Song v McLennan
[2021] ACTSC 275
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Song v McLennan |
Citation: | [2021] ACTSC 275 |
Hearing Date: | 21 July 2021 |
DecisionDate: | 22 October 2021 |
Before: | Mossop J |
Decision: | See [203] |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal from conviction – appeal by way of rehearing – offence of intentionally and unlawfully choking, strangling or suffocating – whether finding of guilt was unreasonable or cannot be supported by the evidence – whether magistrate misapplied the Liberato direction – whether there was a miscarriage of justice – appeal dismissed |
Legislation Cited: | Crimes Act 1900 (ACT), s 28(2)(a) Criminal Code 2002 (ACT) Magistrates Court Act 1930 (ACT), Div 3.10.2 |
Cases Cited: | De Silva v The Queen [2019] HCA 48; 268 CLR 57 M v The Queen (1994) 181 CLR 487 Robinson v R [2006] NSWCCA 192; 162 A Crim R 88 |
Parties: | Xiowei Song ( Appellant) Ross McLennan ( Respondent) |
Representation: | Counsel M Jones ( Appellant) K McCann ( Respondent) |
| Solicitors Kamy Saeedi Law ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 10 of 2021 |
Decision under appeal: | Court: Magistrates Court of the ACT Before: Special Magistrate Campbell Date of Decision: 8 February 2021 Case Title: McLennan v Song Court File Number: CC 7999 of 2020 |
MOSSOP J:
Introduction
This is an appeal from a decision of the Magistrates Court. On 9 February 2021, at the conclusion of a two-day hearing, a special magistrate (the magistrate) found the appellant guilty of a single count of intentionally and unlawfully choking, strangling or suffocating another person contrary to s 28(2)(a) of the Crimes Act 1900 (ACT). On 12 March 2021 the magistrate convicted the appellant and required him to enter into a good behaviour order for a period of 18 months.
The appeal is an appeal by way of rehearing. The principles to be applied to appeals under Div 3.10.2 of the Magistrates Court Act 1930 (ACT) are well known: see for example, Peverill v Crampton [2010] ACTSC 79 at [24].
Grounds of appeal
The grounds of appeal set out in the Notice of Appeal dated 17 March 2021 are as follows:
(a)The conviction was unreasonable or cannot be supported by the evidence.
(b)The learned magistrate misapplied the Liberato direction leading to a miscarriage of justice.
(c)The rejection by the learned magistrate of evidence given by the complainant in court on 8 February 2021 insofar as that evidence was contrary to the complainant’s evidence given in the evidence-in-chief interview conducted on 1 July 2020, in the absence of cross-examination of the complainant by the prosecutor, led to a miscarriage of justice.
The proceedings below
The matter was heard on 8 and 9 February 2021. At the commencement of the case, the prosecutor gave an opening.
The prosecution case was that on the evening of 29 June 2020 the appellant was at home with the complainant, who was the appellant’s wife. Also present were the couple’s two daughters who were aged three and eight years old at the time. The couple were said to have argued about one of their daughters while the appellant was helping his youngest daughter bathe. During the course of that argument, the complainant stated that she may have an “emotional breakdown”.
The couple left the room and the argument continued. They returned to the bathroom and the appellant was trying to dry their daughter’s hair. The complainant then had “an emotional breakdown”. The elder daughter took the younger daughter to another room.
At some stage, the complainant knelt down on the floor in front of the appellant and begged. In the course of this, she is said to have injured her forehead.
The appellant was then alleged to have held both his hands around the complainant’s neck and said, “I’d rather the daughter have a murderer father instead of letting the daughter see you … crying”. The holding of hands around the neck is said to give rise to the offence. The children came back into the bathroom and the appellant stopped. The following day the complainant attended Crace Medical Centre and spoke to a doctor there. On the same day she messaged a friend, Ms Y, and asked if she could go to the police station with her. On 1 July 2020 the complainant and Ms Y went to Belconnen Police Station then Gungahlin Police Station. The complainant participated in a family violence evidence-in-chief interview.
On 2 July 2020 the complainant attended Canberra Hospital with Ms Y. The prosecutor referred to the possibility that the complainant may be unfavourable and the possible need for an application under s 38 of the Evidence Act 2011 (ACT).
In opening, counsel for the appellant indicated that the case involved a factual dispute about what happened. The competing version of events effectively involved the complainant engaging in a form of self-harm following the argument. He identified that the appellant’s case was that he did make physical contact with her arm and neck during the course of trying to prevent her from self-harm and to try to calm her down.
The evidence of the witnesses who gave evidence below may be summarised as follows.
Dr Zahedpur
Dr Mehdi Zahedpur was the first witness called by the prosecution. He was a general practitioner (GP) working at the Crace Medical Centre on 30 June 2020. Dr Zahedpur’s notes, which were marked for identification, indicated that he had a consultation with the complainant and a friend. He had no recollection of the consultation, nor did he recall how much of the information provided to him was translated by the complainant’s friend. However, he did say that he was convinced that the patient had some degree of English. He could not exactly recall whether he had any independent conversations without the assistance of her friend. He said that he was convinced he did not need to ring a third‑party translator service.
In cross-examination, Dr Zahedpur agreed that his notes indicated that this was the complainant’s first appointment with him and that her regular GP was located elsewhere.
He said that he was told that the patient was taking no current medications. He could not be sure whether he was told that by the patient or the person who was assisting with the translation. However, he was convinced that the source of information was reliable. He recorded that the patient had depression two years ago and that she took some medication for a short time. He thought he had discussed other issues in relation to her mental health but there was nothing to record. He agreed that he was confined to knowledge that was given to him by the patient or by the patient through the translator. He said that in relation to the history, he obtained that through the translator or the patient. He could not tell which from his notes.
There was no re-examination.
Counsel for the prosecution said that the notes should remain as a document marked for identification (an MFI) until the person who attended with the complainant could be identified. They were tendered later in the proceedings and became exhibit 4.
The complainant
The complainant gave evidence with the assistance of an interpreter.
Evidence-in-chief interview
The family violence evidence-in-chief interview undertaken on 1 July 2020 was played back to the witness.
In that interview she had spoken to Constable McLennan and Senior Constable Adams. An interpreter was on the phone. The name of the interpreter was not identified. The quality of the interpretation was not great, the translated version of the witness statements still giving the strong impression of English being a second language. This will be apparent from the portions of the transcript set out below.
Before the Sunday, the complainant and her husband had some arguments. On Monday night she had a shower. Her husband and younger daughter went and had a shower. Her husband raised his voice. She said he should not speak to people that way. She went to prepare clothes for her daughter. She noticed that her husband said something and realised he was criticising her. He and her daughter had an argument. Her daughter said “I only want mummy. I don’t want daddy”. She told the interviewers through the interpreter that she said to her husband “If you care about her like a parent this much you should, like, behave yourself. Why do you treat her mother, like myself - if you care about the parenting or the education of the child so much, you should, like, treat me in a better way.”
The next evidence is a bit difficult to understand. The translation appears to have been less than ideal to convey, in English, what the complainant was intending to convey. It appears to involve the complainant saying that she would not allow her child to say “I only want mummy, not daddy” but that the appellant did not believe her. She then said that they had previously had some arguments and she had “some emotional breakdown, so I cried for a long time”. She asked her husband not to continue this topic or she would have “another emotional breakdown” but he did not stop talking about it.
The next evidence was not easy to understand. It appears that the complainant kept talking to her husband. As he was getting out of the living room “he was really close to me, like, our nose to nose, very close distance, and he use some verbal threat. He warned me that the bottom line – the child is the bottom line and he said I shouldn’t teach daughter in this bad way.”
She subsequently returned to the bathroom to dry her child’s hair. The argument seems to have continued.
So he’s like keep wronging me in the same way and make me angry, so I had an emotional breakdown. So I’ve been looking after children at home for eight years and I have some mental health issue. So it’s easy for me to have an emotional breakdown. So I just keep begging him like that please – please don’t keep talking about these, and later on, ah, he pushed the younger daughter away. My older daughter took my younger daughter to the room and I’m not sure about how far away they went. Then later he became physical to me.
