Ross Andrew Burdon v The Queen

[2012] ACTCA 54

ROSS ANDREW BURDON v THE QUEEN               
[2012] ACTCA 54 (21 December 2012)

APPEAL – Appeal against conviction – Unsafe and unsatisfactory – Findings open to the trial judge – Appeal dismissed.

APPEAL – Appeal against conviction – Unsafe and unsatisfactory – Specific error – Error not a material fact – Appeal dismissed.

Crimes Act 1900 (ACT), s 49
Crimes (Sentencing) Act 2005 (ACT), s 17

Supreme Court Act 1933 (ACT), ss 68B, 37O

M v The Queen (1994) 181 CLR 487
The Queen v Ross Andrew Burdon [2011] ACTSC 90 (1 June 2011)
Haros v Linfox Australia Pty Ltd [2012] FCAFC 42

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 32 – 2011
No. SCC 336 of 2009

Coram:           Penfold, Burns and Marshall JJ
Court of Appeal of the Australian Capital Territory

Date:              21 December 2012

IN THE SUPREME COURT OF THE     )
  )          No. ACTCA 32 - 2011
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 336 of 2009

COURT OF APPEAL

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROSS ANDREW BURDON

Appellant

AND:              THE QUEEN
  Respondent

ORDER

Coram:  Penfold, Burns and Marshall JJ
Date:  21 December 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed.

1. The sentence imposed by Refshauge J is confirmed.

IN THE SUPREME COURT OF THE     )
  )          No. ACTCA 32 - 2011
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 336 of 2009

COURT OF APPEAL

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROSS ANDREW BURDON

Appellant

AND:              THE QUEEN
  Respondent

Coram:  Penfold, Burns and Marshall JJ
Date:  21 December 2012
Place:  Canberra

REASONS FOR JUDGMENT

PENFOLD J:

1. I agree with Burns and Marshall JJ that the appeal must be dismissed, and largely for the reasons their Honours give.  However, I have a slightly different view about one of the appellant’s complaints about the trial judge’s findings.

1. The appellant had several complaints about the trial judge’s approach to the mechanics of the incident in which the complainant was said to have sustained red marks around her neck.  His Honour the trial judge said at [172]-[174]:

I found it quite difficult to understand how Mr Burdon was explaining the incident in his sworn evidence before me.  He said that Mrs Burdon was poking him in the chest.  She must then have been in front of him.  He then says she grabbed his hair.  That must have been from in the front.  He then says she was behind him, but I found it really hard to see how that occurred.

He then said that he reached behind him and pulled on her scarf, apparently to steady himself.  This is inconsistent with his concession that he may have pulled her off the ground.

His evidence then was that Mrs Burdon fell over, but if Mrs Burdon was behind him and pulling his hair and he was hanging on to her scarf – it is, in my view, inconceivable that he would not have fallen with her, either on top of her or beside her.  His explanation of being nimble-footed would not have prevented that in the circumstances he described.

1. The appellant says that, in dealing with this issue at [172], the trial judge ignored his evidence that he had turned after the complainant grabbed his hair, and before he reached back and grabbed the complainant’s scarf.  The appellant also says that there was no inconsistency in his evidence of the kind identified by the trial judge in [173], and challenges his Honour’s finding at [174] that it was inconceivable that the appellant would not have fallen to the ground with the complainant if events had unfolded as he said they did.

1. It is unlikely, given the nature of the altercation between the appellant and the complainant, that anyone (whether a participant or witness) would have been aware of the exact sequence of events in the altercation as it was happening, and even more unlikely that anyone would have been able to describe it in perfectly accurate detail afterwards.  His Honour, who heard and saw the evidence being given, in particular by the appellant and the complainant, was not obliged to accept the appellant’s evidence about turning after the complainant grabbed his hair and before he reached back and grabbed the complainant’s scarf.  His Honour was entitled to conclude that the appellant’s evidence about the circumstances in which he pulled on the complainant’s scarf was inconsistent with other evidence given by the appellant.

1. His Honour’s reaction to the appellant’s explanation for not falling over with the complainant when she fell over may raise questions about the limits of his Honour’s imagination.  Certainly I find it possible to imagine an initial stumble that the appellant was able to correct, perhaps because one or both of the appellant and the complainant had let go of the other as they fell.  However, the fact that such a possibility might be conceivable to another judge does not mean that the trial judge was not entitled to reject the appellant’s evidence on this particular question.  

