reached by the primary judge. Having considered all the submissions advanced on behalf of the appellant, I have concluded that it was open to the primary judge to be satisfied beyond reasonable doubt as to the guilt of the appellant on both charges. There was direct evidence that supported such findings and in my opinion it was open to the primary judge to act upon that direct evidence.

80 It follows that this appeal should be dismissed, and that is the order I propose.

81 SULLY J: I agree with Studdert J.

82 GREG JAMES J: I agree with Studdert J.

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Last Modified: 11/09/2004

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Citations

R v Woodside [2004] NSWCCA 375

Cases Citing This Decision

0

Cases Cited

7

Statutory Material Cited

2

M v the Queen [1994] HCA 63

Morris v the Queen [1987] HCA 50

Hocking v Bell [1945] HCA 16

CITATION:	R v Woodside [2004] NSWCCA 375
HEARING DATE(S):	8 October 2004
JUDGMENT DATE:	3 November 2004
JUDGMENT OF:	Studdert J at 1; Sully J at 81; Greg James J at 82
DECISION:	Appeal dismissed.
LEGISLATION CITED:	Crimes Act, ss 474C, 474L Criminal Appeal Act, ss 5, 6
CASES CITED:	Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606
PARTIES :	Regina v Dorothy Woodside
FILE NUMBER(S):	CCA 2004/1956 CCAP
COUNSEL:	E. Wilkins (Crown) M. Thangaraj/C. Evans (Appellant)
SOLICITORS:	S. Kavanagh (Crown) S. O'Connor (Appellant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	97/62/0181
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