…
Yep, so he’s like choking my neck with all his strength and he said, “I’d rather the daughter have a murderer father instead of, like, letting the daughter seeing you the mother crying.
She was asked to describe how he was choking her and said:
So - so he was holding my neck with his two hands and he exert a lot of strength. I were –I felt like his hand was trembling and he slapped me once on the face. That’s – I can’t remember. Maybe he slapped me more, yeah. But I can remember one slap and choking my neck with all his strength.
She said it was “very scary”. She said the children later returned and he stopped. She said that later on he got her up from the floor and touched her forehead with his hand. She said that when she was kneeling down and begging him there was an injury on her forehead and her husband was explaining to the daughter that he was touching her to make her feel better, trying to hide or conceal what he had done.
She said she left a message for her neighbour in a group chat. She denied giving her husband permission to strangle or slap her. She said she had been together with her husband for 13 years and they had been married for nine years.
She was asked about any injuries and she said it was difficult for her to speak and when she swallowed or drank water it was really painful.
She was asked to describe the injuries and she said: “Yeah, so my husband pushed me against the floor and using his both hands to choke my neck, that’s the reason for this injury.
The complainant said that later her friend knocked on the door and the friend’s husband took the complainant’s husband away.
Further examination-in-chief
After the family violence evidence-in-chief interview was played, counsel for the prosecution asked some further questions in the examination-in-chief. The disc with the family violence evidence-in-chief interview was tendered.
The complainant was asked what she was doing during the emotional breakdown. She said:
So the first thing I remember is that I knelt down and I kowtowed. I remember I knocked my head heavy trying to kowtow myself.
She could not recall how many times she knocked her head on the ground. But said that it was her husband who tried to stop her. She remembered that when she was knocking her head on the ground she said “let’s stop talking about this topic” and “I’m going crazy, I can’t control myself”. She said that when her husband dragged her up, she was trying to push things around her away. She said she knocked her head on the wall. When her husband tried to hug her or carry her in his arms, she felt very anxious and nervous. She thought that she also bit him.
She was asked how her husband had dragged her up and said “he grabbed my arms and pulled me up and tried to stop me from knocking my head at anything”. She was asked when her husband put his hands on her throat and she said that she thought it was after she bit him. She said she was closing her eyes so she thought she probably bit his chest. She was quite sure he was in front of her because she could feel his breath. She was asked at what stage her husband slapped her and she said:
Because at that stage I was out of control. I couldn’t calm down, and I was clenching my teeth. And I did not stop hurting myself, and I was confused. So, I didn’t stop hurting myself, and I didn’t stop pushing him.
In response to a question from the prosecutor about how the complainant was pushing the appellant, the following exchange occurred:
So when he was trying to get close to me, I can’t remember I used my feet or my foot. But I used all my strength, I tried to stop him from getting close to me.
…
Was this when you were standing?---At that time probably I was on the ground again. Because I didn’t want to stand beside him, I was trying to escape, so I was lying down ‑ lying on the ground again.
At what stage did you lie on the ground again?---I can’t recall the details. But I was hitting myself, and he was trying to stop me. And because both him and me are using a lot of the chance [sic], as a result, I was lying on the ground.
Was this after your husband put his hands around your throat?---No …
…
He was trying to stop me from hurting myself, and I tried not to let him do - I didn’t want him to stop me. And so I was hitting him and pushing him, and he couldn’t control me.
In relation to the time at which the slap occurred, the complainant said “I think it was in the process, it was during process when he was trying to stop me”. She described the slap as “patting my face, it was like patting me to wake up. This is the most serious incident, when I lost my control myself.”
When asked by the prosecutor about the appellant putting his two hands around her neck, the following exchange took place:
So because during the argument he blamed me for everything. So when he was trying to get close to me, I thought he had the bad intention - just like was he trying got [sic] hurt me. And when he touched my neck, I was so scared. So I was struggling hard.
Do you remember how long his hands were around your neck for?---Okay. I guess it was not too long, because I was pushing him, hitting him. I was trying to push him away, and I used a lot of strength and couldn’t control myself. But it didn’t take too long. I guess, because our children came up.
When you say you were trying to push him away, was this during the time that his hands were around your neck?---I help with - I was pushing him all the time.
Where on his body were you pushing him?---Everywhere. His shoulders, body and the face. I didn’t want him to get close to me. I was trying to whack out myself.
The complainant was then asked about when her friend, Ms O, came to the house with her husband after the incident. The complainant described Ms O as having told her previously that she had a “very serious mental disorder”. She said they went out to do exercise and “we talked lot about bad emotions”, so when the incident happened the first thing she did was get this person to help her “because I was afraid being hurt”. Ms O and her husband came over. The evidence was:
So after she met me and she actually told me to go see a GP, general practitioner. So at that - during that night, we talked a lot. And I’m not sure how serious my mental disorder is. But I have this kind of phobia. And my friend, this lady, my friend - sorry. She has very serious mental disorder. I even know what kinds of medication she was taking. And she was influenced by me - sorry, I was influenced by her. And so---
… Okay, and she felt like my husband was trying to hurt me, and I needed to see the doctor and to keep the evidence.
She was asked about going to see a doctor that her friend had recommended and said:
Okay, so because the - during the following day I haven’t recovered full on the breaking down. So I was in a better state, I was at a better state. And I actually didn’t tell her when I soon to go to see a doctor. But he drove her - she drove her car and made all the bookings. I didn’t even know the name of the GP. I was still confused
Did you end up speaking to the GP?---Yes, but I only answered some simple questions, because my English was not good, and I was confused. It was my friend who did most of the talk with the doctor. And because of - at that time I couldn’t speak much English.
Later, in relation to going to see the doctor, she said:
As for the friend who actually took me to see the GP. She insisted that I had to go to see the GP, and then she pushed me a lot. And she said that she can ask somebody else to take care of her children, and she can go to see the - she could go to see the police. But when … (inaudible)… I told her that I have my children. Like, I didn’t have to go to the police station, but she insisted. So I told the person, my friend who went to the police station with me, about the incident.
She identified that person as a Ms Y. She was asked about the conversation that she had with Ms Y. She said:
I only asked her whether she had time on the following day, and whether she can - whether she could go to the police station with me. I told her that I had a - I had an argument with my husband again, and that we had body contact.
This was a WeChat message conversation which was admitted into evidence.
She was then shown WeChat messages in Mandarin Chinese. The relevant messages were translated in which the complainant said “I want you to accompany me to the police station, to report it” and “Yesterday he almost choked me to death”. “This person is provoked”, “I don’t want to live with him anymore” and “Because my throat, it’s not easy for me to speak. It really hurt”. She identified a photograph of her neck within the chain of messages taken on 29 June 2020. It showed some reddening. A message on 30 June 2020 at 12:45pm said “I don’t want him to get close to my children”. The messages said “[t]he only thing I can recall about yesterday is panic. If I want to stay alive, I have to be decisive. I am not other alternative”. Later in the message chain on 2 July 2020, she said “I am near the hospital. Please let me know when you arrive, and you can park your car in other places. It’s difficult to find a parking space in a hospital”. She had met Ms Y on that day at the hospital. She was assessed at the hospital. She said “My friend did all the talk for me on that day”. On 3 July 2020 at 12:36pm a message said “He is with a Mighty Pencil”. (This translation was not explained). The messages then said “his visa might be cancelled. I checked the family violence law. I didn’t expect it - I didn’t expect that it could be so serious”. Ms Y then responded “He didn’t have the citizen, right?” To which she replied “No” and then wrote “I’m really scared. I don’t know what to do”.
In evidence she said that she checked the family violence law after her husband was arrested. Finally, she identified some photographs that were taken when she saw the police and these were tendered. They include photographs of the left-hand side of her face and neck and a mark on her right upper arm.