1. Given the difficulties I have already mentioned in establishing the exact sequence and nature of the events making up the incident concerned, it does not seem to me that the trial judge was obliged to be satisfied beyond reasonable doubt that those events took a particular course in a particular sequence, as long as he was satisfied beyond reasonable doubt, that the appellant “by intentionally or recklessly pulling on [the complainant’s] scarf assaulted her”.  In fact, however, his Honour at [175] – [177] seems to have accepted a sequence of events as described by the complainant, subject only to a doubt about whether she was held off the ground for as long as she said.

1. As his Honour reminded himself at [175], “[the appellant] does not have to prove anything.  His explanation can only go to raising, if it does, a reasonable doubt about how the red marks were inflicted on [the complainant’s] neck.”

1. His Honour  at [162] – [166] and [170] – [171] referred to other matters that caused him to doubt the appellant’s evidence.  His Honour’s difficulties with the appellant’s claim that he did not fall to the floor with the complainant at a certain point seem to have been minor compared with the doubts raised in his Honour’s mind by other aspects of the appellant’s evidence, including aspects that were able to be assessed against objective evidence available to his Honour. 

1. Not only were they relatively minor, his Honour’s difficulties with the appellant’s claim about not falling were also of only indirect significance.  That is, his Honour was entitled to reject the appellant’s evidence more broadly of the mechanics of the scarf incident, having regard to the general conclusions about the reliability of the appellant’s evidence that his Honour reached based on other parts of the evidence.  Once his Honour rejected the appellant’s broader description of the mechanics of the incident, it seems to be of no moment that one small part of that description may be more credible than his Honour accepted.

1. Even taken with the error of fact in his Honour’s reasons that Burns and Marshall JJ refer to at [63] below, which I also accept, I consider that it was open to the trial judge on the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty of the offence of common assault, and that his Honour’s verdict was neither unsafe nor unsatisfactory or, to use the words of s 37O(3)(b) of the Supreme Court Act 1933 (ACT), I consider that no substantial miscarriage of justice has actually occurred.

1. The appeal should be dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour Justice Penfold.

Associate:

Date:     21 December 2012

IN THE SUPREME COURT OF THE     )
  )          No. ACTCA 32 - 2011
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 336 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROSS ANDREW BURDON

Appellant

AND:              THE QUEEN
  Respondent

Coram:  Penfold, Burns and Marshall JJ
Date:  21 December 2012
Place:  Canberra

REASONS FOR JUDGMENT

BURNS and MARSHALL JJ:

1. On 20 July 2009 an incident occurred at the home of the appellant, Ross Andrew Burdon, and his wife Rea Burdon (the complainant) in Kambah in the Australian Capital Territory.  The police were called.  The appellant was arrested and charged with an offence of assaulting the complainant thereby occasioning to her actual bodily harm.  In September 2009 the appellant was committed to the ACT Supreme Court for trial on that charge.

1. On 14 April 2010 the appellant made an election under s 68B of the Supreme Court Act 1933 (ACT) to be tried by a judge alone. The trial took place on 5 and 6 October 2010. On 1 June 2011 the trial judge found the appellant not guilty of the charge of assault occasioning actual bodily harm, but guilty of common assault on the complainant. This course was available to the trial judge by virtue of the provisions of s 49 of the Crimes Act 1900 (ACT).

1. Subsequently, on 26 July 2011 the trial judge sentenced the appellant. The trial judge disposed of the matter by making a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT), and imposing a good behaviour order. The imposition of a good behaviour order as part of a non-conviction order is authorised by s 17 (2) (b) of the Crimes (Sentencing) Act 2005 (ACT).

1. The appellant appeals from the finding of guilt made by the learned trial judge.  Initially he also sought to appeal against the imposition of the good behaviour order as “at odds with an order of no conviction”, but abandoned this ground during the course of the appeal.  The appellant was represented by counsel in the course of the trial, but has subsequently been self-represented.  As such, we have made some allowance for the inappropriate expression of the grounds of appeal as set out in his Amended Notice of Appeal.  During the course of the appeal it became clear that the appellant’s argument was that the finding of guilty was unsafe and unsatisfactory, and that the other matters raised by him were particulars of that complaint.

1. The law relevant to this appeal is well settled.  In M v The Queen (1994) 181 CLR 487 the plurality judgment (Mason CJ, Deane, Dawson and Toohey JJ) expressed the relevant law at [7] as follows:

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.

(footnotes omitted)

1. The law thus formulated is directed towards a jury verdict, but the same principles apply to a verdict rendered after a judge-alone trial.

1. In answering the question proposed in the above extract, an appeal court is obliged to undertake its own assessment of the evidence, but it must also pay full regard to the fact that the jury (or, in this case, the trial judge) had been entrusted with the primary responsibility of determining guilt or innocence and that the jury (or trial judge) had the benefit of having seen and heard the witnesses give evidence during the course of the trial.