Cross-examination
The complainant was then cross-examined. In cross-examination she was taken back over the events on 29 June 2020. She agreed that after the appellant had bathed the youngest daughter, the daughter said that she would prefer her mother to dry her rather than her father. The complainant then came to assist her with drying. The appellant saw this as some form of criticism because he misunderstood and thought that she was trying to take over the care of the child. She agreed that the appellant’s concern was that by indulging the child she was undermining his parenting. She agreed that they had had similar discussions in the past and that he had said many times that he did not want to be undermined in front of the children.
The complainant agreed that being a good mother was very important to her and a central part of her life. She agreed it was important that her husband saw her as a good mother. She agreed that if he did not think she was doing the right thing, that was something serious for her and very distressing and emotionally upsetting.
The complainant agreed that being challenged by the appellant about not being a good parent put her in a “bad headspace”. She agreed with the proposition that when challenged on her parenting “you get very emotional and become unreasonable”. She said “I would become agitated to such a degree that I would stop thinking. I didn’t know what I was – was doing.” She agreed that on that evening she was upset to the point that she lost control. She agreed she knelt down and scratched her head vigorously. She agreed that she was knocking her head or kowtowing on the tiled floor. She agreed that she had knocked her head on the floor before, but she could not recall whether there was bleeding or not. She agreed that the appellant knew of the previous occasion when she had hit her head on the floor and injured it. She agreed that she had struggled with her mental health for a number of years. She agreed that she was susceptible to breakdowns.
The complainant agreed that on 29 June 2020 she was banging her head on the tiles. She said she knocked her head on the gap between the tiles and that was why she was bleeding. She agreed that she was screaming and that she could not control herself. She said that her screaming would have scared the children. She agreed that the appellant said words along the lines of “Don’t let the children see you like this”. She said that she and the appellant had reached a consensus that they should not shout in front of the children.
The complainant agreed that the appellant had attempted to assist her to get off the floor. She agreed that he was trying to stop her hurting herself. She agreed that she would not accept his help because she was too out of control. It was suggested that he was grabbing at her arm trying to stop her from hitting her head but she just kept going and she said:
That’s right. And the same scenario happened many times. So, when it – when it took place I didn’t want anybody to get girls [sic] to me.
And you didn’t want people to get close to you in that out of control headspace you were in?---I didn’t want him to get girls [sic] to me because I was angry with him.
But do you accept now that he was trying to help you to stop you from hurting yourself?---Yes, I – he want – he wasn’t – I didn’t realise that until two days after the incident because two days after the incident I became sober. Sober.
The reference to sobriety was queried and the interpreter said “I was in a clearer mind ‑– straight.”
The complainant recalled that she did scratch the appellant and that she bit him. She agreed that the appellant repeatedly asked her to calm down. She agreed that she went back to hitting her head on the floor and on the tiles of the bathtub. She was then asked questions about the appellant grabbing her around the neck as follows:
And [the appellant], again, tried to restrain you to stop you from knocking your head?---Right. He, of course, he couldn’t leave me alone.
And this time he grabbed you around the neck area?---Because he was trying to stop me but he – he wasn’t able to put me out of control.
…
To be clear, he grabbed you with only one hand but he did grip you with that hand around your neck---(Through interpreter) I did feel his hand but I – I couldn’t tell – I can’t tell whether he – it were two hands or just one hand because I was confused when I was talking to the police but I didn’t feel – I couldn’t tell the difference between one hand or two hands.
So, you just – from your perspective you just felt the pressure around your neck, is that right?---Yes, so he was trying to pin me. If he tried to pin me by grabbing my hand – sorry, just one second – he tried to pin me by grabbing my hand I would push him away.
And so, was it after that that he grabbed your neck?---It should be the area around the neck and the chin and he was - - - Okay, and you gave a demonstration - - -?--- He tried – he was trying to put me to - fix me in that position.
And you gave a demonstration when you were answering in Chinese. Are you able just to hold up your hand in the same way on your face or neck area that you just demonstrated please? ---He was pressing – he was pressing me onto the ground.
The demonstration is described as being the witness holding her left hand and placing her hand towards the middle of her neck, fingers on her right side, her thumb on the left side with the thumb and forefinger running along the bottom of the jaw line.
The transcript continues:
And you said he was trying to pin your head, is that right?---Yes, yes, if I got up I could shake my – I could try to shake my head or something – do something like that.
So, the way he was holding you by the neck prevented you from banging your head any more, is that right?---Yes, I – after the incident, I realised that.
Do I take it from that, you’re saying after the incident you realised that. At the time you didn’t realise that?---I got – I felt quite afraid during the night, so if the police knocked at – at my door someday I would think that they are trying to kill me.
The magistrate clarified the previous answer and the answer was that she did not realise at the time that what he was doing by holding her by the head was preventing her from banging her head.
The children then returned. The children were crying and all four of them hugged.
The complainant was asked about calming down or snapping out of her loss of control and responded:
Because at the time my emotion was replaced by a current of fear. I was fearing that my husband – I was fearing that my husband might do something bad to me.
Do you accept now that that was an irrational fear?---Of course.
The complainant then contacted a friend by WeChat and asked her to come over. The appellant left the house. She was asked about the appellant coming back to the house and she said that “I don’t know when he actually came back because during the night I cried and screaming was so hard so I feel asleep so I didn’t know when he came back.”
She was asked about the doctor that she saw. In relation to the information that was provided to the doctor, the evidence was as follows:
And the information that was given to them was all translated by your friend?---Right and she did all the talk. She did all the talk.
And do you have any concerns with the translation and the conveying of information that she gave to the doctor?---Because at the time I was quite upset so I didn’t listen to what they were talking about. I thought that what was said should be correct. But at the time, I was thinking – I was thinking so - - -
…
So, is it the case that you didn’t really understand what was conveyed to the doctor by your friend?---Right. I was in a confused state, I couldn’t say anything.
She said that the friend who took her to the doctor “kept pushing me, telling me to report it to the police” so she contacted Ms Y.
The complainant was asked about Ms Y’s understanding of the process that would be followed if she made a complaint to police.
And is it the case that you have become concerned since that she wants to break up your marriage?---When I went to the police station with her I didn’t realise that because I was – I found it dizzy – I was confused.
But you’ve come to think that later, is that correct?---Right.
She then explained that Ms Y did not like hearing things about happy families and so she never mentioned such things to Ms Y.
In relation to a visit to the Canberra Hospital on 2 July 2020, she said:
I don’t think I said much on that day. It was the – my friend and a social worker who actually talked to the hospital. So, I actually didn’t say much on that day.
The complainant agreed that she had visible injuries on her head. She agreed that her throat was sore from yelling and screaming. She was then asked about the “murderer father” statement that she had told police. She said:
Because at that time I had broken down to let – to such a degree that I was thinking that he was trying to kill me so I was thinking like that the second day.
But you agree he did not say that to you?---I’m sorry that I – because I actually broke down that night, after I broke down I actually couldn’t hear what he said. I guess he was thinking that way.
But he didn’t say that to you, did he?---I couldn’t hear what he was saying.
Okay, I’ll ask the question a different way?---You don’t know if he actually said that, do you?---Right.
The complainant agreed that when she spoke to police she was still very emotionally raw and upset. She also agreed that the argument and the physical contact all occurred in the bathroom.
Re-examination
In re-examination she was asked about telling the truth to the police:
And so, you’ll recall that at the start of the interview with police they let you know that it’s important that you understand that if you say anything you know is untrue you may be committing an offence. Do you recall that?---Yes, I’d admit so. But because at that time I was in a confused state. I was confused and I was thinking that somebody was trying to do harm to me. Just one second. I didn’t lie to the police allegedly. I just didn’t realise the real – what actually happened. I didn’t realise actually what happened and because I was so agitated.
Counsel for the prosecution then sought to cross-examine the complainant about whether her evidence was that telling the police about the “murderer father” comment was in fact a lie. It was objected to. An application was made under s 38 of the Evidence Act2011 (ACT) to permit cross‑examination about that issue. That application was refused, with the magistrate saying that she did not think it was necessary at that stage because what the complainant said in evidence would go to whether or not the magistrate would accept what she said. The magistrate characterised the answer given as quite ambivalent.
The complainant was then asked about the answer that she had given when she was asked by counsel for the appellant about the “murderer father” comment:
And you said that you don’t actually know what the defendant said?---Yes, right. I – because I was overwhelmed by my own emotion, so I told the police because there was a – such a thought in my mind – there was such a thought in my mind.
…
Do you have any independent memory, not based on the police interview but your own memory of what happened?---Yes, he was not – he wasn’t here this third day. Three days after the incident when I was in the hospital and I realised that I had been taken away by my emotion and I created a big misunderstanding.
Sorry, … that didn’t really answer my question. My question was, today, do you have an independent memory of what the defendant said to you the night of 29 June?---Yes, I can recall what happened now. But I have to clearly… (inaudible)… I have – I have listed this disorder – I can’t tell whether those words – I can’t tell whether something has been – was said or was not - or was something I actually created about my thought.
She was then asked about this “disorder”. The evidence was unclear. It was not named and she had not received a diagnosis.
Ms Y
Ms Y was then called. She did not need an interpreter to give evidence.
She was a registered nurse. She knew the complainant for a period of four years. On Tuesday morning she had at text message from the complainant on WeChat asking if she was at work. These communications were recorded in exhibit 2, the WeChat messages. The next day she went to the police station with her. They went to Belconnen Police Station. The complainant did not make a report to police at that stage. Her evidence was:
She had a chat with the police station on – the police officer on duty on that day. I filled in all the gaps in the technical terms that she didn’t really understand. I just filled in the gaps.
They had a chat outside the police station and then further conversations over WeChat. They subsequently met and went to the Gungahlin Police Station. Ms Y was not present when the formal statement was made to police.
The next day Ms Y went to hospital with the complainant. She went inside. She was present when the complainant had conversations with medical staff. She said she “filled in all the gaps about the technical terms she was wanting to ask them but she didn’t know what to say”. She gave as an example the complainant wanting to know what kind of imaging they would need to take and helping her to explain that to the staff.
Ms Y said that when she saw her going into the Belconnen Police Station, she saw a few lines of bruise on her neck and her voice was a bit funny and she said her throat was sore. She said she thought the complainant “was a bit out of it”.
Ms Y said that the complainant got quite lost going to Belconnen and got lost again on the way to meet up to go to the hospital.
The cross-examination was limited. In relation to her evidence that Ms Y filled in the gaps, it was suggested to her that she meant she assisted with translation and she said yes.
Appellant’s interview with the police
Part of the interview of the appellant and police was played before the court adjourned for the day. Immediately prior to the adjournment, counsel for the prosecution raised the possibility that the complainant might need to be recalled if counsel for the appellant wished to put further matters to her in light of evidence given by an additional witness.
At the commencement of the second day of the hearing, the balance of the appellant’s interview with police was played.
Ms O
Ms O was called to give evidence.
She gave evidence with the assistance of an interpreter. She knew the complainant. She often exercised with her. She had attended her house on 29 June 2020 because the complainant sent a message to a group chat asking for help, “asking me to save her and she said that she had argument with her husband”.
Ms O described the complainant as being in the bathroom and “since that day emotionally [the complainant] was quite unstable”. She said she went to comfort the complainant and the complainant was “quite agitated”. She said she could see the injury on her forehead and asked how she got that injury. The complainant kept crying and screaming. It took a long time to calm her down. She said “So the husband was still in the house and so he told me that she didn’t want to live under the same roof with her husband.” Ms O gave the complainant the option of coming to stay at her house or her husband going over to stay at their house. They talked until 2am or 3am and she tried her best to comfort her
Ms O said that when she arrived, she asked the appellant whether he used his hand, that is, whether he resorted to something like violence and he said “No”.
She had a conversation with the complainant in which she said that her husband said something horrible to her. She said it was something like her husband had said “I would rather my children to have a murderer father than having such a mother”. The transcript continued:
And during this conversation did [the complainant] tell you about anything that her husband did to her?---And he - she told me that her husband strangled her neck so hard that her neck almost became flat. And I said, “How come things went to such a degree?” And I asked her, “How can a normal day turn out to be like this?” And she told me that it seems that they had argument because of the kid in the first place. And she got agitated first and her husband and she had argument - started to have argument. So that’s how it ended up like that. That’s it.
Ms O slept at the complainant’s house. She went home at about the time her husband left for work and the appellant left their house. She suggested to the complainant that she should go and see a doctor. The complainant told her that she had a painful throat or sore throat and Ms O could see the purple or red injury on her neck and there was also an injury on her forehead. They went to see the doctor together. When they entered the room “she was able to communicate with the doctor by herself so I didn’t offer my help”. Ms O said that the complainant “told the doctor that her husband hurt her last night and she felt quite uncomfortable around the neck”.
In cross-examination Ms O was asked about being told about the horrible thing that the complainant said her husband had said. It was suggested to her that the complainant was still emotionally unstable and the witness agreed. Ms O was asked about the statement that the complainant had made that her husband had strangled her so hard that her neck became flat and answered:
The original words - her original words was her neck almost become flat. It was unthinkable because I think - I thought that it was unthinkable, something unimaginable. But that was the original words.
Ms O agreed that during the conversation the complainant was “emotionally unstable”.
There was no re-examination.
Constable Ross McLennan
The next witness was the informant Constable Ross McLennan. He was attached to the Gungahlin Police Station. He conducted the family violence evidence‑in-chief interview with the complainant on 1 July 2020. He noticed that she had some red spots on her neck and some bruising and swelling on the neck. She had a bruise on her right arm. On the same day he spoke to the appellant. The appellant participated in an audio-visually recorded interview. The disc containing that recording was tendered and became exhibit 5.
He obtained medical records from the Canberra Hospital in relation to the complainant pursuant to a search warrant. He also obtained medical records from the Crace Medical Centre pursuant to search warrant. The complainant, through her solicitor, had declined to provide consent for those records to be released.
The medical records were tendered and became exhibit 6.
Constable McLennan was then cross-examined. He agreed that he had placed the appellant under arrest at 7:09pm on 1 July 2020. The appellant participated in an interview that evening. Constable McLennan ultimately agreed that at the time of the interview, police had already formed the view that the appellant would be charged and would be going to court.
It was suggested to Constable McLennan that the interview was just an attempt to get further evidence against the appellant. The officer said that police were collecting all evidence whether inculpatory or exculpatory at that stage. He agreed that at that time they believed with sufficient certainty for the purposes of charging, that the appellant had committed the offence.
The prosecution then closed its case.
Interview with police
The interview between the appellant and police tendered during Constable McLennan’s evidence was conducted without an interpreter.
The appellant explained that there had been a previous argument between the couple. He explained that he was very sensitive to noise for a reason which it is not necessary to set out. He described the younger daughter saying “I don’t want daddy. I want mummy”. He described saying that was wrong because it was rude but the complainant said that she would dry the daughter’s hair. He said to the complainant that this was wrong that it passed the wrong message to their daughter. The complainant said that she did not mean it that way. He said that she was kneeling down like praying in front of the two kids and the two kids were crying. He asked her to get up because the kids were watching and crying. He was trying to hold her and lift her up and she grabbed him and then she bit and scratched him. He showed the police a scratch mark and a bite mark.
The appellant then asked the children to go to their room. He yelled to the older daughter to go back to her room. He said that the complainant was scratching her head. At this point she was sitting on the bathroom floor because he had lifted her up, so instead of kneeling down she was sitting against the wall. He said that she needed to calm down and not frighten the kids. He said that she was yelling and she couldn’t control herself. He said “I tried to refrain her because… I can feel that she was controlled again. So the kids came back and the four of us just hug together.” Then the complainant texted her friend that “I’m trying to kill her”. So the friend and her husband came over in about five minutes. The complainant was in the toilet trying to call her dad on the phone. He went to their daughter’s room and put on some cartoons. He then went back to the couple’s house and stayed there overnight. He went back to his house at about 5am on 30 June 2020 and then went to work. The next night he slept in the older daughter’s room and the daughters slept with the complainant.