THE EVIDENCE

1. The Crown case relied primarily on the evidence of the complainant.  On 20 July 2009 she went out in the afternoon, leaving the appellant at home with their child.  She returned home at about 4.15 pm.  Before she went out she and the appellant were arguing, with her complaining that the appellant was spending too much time using his computer and was not providing sufficient assistance to her in caring for their infant son.  After she returned, the complainant told the appellant she was going out for the night for some time alone, and commenced packing a bag.  She alleged the appellant followed her and started pulling at and holding her hand to stop her packing a bag.  The appellant was yelling at her, and she raised her voice and said: “Don’t touch me.  I want to go”.  She finished packing her bag, and then went to the lounge room and kitchen to pack more things.  She said the appellant followed her through the house, and kept holding her and grabbing her hand.

1. The complainant said that the appellant kept yelling at her, and sometimes she also screamed at him.  The appellant then grabbed her by the shoulders and shook her.  She felt scared, and sore in her hand and shoulder.  At this point, they were close to the kitchen, and she took a knife and held it in front of her, pointing it upwards.  The appellant then stopped grabbing her.  She returned to the kitchen and put the knife back in the drawer.  She returned to the lounge room, at which point the appellant moved quickly towards her, causing her to knock over a flower vase.  The appellant approached her quickly from her front, grabbed a scarf she was wearing around her neck, and, using two hands, lifted her off the ground by the scarf.  The appellant then released the scarf, resulting in the complainant falling to the floor.  The appellant then jumped on top of her, straddling her with his knees.  He then slapped her face “quite hard”, leaving a red mark.

1. The appellant got off the complainant, allowing her to get to her feet.  She ran to the bedroom, collected her son and ran out to the street via the back door of the house.  She walked to a nearby bus stop and telephoned police.  The appellant followed her from the house to the bus stop and was present when she called police.  He waited at the bus stop with the complainant and their son until police arrived.

1. The appellant testified that on the morning of 20 July 2009 the complainant went out while he minded the baby.  She went to Woden in the Australian Capital Territory by bus.  The appellant took his son out, but after a while the child appeared to be hungry.  As the child was being breastfed, the appellant telephoned the complainant to see what time she would be home.  She said she was waiting for a bus at Woden, and declined his offer to collect her.  He then returned home to Kambah.  When he arrived, the complainant was not there.  She subsequently returned home, but told the appellant she was not staying.  She said she was leaving, and the baby was the appellant’s to care for.  He testified that the complainant then left the house.  He collected the baby from the bedroom and placed him in the car seat, and then drove down the road.  The appellant said he saw the complainant walking along the road, and pleaded with her to feed the baby.  She ignored him and walked away.

1. The appellant said he drove home and rang Family Services about arranging to feed the baby.  While he was talking to Family Services the complainant returned home so he terminated the call.  She went to the bedroom and returned with some clothes in a bag.  The appellant pleaded with her to calm down and feed the baby.  He touched her arm and “ducked and weaved” in front of her, trying to talk to her.  She walked into the kitchen and then emerged with a carving knife.  She swung the knife at him and he jumped back.  She swung the knife wildly, striking a “decorative collection of flowers”, knocking it to the floor.  The appellant continued to retreat, grabbed his mobile phone and said: “Rea, I want to get video of this”.  The complainant then returned the knife to the kitchen. 

1. The appellant said the complainant started poking him in the chest and grabbed his hair.  He turned, and with one hand reached over his shoulder and grabbed her clothing while she was still pulling his hair.  She then fell to the floor, but he was able to keep his feet.  She got up and walked out of the lounge room.  Shortly after this, he heard the back door slide closed and he saw her going past the window.  Whilst he thought the baby was still in the house, he nevertheless decided to follow her.  It was not until he got to the bus stop that he realised she had the baby in her arms.

1. The appellant said that he had been calm throughout the incident, and described his tone of voice at the house as “gentle, reassuring”.  The appellant recorded parts of this incident on his mobile phone.

THE DECISION

1. Refshauge J directed himself on the “fundamental rules designed to ensure that an accused person receives a fair trial according to law”.  No objection can be taken to these directions. 

1. The trial judge then, with respect, correctly identified the law applicable to the charge against the appellant.  Again, no objection can be taken to these directions.

1. The trial judge summarised the evidence given by each witness at the trial, and the submissions made by the Crown and counsel for the accused.