He was then asked a variety of questions by the interviewing officers. He was asked when he was bitten and scratched. He said it was when she was kneeling down and “I’m trying to hold her up and stop her and I was just trying to help her, so that’s why she was scratching and bite me.”
He was then asked what happened when the kids were out of the room. He said he told the complainant to calm down and that she was frightening the kids. He then said “I’m trying to refrain her because she was, um, she was on the floor”. He was asked what he meant by the word refrain and he said that his English was not that good, he wanted to get legal advice and would like to pass on that question. He recognised that it would be key information and he wanted to make it right. He said that he would talk to a lawyer tomorrow and then try to find a way to describe what happened. Notwithstanding that answer the police continued to ask him questions. He was asked why the complainant might have sent a text suggesting that he was trying to kill her. He said “because I was holding her and refraining her and I think that’s probably why she said, um, will – I was trying to kill her”.
The appellant was asked how he was trying to hold her. He said he would like to get some legal advice on that. Notwithstanding that answer, he was asked whether he could show the interviewing officers. Before he answered this question the police suspended the interview in order to get a translator. The appellant asked whether he could get some legal advice. He said that he had an interpreter’s licence and knew there was quite a bit of difference between interpreters. He said he wanted to make sure the interpretation of what he said was okay by the lawyer.
After a suspension there was some discussion about translators. The appellant made it very clear that he did not understand how the legal system worked here. He said he needed to get some legal advice before he proceeded. An officer recorded that there was some legal advice in terms of a recorded message from Legal Aid (which the appellant had apparently listened to). An officer indicated that they could end the interview now if he wished. However, rather than leaving the matter there he continued: “Now, by ending this interview, you – you remove our ability to gain further evidence and information from you for us to be able to weigh our decision on how we proceed further with this matter.”
There was then some further discussion in which the police suggested that he might be getting a lawyer to “sanitise” what he was going to say. The appellant said that this was not a fair way to describe what he said. He then said that the police were talking to him in a loud voice and he was not concentrating.
The evidence-in-chief interview with the complainant was then played to him. At one point he notes that the translator did not translate the whole of an answer.
At the conclusion of the video, at 11:08pm, the appellant was asked whether there was anything to say about the recording. The appellant then said “I’ll probably just say this in the court then”. The police persisted asking him whether he was sure he did not want to talk about anything he saw. In response the appellant said that the complainant avoided the evidence that she bit and scratched him.
The appellant then said:
So if – if I try all my strength to choke her, and there’s only one bruise like that and there is no hand like that, that’s – because if you’re trying to choke somebody there will be, like, full hand bruise instead of just one. So I’m not – I’m not just saying I didn’t refrain her or there’s no contact, conflict, I’m not saying that, but I would just think the evidence is obvious and, um, by, um, the – she also said, um – I’m sorry, um, when – when she did this interview, where are my daughters?
The appellant then made a long statement about his relationship with his daughters. He then explained in relation to the events of Monday night that when his wife said he was just touching her to cover up what he had done, he said that he was doing that to ensure that the children were not left with a bad impression that even though their mother had a bruise, they did not care about her.
The interviewing officers asked again about the injuries to his wife and he said:
So you’re asking me to describe the restraining behaviour which I said, um, we prefer to get the legal advice to - - -
Okay.
Yeah. Yeah.
So you don’t want to comment on that?
Um, I did - - -
Is that what you’re saying?
I – I – I will admit that there was some refraining behaviour, but I just want to be careful with my wording on that because I know that that will be very critical information.
In relation to the “murderer father” statement, the following exchange occurred:
Yep, do you remember that?
Um, I – I don’t remember I said that.
Yep, you don’t remember if you said that?
I –I – I don’t remember whether I said it or not. I can’t recall.
Okay.
Yep.
All right. Is there any reason why you think you can’t remember whether you said it or not?
Yeah, because I was – um, the kids was freaking out and I was getting emotional as well, so I can’t remember. And I don’t – and the other reason is could be not true and I didn’t say that because – but I can’t remember I said that.
…
Okay, not a problem.
Or could be she did – she – she said she can’t breathe and she’s always having this issue that she – when she is freaking out to try and hurt herself, scratching her head and doing – doing this, like, make her hair messy. So she could be hear something – I don’t know. Or I just – no, I can’t recall I said that, yep.
The appellant was asked whether he slapped his wife. He said “I can’t recall I did that.”
He was asked whether he strangled his wife. After some clarification of what was meant by the question, he asked to get legal advice first.
In finalising the interview, the appellant was asked whether he had been under any inducement to answer questions here today. Although he appears not to have understood precisely what was meant by an inducement (a not uncommon problem even with people whose first language is English), he did raise the fact that Senior Constable Adams had suggested he was trying to sanitise his words and he explained that this was very critical information. He said he wanted to get the right words because English was his second language and he did not want to make the decision by himself (that is, without the benefit of legal advice).
No defence case
Counsel for the appellant accepted that there was a prima facie case and indicated that he did not wish to call any evidence in the defence case.
Submissions
Counsel for the prosecution then made her closing submissions. She identified that the factual issues were as to how the complainant was choked and what, if anything, was said during that alleged choking. The second issue was identified as being whether the choking occurred was identified in the evidence-in-chief interview or whether that choke may, as was accepted in cross-examination, have occurred in the context of lawful defence. Counsel for the prosecution suggested that a Liberato and a Murray direction would both be appropriate. She then gave a very clear outline of the Crown case. She accepted that in some respects the evidence in the family violence evidence-in-chief interview and the evidence in the witness box contradicted each other. She submitted that the evidence of the complainant given at the time when the events were fresh in her memory should be accepted.
She referred to the evidence of Ms O about the making of the “murderer father” statement. She referred to the medical notes as being consistent with somebody who was choked in the way alleged in the family violence evidence-in-chief interview. She submitted that the complaints were made in a time and manner that would indicate that the content was reliable.
In relation to the evidence given in court, she pointed to the absence of recollection of some details. She identified that the evidence that Ms O did most of the talking at the GP was inconsistent with Ms O’s evidence in court.
She addressed the complainant’s evidence that she now believed the appellant was trying to stop her from hurting herself and that within a two-to-three-day period after the incident, she was thinking more clearly. The submission was made that this coincides with the messages she sent to Ms O about how serious the situation was and about the risk that the appellant, who was not a citizen, could have his visa cancelled.
She addressed the difference between the evidence in relation to the appellant using one or two hands. She made reference to the limited evidence about the complainant suffering from a mental disorder. The ultimate submission was that the magistrate should accept what the complainant told police at the time of the family violence evidence‑in‑chief interview and should be satisfied that it was accurate.
She made reference to the defendant’s record of interview and characterised the evidence as essentially that he could not remember whether the “murderer father” statement was made or not.
In relation to lawful defence, the submissions accepted that the issue of lawful defence of another and extreme emergency were raised and that the matter was to be addressed under the Criminal Code 2002 (ACT).
The primary prosecution submission was that the appellant’s actions were done out of stress and anger and not in defence of the complainant because of the use of two hands and the specific words that were used. The secondary submission was that the defence of sudden or extraordinary emergency was not met because the complainant’s life was not endangered. In relation to defence of another, the prosecution submission was that it was not a reasonable response in the circumstances. The prosecution accepted that the section could apply to conduct the person takes to prevent another person from self‑harming. The submission was that if the choking was done to stop the complainant from harming herself, it was excessive.
Counsel for the appellant indicated that he agreed that Liberato and Murray directions should be given.
He drew attention to the clear denials in relation to certain aspects of the conduct in the interview with police. He submitted that the appellant was open and frank with police. He submitted that the interview was a particularly aggressive one in terms of the tenor and approach the police officers took.
He accepted that the version of events given to police was largely consistent with the version of events given to Ms O. However, he submitted that the complainant subsequently recanted to a significant degree and gave a reason for doing so. In relation to the suggestion that it was the messages about the appellant’s visa status that led to the recanting, he first submitted that the issue was never explored. Second, he submitted that the complainant explained that she was under great emotional distress at the time. He submitted that if the magistrate was to accept that version, she would have to do so with certainty. He pointed to the hitting of her head on the ground which was given even in the initial version. He submitted that was not ordinary behaviour and suggests some degree of being out of control or mentally unstable. He pointed to the description of the choking action as involving her neck being “pressed flat”.
He submitted that the use of two hands would be far more suggestive of action done out of violence than out of preservation. He submitted that the evidence of injuries was all to one side of the neck and did not extend to both sides of the neck.
He pointed to medical notes from the Canberra Hospital which included:
(a)“[c]ould not recall full event 3/7 but described being strangled by husband 3/7 and pushed in the chest”;
(b)“[d]enied head injury” no [loss of consciousness].
He placed emphasis on the absence of full recollection and the stated absence of a head injury in circumstances where there was some injury to her forehead.
The submission was that this was consistent with the complainant having been emotionally unstable, out-of-control or jumping to the wrong conclusions about what happened during the event.
He relied on her evidence that she had misconstrued her husband’s actions and that he was actually trying to help her. He submitted that the magistrate could not be satisfied beyond reasonable doubt that he was not trying to help her. Further, he submitted that although in a perfect world the appellant probably would not grab the complainant’s neck, the issue needed to be considered in the context of the circumstances and was not disproportionate.
He also pointed to the bite mark which was not referred to in the evidence-in-chief interview, indicating it was somewhat unreliable. He submitted that the restraint by the neck was the second attempt to restrain her in the context of an already failed attempt to restrain her by the arms.
The magistrate’s decision
After the closing submissions from counsel for the appellant, the matter was adjourned from 1pm until 3:35pm, when the magistrate gave her decision. The decision extends over eight pages of the transcript.
The magistrate initially gave herself some standard directions about the nature of a criminal trial. She identified that the matter was essentially a factual dispute as to what happened on 29 June 2020. She identified that the disputed areas were really how the hands were placed around the complainant’s neck and the circumstances in which that occurred. She identified that the complainant gave essentially two different versions. The first was in the evidence-in-chief interview that she was choked by the appellant with two hands using all his strength. In court, she gave evidence that she realised, when she was not so emotionally unstable, that what she originally perceived to be threatening behaviour and conduct by her husband was, in fact, an attempt by the appellant to stop her from hurting herself.
The magistrate referred to the competing submissions of the parties. She identified that the onus was on the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence. She identified that, although the prosecution had made reference to the possibility of the defence of sudden or extraordinary emergency, that was not raised by the appellant himself and she considered that it did not arise on the facts.
The magistrate identified that the evidence given in court by the complainant did not necessarily conflict with the record of interview given by the appellant. However, she did say that the complainant’s evidence-in-chief interview involved a clear conflict with statements made by the appellant in his record of interview. She gave herself very clear directions about the onus of proof consistent with a Liberato direction and a Murray direction.
The magistrate then turned to her assessment of the complainant’s evidence. She summarised the evidence that was given in the evidence-in-chief interview. She made particular reference to the complainant saying that she was choked by the appellant with all his strength and him saying to her “I’d rather the daughter have a murderer father instead of letting the daughter seeing you, the mother, crying”.
She then summarised the evidence given in court. That summary included the complainant’s reference to her husband trying to stop her from hitting her head, describing herself as going crazy or that she could not control herself, that she bit the defendant, that she was pushing him away and that she recalled the defendant trying to stop her from hitting herself.
Having summarised the complainant’s evidence, the magistrate recorded the impressions that she had from observing the evidence-in-chief interview and the complainant giving evidence in court. She said:
My impression of the complainant in the FVEIC is that she gave a credible account. She remained quite still during the interview and did not appear to be embellishing her account or having any difficulty with remembering the incident. Whilst giving evidence in court the complainant was at times quite evasive in her answers and did not answer the questions directly. This may be due to the translation of the language, however I found that she was quick to highlight her emotional instability in her answers each time, rather than answering the questions that were being asked.
The magistrate accepted that the complainant did knock her head on the ground even though she had not mentioned this in the evidence-in-chief interview. She referred to the complainant having described herself as being out-of-control, going crazy and unable to calm down. She referred to the complainant’s evidence that she bit the appellant when he was trying to carry her. Although there was no description of the appellant trying to carry her, the magistrate recognised that this may be a translation issue. The magistrate found that the complainant was trying to ensure her evidence highlighted her mental instability and that whatever she said to the police, doctors, friends or hospital was caused by her distress and confusion that lasted over two to three days. The magistrate did not accept that her complaints were more to do with her emotional instability than that what she was in fact reporting to police, her friends and the hospital was what had occurred. She recorded that at times the complainant’s evidence was implausible, such as having a disorder where she could not tell whether it was something she had heard or whether she just thought about it. The magistrate rejected her evidence about not hearing the “murdering father” comment. She rejected her evidence that she was confused when seeing doctors and police. She made specific reference to what was observed on the evidence-in-chief interview, that the complainant was calm, responded easily to questions and did not appear distressed.
She recorded her observations that the complainant had some understanding of the questions that were being asked by the police even before the translation had begun. She did not accept the complainant’s evidence that Ms O and Ms Y did all the talking either at the hospital, to doctors or at the police station. She referred to the evidence in the evidence-in-chief interview being corroborated by the evidence of Ms O who confirmed that WeChat messages were sent by the complainant asking for help. She referred to the evidence of Ms O that the complainant was distressed and emotionally unstable when she arrived. The magistrate identified that that was a fact consistent with both versions of what had occurred. She noted Ms O observed an injury to the complainant’s forehead and that she said her husband had told her something like “I would rather my children have a murderer father than such a mother”. The magistrate said that it was a significant matter that this was very close to what the complainant told the police in the evidence-in-chief interview.
In relation to the statement made to Ms O that her husband had strangled her neck so hard that her neck was also flat, the magistrate accepted that this was an exaggeration but consistent with the complainant’s description to police that he used all his strength. She referred to Ms O’s observation of bruising on the complainant’s neck and the fact that the complainant reported that she had a painful throat. She referred to Ms O’s evidence that the complainant was able to communicate with the doctor the next day.
The magistrate said that the version given in the evidence-in-chief interview was corroborated by the injuries shown in photographs, in the text messages to Ms Y and the photographs taken by police. It was also corroborated by the report the complainant gave to her doctor the next day where she was recorded as saying that she had been grabbed by the throat by her husband.
The complainant reported the incident to police. She reported it to her friend Ms Y and in the text messages sent to Ms Y. On the third day after the incident, she reported it to the hospital, again reporting it as a strangulation injury.
In relation to self-defence, the magistrate found that the complainant did bite the appellant. She referred to the appellant’s statement that she bit and scratched him when he was trying to hold her and lift her up and that that was consistent with the complainant’s evidence in court.
The magistrate said “I do have some concerns about some of the phrases that were used by the complainant when she was giving her evidence in court, terms such as describing herself as crazy, couldn’t calm down. These were similar phrases to what the defendant had used to describe her in his record of interview.” She did not take this issue any further.
The magistrate did not make any adverse finding against the appellant because he exercised his right to silence at certain parts of the interview with police. However she did make an adverse comment about police behaviour because they continued to ask the appellant questions when he had made his position that he wished to seek legal advice extremely clear. She described their conduct in continuing to ask questions in the face of that as being “entirely improper” and stated that “police should be discouraged from continuing to ask a defendant questions when they have made their position clear”.
The magistrate then considered the possibility that the injuries were consistent with the description given by the appellant that there was some contact with the complainant’s neck at some point and that was to stop her from self-harming. The magistrate said:
However, given all of the evidence that I have considered, I am - particularly the evidence of complaint and particularly the evidence of the photographs, particularly the evidence of the symptoms that she described, a hoarse voice that was observed by one of her friends, her throat was sore, she found it difficult to swallow for a number of days, I do not consider it a reasonable possibility that the injuries occurred in a manner suggested by the defendant just trying to stop her from hurting herself. I reject the defendant’s account to those parts as to the incident.