1. The trial judge found:

a)        that the appellant and complainant had been arguing and shouting at each other, with the appellant becoming quite heated and angry at times, and the complainant becoming angry and upset;

b)        that the appellant deliberately pulled the scarf around the complainant’s neck causing the red marks subsequently seen there;

c)        that the red marks he observed on photographs of the complainant’s neck were caused by the scarf being tightened around her neck;

d)        that he was not satisfied beyond reasonable doubt that the appellant had pulled the complainant off the ground by the scarf for twenty seconds or so; and

e)        that he was not satisfied that the red marks around the neck of the complainant or any other sequelae of the incident referred to by the complainant amounted to actual bodily harm.

1. On the basis of these findings the learned trial judge found the appellant not guilty of the charge of assault occasioning actual bodily harm, but guilty of the statutory alternative of common assault.

1. In the course of his consideration of the evidence and the submissions of counsel, the learned trial judge considered what he considered to be aspects of the evidence of the appellant and the complainant relevant to their credibility.  He found the complainant to be somewhat excitable and to have a poor recollection of some matters.  For example, she denied that during the altercation the appellant received a phone call, whereas a telephone can clearly be heard ringing on audio-visual footage from the appellant’s phone.  Whilst the audio-visual material does not show the phone being answered, the trial judge was satisfied that it was likely the appellant did so.  Also, the complainant did not tell police when first spoken to that the appellant had yelled at her, or that he had followed her into the bedroom, touched and harassed her there, or that when she fell to the ground he had straddled her on his knees.  The trial judge noted that the incident occurred some 15 months before the trial and that the complainant admitted some vagueness about some of the events of the day.  She had concentrated on what she saw as the central issue of the appellant pulling the scarf and thus lifting her from the ground.  On that aspect of her evidence she was consistent in her complaints to police and paramedics very soon after the incident.

1. The trial judge noted that the appellant failed to tell police things he later said, such as his failure to tell police at the bus stop that the complainant had pulled his hair.  This was, as observed by the trial judge, significant because it was, on the appellant’s account, the act which precipitated him taking hold of the complainant’s clothing, most likely causing the red marks observed on her neck.  The trial judge also noted that whilst he mentioned to police he had been drinking that day, he did not mention this in his evidence.

1. The trial judge also found aspects of the appellant’s evidence curious, difficult to understand and unconvincing.  The trial judge found it curious that the appellant called Family Services to help with feeding the child when he knew the complainant was on her way home, with her in fact returning during the call.  The appellant asked Family Services to call him back, but as the complainant was then home it is, as the trial judge observed, entirely unclear why he did so.  The most curious aspect of the appellant’s evidence, the trial judge found, was the appellant’s evidence that he was concerned that the baby needed feeding, as the child could not be heard crying on either piece of audio-visual footage the appellant captured on his phone, nor is there any conversation in which the appellant asks or urges the complainant to feed the baby.  At the bus stop the child was not observed to be distressed, but was described by paramedics as sleeping and comfortable.

1. The trial judge concluded that the appellant in his evidence was intent on minimising his part in the incident, noting that he refused to accept that there had been an argument between himself and the complainant.  The trial judge, based on the audio‑visual material, found himself incapable of characterising what had occurred in any other way.  Additionally, the trial judge was not impressed by the appellant’s explanation for his failure to tell police at the bus stop of the allegation that the complainant had pulled his hair.  This was an important aspect of the appellant’s version of events, as it explained why he had taken hold of the scarf, possibly (on his evidence) pulling the complainant off the ground, and how the complainant came to fall to the ground.  The following questions and answers relevant to this issue are found in the appellant’s taped record of interview:

Q111   Okay.  I’m just curious as to why you didn’t mention her pulling your         hair and you falling down then.  That seems to me to be a fairly         significant event in the whole series, and you made no mention of    that on the side of the road?

A111   Well, I’ve got – I’ve got her on the floor on the video here.  I mean, it’s – it’s not in question.  Um, I don’t like to declare to police that     she gets up to that sort of stuff or that we involve ourselves.  We          don’t do this.  We don’t fight.

1. We consider that the trial judge was entitled to be highly sceptical of this explanation in light of the willingness of the appellant to tell police of the complainant having obtained a knife, and menacing him with it.

1. The trial judge also found it curious that the appellant had only recorded part of the incident involving the knife at the house.

1. Additionally, the trial judge found it difficult to understand how the incident at the house, where the appellant took hold of the complainant’s scarf, could have occurred in the way described by the appellant.  The appellant testified that the complainant was poking him in the chest, suggesting she was in front of him.  He said the complainant then grabbed his hair, and that she was behind him when this happened.  The trial judge found it difficult to see how this occurred.

1. The trial judge noted that the appellant then said that he reached behind him and pulled on her scarf, apparently to steady himself, which the trial judge considered to be inconsistent with the appellant’s concession that he may have pulled the complainant off the ground.