She recorded that she accepted the complainant’s account given in the family violence evidence-in-chief interview. She found:
(a)that the “murdering father” comment was made;
(b)that the defendant grabbed the complainant’s neck with two hands with all his strength;
(c)that he did this out of anger and stress, possibly because she was having the emotional breakdown in the bathroom and he wanted her to stop because the children were nearby; and
(d)that taking into account the fact that the “murdering father” comment was made at the time, the action was of anger and stress rather than trying to stop the complainant from harming herself.
The magistrate found that there was not a lawful excuse for the appellant putting his hands around the complainant’s neck. She indicated that even if in self-defence or in defence of another, she would have considered that the actions were excessive in the circumstances.
As a consequence, she found the offence proved.
There was then a procedural discussion relating to arrangements for the sentencing hearing.
Grounds of appeal
It is convenient to deal with the grounds of appeal (set out above) in the order that they were addressed by the parties.
Ground (c)
The appellant contends that the rejection of the evidence given in court by the complainant, to the extent that was contrary to the evidence given in the evidence‑in‑chief interview in the absence of cross-examination of the complainant by the prosecutor, led to a miscarriage of justice.
First, the appellant contends that there were four specific areas where the evidence given in court was rejected by the magistrate and the evidence in the evidence-in-chief interview was preferred. They were:
(a)the description of the incident;
(b)the “murderer father” comment; and
(c)Ms O speaking for the complainant at the GP surgery and Ms Y speaking for her at the hospital.
The appellant complains that there was no cross-examination of the complainant by the prosecutor on these topics and that in relation to (c) there was no application to recall the complainant after Ms Y and Ms O had given evidence which was contrary to that given by the complainant.
Second, the appellant complains that there was no cross-examination of the complainant about the similarity in language between that used by the complainant in her evidence in court and similar phrases used by the appellant in his police interview. This similarity was a matter referred to by the magistrate in her reasons (see [140] above).
Third, the appellant says that the magistrate placed weight on the medical notes about the complainant’s reported sore throat. This was said to be contrary to the complainant’s evidence in court that her throat was sore from yelling, screaming and crying during the night. The appellant identifies that the complainant was not cross-examined about this aspect of her evidence by the prosecutor.
The appellant submitted that in the absence of cross-examination it was not open to the magistrate to reject the evidence of the complainant given in court and prefer the evidence given in the evidence-in-chief interview.
The complainant relies upon the decisions in MWJ v The Queen [2005] HCA 74; 80 ALJR 329 at [38]-[39] and the New South Wales Court of Criminal Appeal decision in R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34 (Kennedy) at [37]-[38] and the authorities referred to therein.
The appellant submitted that in rejecting the evidence given in further evidence‑in‑chief and in cross-examination the magistrate had acted unfairly because those discrepancies and inconsistencies had not been put to the complainant by the prosecutor in cross‑examination. The appellant’s submission was that because the trial miscarried due to the conduct of the prosecutor, a finding of not guilty should be entered.
In assessing this ground of appeal, the ultimate question is whether or not there was a miscarriage of justice. If the Crown case has not been presented properly and fairly then there may be a serious irregularity amounting to a miscarriage of justice: see Kennedy at [37], [40]; R v Macfie (No 2) [2004] VSCA 209; 11 VR 215 at [61] (Macfie); R v Vollmer [1996] 1 VR 95 at 139 (Vollmer). This has also been articulated as asking whether or not the accused had a fair trial: R v Andrews [2010] SASCFC 5; 107 SASR 471 at [66].
The cases relied upon by the appellant involved substantially different circumstances to those which existed here. The cases of Kennedy, R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450 (Kneebone), and R v Walton [1999] NSWCCA 452; 113 A Crim R 308 (Walton) each involved what was said to be substantial misconduct on the part of the prosecutor.
In Kneebone, the partner of the accused had been a witness to the key events in a sexual assault trial. The prosecutor chose not to call her because he said that her evidence would be unreliable. However, he had done nothing to enable proper consideration of whether her evidence was unreliable such as conferring with her before making that decision. This was said to constitute a miscarriage of justice.
In Walton it was conceded that the Crown prosecutor had impugned the credit of the witness, in circumstances where he had not put the matter about which criticism was to be made to the witness. The assertion that had been put was that the appellant and his daughter agreed to present joint lies in evidence. The address was said (at [37]) to have:
[P]owerfully built on the assertion that the jury could find support for the complainant’s account in the asserted lies of the appellant and sought to nullify the daughter’s account. It followed that the attack on the credibility of the daughter was essential to the line of advocacy employed. That attack was not merely casual but integral to the way in which the Crown submitted its case to the jury.
This course was described by Greg James J (at [38]) as “completely indefensible”. His Honour identified that the submission by the Crown was that it must have been clear that the Crown contended that the version given in evidence by the daughter was incorrect. Greg James J then said (at [42]):
But the address went well beyond this. The Crown prosecutor asserted the witness was party to an agreement to give false evidence and on that submission was based an argument that because of that, guilt could be inferred, yet the prosecutor stood back from allowing the correctness of the contention to be subjected to the acid test of putting it to the witness.
His Honour considered that the course of conduct in relation to the witness was so unfair and the directions were so inadequate to deal with that unfairness that the trial was fundamentally flawed (at [44]).
In Kennedy, the Crown prosecutor was the same prosecutor whose conduct had been criticised in Kneebone and Walton. The Crown prosecutor put to the jury that the complainant’s mother had attempted to protect the accused and was doing her best to look after his interests. No questions were asked of the witness which would have afforded her the opportunity to answer such suggestions. That ground of appeal was upheld and the convictions ultimately quashed.
In Macfie, this line of cases was examined and a distinction was drawn between circumstances where the prosecutor’s criticism of the witness went beyond a suggestion that the evidence of the witness was incorrect and involved allegations of misconduct that had not been put to the witness. In Macfie at its highest was an attack on evidence given by the parents of the complainant that they knew of and encouraged the sexual acts of the accused with their daughter. It did not extend to an allegation that they were lying in order to protect the appellant.
Similarly, in R v Goncalves (1997) A Crim R 193, Wheeler J concluded that there was no rule prohibiting a party from submitting that the jury might disbelieve portions of the evidence which were not consistent with the guilt of the accused person.
Similarly, in Vollmer, Southwell and McDonald JJ rejected the proposition that a prosecutor could not criticise the evidence of a witness called by the Crown.
The complaints in the present case
Description of incident and “murderer father”: The appellant’s contentions about the description of the incident and the “murderer father” comment can be dealt with together. The complaints are directed to the following passages in the magistrate’s reasons:
(a)Transcript, page 85, lines 15-23: “I find that the complainant was trying to ensure her evidence highlighted her mental instability and that whatever she said to the police, doctors, friends or hospital was caused by her distress and confusion that lasted over two or three days. I do not accept that her complaints were more to do with her emotional instability than-rather, I accept that what she was in fact reporting to the police, doctors, her friends and the hospital was what had occurred. At times her evidence was implausible, such as having a disorder where she could not tell whether it was something she had heard or whether she had just thought about it.”
(b)Transcript, page 85 lines 23-25: “I reject her evidence about not hearing the murdering father comment.”
So far as the first is concerned, this is a general conclusion reached about the reliability of the evidence of confusion and instability. It arose as a matter of impression as to the manner and content of the complainant’s answers as a whole rather than a specific portion of the evidence. Apart from the additional evidence of kowtowing and of having bitten the appellant, the complainant’s description of the incident was generally similar to that given in the evidence-in-chief interview. However, the finding was significant in assessing those parts of her evidence where she retrospectively characterised the intention behind the appellant’s conduct or made comments upon her own state of mind at the time.