1. Finally, the trial judge observed that the appellant testified that after he grabbed the scarf, with the complainant behind him pulling on his hair, the complainant fell to the floor but the appellant was able to keep his footing.  The trial judge thought it “inconceivable” that, if this event had occurred as described by the appellant, the appellant would not have fallen with her.  He considered the appellant’s explanation that he was “nimble-footed” to be inadequate to explain this apparent anomaly.

THE APPELLANT’S SUBMISSION

1. The appellant addressed the evidence by reference to a number of complaints about findings or statements made by the trial judge in his reasons.  We will consider each of the complaints made by the appellant. 

1. His first complaint is that that the trial judge made the following finding, which is not supported by the evidence, at [54], “At no time did (the appellant) suggest that (the complainant) should feed their son.”

1. It is true that at [54] of his reasons, the trial judge makes this statement, however it needs to be considered in the context of what he was referring to in that paragraph.  The trial judge was describing the contents of the two audio-visual recordings made by the appellant, and placed in evidence at the trial.  The trial judge observed, correctly as we understand it, that in these recordings the appellant is not shown as suggesting that the complainant should feed their son.  There is no merit in this complaint.

1. The appellant complains that the trial judge took into account an irrelevant consideration when, at [56] of his reasons, he said, “... [the complainant] denied that when he pulled her scarf, they were both falling to the ground.”  The appellant submits that his case was that he pulled on the complainant’s clothing and then they fell to the ground.  He submits that it was never his case that the pulling of the clothing occurred solely as they were falling to the ground.

1. With respect, this complaint is misconceived.  At [56] of his reasons, the trial judge was simply summarising the evidence given by the complainant.  In the course of cross-examination of the complainant, the appellant’s then counsel put to the complainant that “if he pulled your scarf it was during the time that you were both falling”.  The trial judge’s statement at [56] is an accurate summary of the complainant’s evidence.

1. The appellant then complains that the trial judge should have made a finding at [57] of his reasons that one of the audio-visual recordings depicts the complainant in possession of the knife.  Referring to his observations of two photographs taken from the contents of the audio-visual recording, the trial judge said, “There was a light patch in front of what was clearly (the complainant) in the photograph.  It is possible that it is the tip of a knife, but it is by no means certain.”

1. Again, the appellant’s complaint is misconceived.  The trial judge was describing what he could see in the photograph, not making a finding of fact.  In fact, there was no dispute that the complainant obtained a knife during the course of the incident at their house.  Whether the photograph actually depicted her holding the knife is of no significance.

1. Next, the appellant complains that the trial judge, at [94] of his reasons, made a finding in the following terms, which the appellant says is not supported by his evidence: “...  apparently at the bus stop he had admitted grabbing her arms to try and stop her leaving.”  The basis for this statement is apparently questions and answers 108 and 109 of his record of interview with police, concerning the conversation between the appellant and police at the bus stop:

Q108   Yes.  Why is it when we asked you about – or when I asked you      about you grabbing her arm, you said you – you admitted that you          did grab her arms there to try and stop her leaving I think it was you        said then, on the side of the road?

A108   Um, I did give her a hug earlier before the kitchen experience.

Q109   Yep.

A109   Maybe I confused those.

1. It is notable that in his answer to question 108 the appellant does not deny that he told police at the bus stop that he had grabbed the complainant’s arms to try to stop her leaving.  An examination of the record of interview reveals that the appellant was not afraid to contradict descriptions of events put to him by police, so that it is strange that he did not contradict the description at question 108 of what police said he had said to them if that description was inaccurate.  Instead, at question and answer 109 the appellant suggests that he, himself, may have confused two incidents.  The trial judge was entitled to consider the appellant’s answer to questions 108 and 109 as tacitly accepting the description of the prior conversation there put to him by police.

1. In any event, at that point in his reasons the trial judge was simply reciting the evidence in the trial.  He was not making any findings of fact, and his ultimate findings make no mention of this matter.  There is no substance to this complaint.

1. The appellant complains that at [129] of his reasons, the trial judge said: “[the appellant] said that the baby was crying and suggested that this could be heard on the videos.  I listened to both of them a number of times but could not hear that.”  The appellant submits that the baby can be heard crying in the video.  This was a factual finding that was open to the trial judge on the evidence.

1. The appellant’s next complaint is not easy to understand.  By reference to argument during final submissions at the end of the trial, the appellant submits that the trial judge “directed the Court in respect of his opinion that there was a melee” and “if there were melee then, as stated by the trial judge, the consent of the complainant was implicit if an assault upon her ensued”.

1. Questions directed to counsel in the course of argument are not directions.  It was clear that the question of the complainant’s consent to the appellant’s actions, and whether those actions were intentional or accidental, were raised by the appellant’s counsel in the course of the trial.  In his reasons the trial judge makes findings of fact with respect to these issues.  Those findings of fact, by necessary implication, reject the factual proposition that the incident was a “melee” in which the complainant voluntarily participated.

1. The appellant’s next two complaints may conveniently be dealt with together.  He notes that at [152] of his Honour’s reasons, the trial judge said:

“Ms Warwick also submitted, as I had earlier suggested to Mr Hickey, that I could take judicial notice of the physics of the suggested manoeuvre where (the appellant) is claimed to have lifted (the complainant) off the ground with one hand, making it an impossible feat.  I note, however, that (the appellant) conceded that it may have occurred, though denying that it was an intentional assault.” 

The appellant complains, as we understand it, that the trial judge made a finding that the alleged act was physically impossible, and that if that were the case his “admission” that he may have lifted the complainant off the ground by her scarf  had to be rejected.  He also complains that the trial judge made a finding that he had admitted to lifting the complainant “in accordance with the complainant’s version of events”, which was, the appellant says, not what was admitted.

1. At [152] of his reasons the trial judge was reciting a submission made by the accused’s counsel.  Reference to the transcript of the trial (pp 131-132) shows discussion between the trial judge and the Crown prosecutor about the Crown’s contention that the fact that the appellant was significantly heavier than the complainant was relevant to the question of whether he could have lifted her off the ground as she alleged.  The trial judge noted that he could not take judicial notice that the appellant’s weight was relevant to his capacity to lift the complainant.

1. What the trial judge was addressing at [152] were submissions about whether it was possible for the appellant to have lifted the complainant off the ground.  The trial judge noted the appellant’s submission that he should find it was not possible.  However, the trial judge correctly observed that the appellant had admitted the possibility that he may have lifted the complainant off the ground, albeit in different circumstances to those alleged by the complainant: (see trial transcript, p 98 lines 19-24).  Ultimately, the trial judge did not find, as a question of fact, that he was satisfied that the lifting occurred as described by the complainant.  The appellant’s complaint on these matters is misconceived.

1. The appellant further complains that at [159] of the trial judge’s reasons, his Honour fails to make a specific finding that the audiovisual evidence supported his evidence that the complainant was sitting on the couch with the knife during part of the altercation after having produced the knife.  It is clear that the trial judge was aware of this evidence, and the way in which the appellant’s counsel submitted it was relevant.  The trial judge was entitled to give that evidence such weight as he saw fit in determining the relative credibility of the complainant and the appellant.  For our part, we consider it a matter of detail not significantly affecting the credibility of either party.

1. The appellant complained that the trial judge made findings that were not open to his Honour in that at [162] of his reasons the trial judge said that the appellant “did not tell police at the bus stop when first approached that (the complainant) had pulled his hair ...”. The appellant referred to the evidence of Constable Thomson to the effect that when he spoke to the appellant at the bus stop he did not get “a full account in as long a detail as [he] did off [the complainant]”.  Constable Thomson said, “I asked him a particular question that I can recall and I got an answer to that question.” (transcript, p 73 lines 22-24) The appellant submits that the evidence is that he was asked, and responded to, a single specific question.  He therefore submits that there is no basis for an allegation that his evidence in the trial was inconsistent with what he said at the bus stop, or that he had omitted details at the bus stop which one would have expected him to include. 

1. In our opinion there is no substance to this complaint.  It is notable that Constable Thomson referred to a specific question “that I can recall”.  It is clear from the contents of the record of interview that police, at that time, suggested that there had been a more extensive conversation between the appellant and police at the bus stop.  At question 102 police asked the appellant whether he agreed that during the conversation at the bus stop he mentioned possibly having pulled lightly on the scarf that was around the complainant’s neck.  At question 108 police asked the appellant why it was that he said that he had grabbed the complainant’s arms to try and stop her leaving when he was questioned about that at the bus stop.  All of this suggests that more conversation occurred at the bus stop than Constable Thomson remembered when he came to give his evidence.  Certainly it suggests that the appellant gave police his version of events in some detail.

1. In addition, neither the Crown nor counsel for the appellant asked Constable Thomson what question he had put to the appellant, and what the appellant replied.  It seems reasonably clear from the record of interview that the appellant was asked by police at the bus stop for his version of events.  When asked by police at question 111 why he had not mentioned his allegation that the complainant had pulled his hair when he spoke to police at the bus stop, the appellant did not suggest that no occasion had arisen in that conversation for him to make such a complaint.

1. Next, the appellant complains that the evidence was stale in the mind of the trial judge when he came to render his decision, and that the trial judge made findings that were not open to him.  The trial was conducted on 5 and 6 October 2010, with the trial judge delivering judgment on 1 June 2011.  The period of eight months taken by the trial judge to give judgment is longer than we would have expected, bearing in mind the nature of the charge and the straight forward nature of the evidence.  However, the delay is not such as to lead to a conclusion that the evidence given by the witnesses was stale in the mind of the trial judge at the time that he came to write his reasons. In any event, delay in and of itself is insufficient, without more, to show that a fair trial has been denied: see Haros v Linfox Australia Pty Ltd [2012] FCAFC 42 at [30] where the Full Court of the Federal Court said:

There are many reasons for caution in finding that a judge has denied fairness to the losing party in a case by reason of delay. A judge will sometimes make a point of preparing a draft of the facts of a case at the first opportunity after the trial has finished, while the details of the evidence are still fresh in his or her memory. It might be many months before judgment can be completed, owing to work pressures, poor health or other reasons, but the quality of the judgment will not suffer by the delay in those circumstances. The evidence in a case might be voluminous, but the issues that arise might turn out to be susceptible of resolution without reference to all of the detail of the evidence. Many cases develop a character as they proceed, which enables the judge to recall all that is necessary to write a judgment, even after a considerable time has elapsed. In many cases, all that is necessary is to return to the case to bring back the memories of the trial...[T]ranscript will be available to supplement and refresh memory. In determining whether there has been excessive delay, sufficient to deny fairness to a party, much more needs to be examined than simply the length of the delay.

1. The appellant’s complaint that the trial judge made findings that were not open to him concerns evidence that was given concerning the appellant’s care for his son on the date of the alleged offence.  We consider that the observations made by the trial judge at [163] and [164] of his reasons were open to the trial judge on the evidence.

1. The appellant further complains that the trial judge took an irrelevant consideration into account when he stated, at [165] of his reasons, that the appellant “had been drinking that day ...”. The appellant complains that this was not “led by the Crown”, although he accepts that it appears in his record of interview.  There is no substance to this complaint.  The appellant accepts that he told police that he had consumed beer on the morning of the date of the alleged offence.  The record of interview containing that statement to police was evidence in the trial.  It was therefore available for the trial judge to use.

1. The appellant contends that the trial judge made a finding of fact contrary to the material evidence when he stated, at [165] of his reasons: “(the appellant) also appears not to have told police that he followed (the complainant) twice to the bus stop ...”. There is some substance to this complaint.  In the record of interview at question 119 the appellant does tell police that he had earlier followed the complainant to the bus stop at the primary school in his car.  We accept that the trial judge made an error of fact when he concluded that the appellant appeared not to have told police that he followed the complainant twice to the bus stop. However, it was an error of fact of no material consequence, as to which see [72] below.

1. The appellant next complains that the trial judge made findings that were not open to him in that he stated that he formed the clear view that the complainant was generally a witness of truth.  At the trial, counsel for the appellant put before the trial judge in submissions those matters which were said to be relevant to the complainant’s credit.  It was a matter for the trial judge to determine to what extent he accepted those criticisms of the complainant’s evidence, and to what extent they may have impacted on the complainant’s credibility.  It was open to the trial judge to form the view that the complainant was generally a witness of truth.  The appellant further complains that the evidence raised the possibility that the mark observed on the neck of the complainant after the alleged incident had been accidently inflicted.  He complains that the trial judge gave that matter no further consideration.  We do not accept that submission.  It is quite clear that the trial judge considered the question of accident, and dismissed it. 

1. The appellant also complains that the trial judge made a finding at [170] of his reasons that the evidence given by the appellant about the physical altercation between himself and the complainant was “quite confused and vague”, unlike the evidence he gave of almost everything else.  We are satisfied that it was open to the trial judge to make this finding. 

1. At [171] of the trial judge’s reasons he states that he finds it “quite curious” that the appellant would record the confrontation between himself and the complainant, but only partially.  The appellant complains that this observation is inconsistent with the presumption of innocence, as suggesting that the appellant should have proved his innocence by taping the whole of the incident.  We are satisfied that there is no substance to this complaint.  The trial judge was entitled to observe that it is unusual for a person in the position that the appellant said he found himself in on the date in question to make a recording of this incident.  The trial judge was further entitled to observe that, having decided to record the incident, it was curious that the appellant determined to record only part of the incident.  Whilst the trial judge stated that he found these facts to be curious, it does not appear from the terms of his reasons that he gave significant weight to these issues in determining the appellant’s credibility.

1. The next matter raised by the appellant was a criticism of the trial judge’s reasons at [172], where he stated that he found it “quite difficult to understand” how the appellant’s evidence of the physical altercation between himself and the complainant.  The trial judge said:

“(the appellant) said that (the complainant) was poking him in the chest.  She must then have been in front of him.  He then says she grabbed his hair.  That must have been from in the front.  He then says she was behind him, but I found it really hard to see how that occurred”. 

The appellant complains that the trial judge ignored his evidence that he had turned after the complainant grabbed his hair, and before he reached back and grabbed the complainant’s scarf. In our opinion, the appellant has misunderstood what the trial judge was saying at [172]. Like the trial judge, we find it difficult to understand why the appellant would twist to turn his back to the complainant, when the complainant had taken told of his hair and was pulling it. The complainant is shorter than the appellant. We consider that it would have been a particularly awkward manoeuvre for the appellant to have twisted so as to turn his back to the complainant after she took hold of his hair. There would also appear to have been little point in such an action.

1. At [173] of his Honour’s reasons, the trial judge noted that the appellant said that he “reached behind him and pulled on her scarf, apparently to steady himself.”  The trial judge thought that this was inconsistent with his concession that he may have lifted the complainant off the ground.  The appellant complains that there is no inconsistency in this material as it was possible that the complainant may have been raised from the ground in the process of being pulled from the appellant’s back.  If, as the trial judge suggested, the appellant reached over his shoulder and pulled on the scarf of the complainant in order to steady himself, it is inherently improbable that he would have lifted her off the ground.  The scenario presented by the appellant in his submissions on this appeal, that the complainant may have been lifted off the ground by him when he was in the process of pulling the complainant off his back, raises the inherent unlikelihood of the appellant’s evidence that he twisted so as to present his back to the complainant after she took hold of his hair.  If, as the appellant suggested, the complainant took hold of his hair while they were face to face, the obvious response would have been for the appellant to take hold of the complainant’s hand or hands so as to free himself.  Twisting his body so as to present his back to the complainant is an inherently unlikely response to that situation.  All that twisting his body in the way that he described could do was to make it more difficult for him to address what he says was the complainant’s attack upon him.

1. The appellant further complained that the trial judge had taken the view that if events had occurred in the physical confrontation between the appellant and the complainant as described by the appellant, it was inconceivable that the appellant would not have fallen with her to the ground, either on top of her or beside her.  The appellant complained that evidence was given that he did “fall”, but not fully to the ground as she did.  It is quite clear that the trial judge recognised that it was the evidence of the appellant that he did not fall all the way to the floor.  The trial judge’s observation was that it was inconceivable that the appellant would not have fallen all the way to the floor, the same as the complainant, if events had occurred in the way in which he claimed.  This was a view which was clearly open to the trial judge on the evidence before him.  The further complaint by the appellant that there was no cross‑examination as to the meaning of the phrase “went to the floor” is without merit.  In the circumstances of the evidence before the trial judge, it was clear what was being referred to. 

1. The appellant also complains of the statement at [176] of the trial judge’s reasons, that he was satisfied that the appellant became “quite heated and angry”, whilst he found that the complainant was “angry and upset”.  He complains of the language used, in that he is referred to as being “heated” whilst the complainant is merely “upset”.  The appellant claims that emotive language such as this was designed to sway opinion in the absence of a basis for a proper finding of guilt against him.  That last submission begs the question: Whose opinion does the appellant suggest the trial judge was trying the sway?  This was a trial by judge alone, so there was no jury who could be influenced.  This complaint has no merit.

CONSIDERATION AND CONCLUSION

1. We have considered each of the individual complaints made by the appellant, and treated by us as particulars of the appellant’s submission that the verdict was unsafe and unsatisfactory.  We have determined that there is no merit in all but one of those complaints.

1. The justified complaint referred to at [63] above was not sufficient by itself to show that the verdict of the trial judge was unsafe. It was not an error of sufficient consequence to affect the safeness of the verdict. What the appellant told the police about following the complainant to the bus stop was not a critical factor in the primary judge’s determination of whether or not an assault had taken place.

1. Even accepting that the trial judge was in error in suggesting that the appellant may not have told police that he had followed the complainant twice to the bus stop on the day in question, we are satisfied that it was open to the trial judge on the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty of the offence of common assault. 

   I certify that the preceding sixty two (62) numbered [12] to [73] paragraphs are a true copy of the Reasons for Judgment herein of their Honours Justice Burns and Justice Marshall.

   Associate:

   Date:     21 December 2012

Solicitor for the appellant:  The appellant appeared in person
Counsel for the respondent:  Mr J Lundy
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  7 August 2012
Date of judgment:  21 December 2012