It is true that the prosecutor had not cross-examined the complainant to put to her the conclusion reached by the magistrate. As described below, she had attempted to do so in relation to the specific issue of the “murderer father” comment and whether she had lied to police. It was clear that the prosecution did not accept her evidence to the extent to which it had departed from or attempted to retrospectively colour what was said in the evidence-in-chief interview. That would have been obvious to the accused and the magistrate but was made clear in the re-examination which sought to reinforce the reliability of the police interview. The witness had the opportunity to give her response, which was that she was in a confused state at the time. When she was asked about whether she had any independent memory of what happened on the night of the incident and volunteered that she had a “disorder”, that was pursued in a manner that made it clear that the assertion was not accepted and gave the witness every opportunity to give evidence of its reliability. That unsatisfactory evidence about a “disorder” was picked up in the reasons given by the magistrate.
In those circumstances the magistrate was not precluded from reaching the conclusion that the complainant was attempting to highlight her confusion and mental instability at the time.
In so far as the complainant said that she did not hear the appellant say “murderer father” comment, the prosecutor did seek leave to cross-examine during re‑examination but that was opposed by counsel for the appellant. Leave was refused by the magistrate on the basis that the complainant’s evidence was quite ambivalent. The prosecutor then sought to ask whether the complainant had lied to police. Counsel for the appellant indicated that he would object to that as well. The magistrate would not allow that question. Having objected to cross-examination by the prosecutor on this issue the appellant now says that cross-examination was essential. The appellant should not be permitted on an appeal to approbate and reprobate in this way. In the circumstances, there was no miscarriage of justice on this issue.
Evidence of Ms Y and Ms O: The third complaint alleges that the prosecutor ought to have made an application to recall the complainant after Ms Y and Ms O “gave evidence that contradicted [the complainant’s] evidence”. In relation this complaint, it is important to recognise the limitations on cross-examination of the relevant witnesses and hence upon the answers given. In relation to the GP visit, Dr Zahedpur had said that although he could not remember whether he was given information about medication by the complainant or the person assisting with the translation, he said that he was convinced the information was reliable. It was not suggested to him in cross-examination that there was no complaint of being grabbed by the throat. There was no suggestion that he had not conducted a physical examination of the complainant or that there was any inaccuracy in his record that she was “Moderately tender in the upper rim of thyroid cartilage” or the other records that he made on examination.
In cross-examination of the complainant, she was asked about the translation and gave the somewhat ambiguous answer “Right and she did all the talk. She did all the talk.” She agreed with the suggestion that she didn’t really understand what was conveyed to the doctor, saying that she was confused. However, the issue was not explored further and left hanging. She was not asked about any of the specific complaints that the doctor had recorded. It was not suggested to the complainant that she did not say any of the things recorded in the doctor’s notes, that he did not conduct an examination of her or that any particular thing recorded in the notes was inaccurate.
Similarly, in relation to the visit to the hospital, the evidence of the complainant in cross‑examination was as follows:
Did you tell hospital staff that you had a limited recollection of the events that happened on 29 June?:---I don’t think I – I don’t think I said much on that day. It was the – my friend and a social worker who actually talked to the hospital. So, I actually didn’t say much on that day.
This answer was only partially responsive to the question. It was not definitive. The issue was not pursued in the cross-examination.
When Ms Y gave evidence, she explained that at the hospital she filled in the gaps about technical terms. In cross-examination it was suggested to her that she assisted with the translation. There was no suggestion that she had done all the talking. There was no suggestion that anything in the hospital records came from her and not the complainant. There was no suggestion that anything in the notes was inaccurate. There was no application by counsel for the appellant to recall the complainant for further cross‑examination. The evidence that she gave was entirely consistent with the contemporaneous record of a social worker of the hospital “patient reporting that English is good, however friend assists to ‘fill in the gaps’.”
In relation to the evidence of Ms O and Ms Y, there remained some apparent but undeveloped inconsistencies between their evidence and the evidence of the complainant and between the evidence of the complainant and other witnesses. Those were matters which the magistrate was obliged to consider. The manner in which those inconsistencies emerged at trial and the manner in which they were addressed in submissions gave rise to no complaint at trial. Having regard to the way in which these issues emerged at trial, there was no unfairness to the appellant in the magistrate considering them.
Similarity of language: So far as the magistrate referring to the similarities in language between that used by the complainant and that used in the appellant’s interview with police, is concerned, the magistrate said:
I do have some concerns about some of the phrases that were used by the complainant when she was giving her evidence in court, terms such as describing herself as crazy, couldn’t calm down. These were similar phrases to what the defendant had used to describe her in his record of interview.
The issue was not pursued any further. No finding was made. The magistrate appears to have been simply, as she stated, recording “some concerns”.
Hoarse voice: The complaint that is made relates to the reasons of the magistrate when concluding that the appellant’s account should be rejected referring, amongst other things, to “the symptoms that she described, a hoarse voice that was observed by one of the friends, her throat was sore, she found it difficult to swallow for a number of days”. The expression “hoarseness” appears in the medical records from her hospital visit. It was a symptom that had resolved by the time of the hospital visit. In cross-examination, an explanation for hoarseness of voice had been given – namely screaming and crying during the hour-long argument:
Was your throat sore from yelling and screaming?---Definitely. Because after you screamed and cried your throat will be painful.
The answer, as it was translated, was not in the most compelling form, being suggestive of accepting the theory rather than any particular recollection. The cross‑examination did not go further so as to elicit evidence that any hoarseness was unrelated to any gripping of her neck. Once again, the issue was left hanging. There was no re-examination on this issue. No submission was made by the prosecutor on this issue.
The other medical evidence included the general practitioner’s notes made on 30 June which recorded a history of “feeling sore in the thyroid cartilage when swallowing” and a record which appears to have been made after a physical examination of “Moderately tender in the upper rim of thyroid cartilage”. The notes made at the hospital on 2 July recorded a history of “Dyspnoea” (difficult or laboured breathing) which had by then resolved and “ongoing difficulty swallowing”.
It must be accepted that the hoarseness of voice may well have been caused completely or in part by screaming, crying or talking on the evening in question, rather than as a direct result of the application of pressure to the complainant’s neck. However, the reference in the magistrate’s reasons occurs in the context of describing a range of symptoms which were medically documented which went beyond mere hoarseness of voice. That, in turn, occurred in the context of describing the range of reliable factors which the magistrate concluded allowed the appellant’s account that there was contact with her neck in order to stop her from self-harming to be excluded beyond reasonable doubt and fed into the (unchallenged) conclusion that the contact was not a reasonable response in the circumstances as he perceived them to be. It is not clear what weight the magistrate placed on the issue of “hoarseness” as opposed to the other evidence as to the condition of the complainant’s neck. It is not likely to have been great. It is certainly not a case where it can be said that it gives rise to a miscarriage of justice.
The prosecutor’s submission accepted that the evidence given in the witness box contradicted itself to some extent. She submitted that the family violence evidence‑in‑chief interview recorded the complainant’s evidence at a time when it was fresh in her memory. She then went on to address the other evidence consistent with the complainant’s evidence‑in‑chief interview. There was no inappropriate attack on the credit of the witness as was found to exist in Walton, Kneebone and Kennedy. The address was logically structured, fair, anchored in the evidence and targeted at the issues between the parties.
As indicated above, I am not satisfied that there was any improper conduct on the part of the prosecutor. I am not satisfied that there was any unfairness to the accused in the way that the matter was put to the magistrate. I am not satisfied that the way in which the magistrate addressed each of the matters referred to above in relation to which complaint is made involved any miscarriage of justice.
Ground (b)
The appellant contended that the magistrate misapplied the Liberato direction and that this led to a miscarriage of justice. This is said to arise from the statement by the magistrate that “[t]here is a possibility that the injuries are consistent with the description given by the defendant that … there was some contact with the complainant’s neck at some point and that was to stop her from self‑harming”. Her Honour then went on to reject the appellant’s account because she did not consider it a reasonable possibility that the injuries occurred in the manner suggested by the appellant.
The appellant contends that the magistrate’s rejection of the reasonable possibility that the injuries occurred in the manner suggested by the appellant involved a misstatement of the Liberato warning. It is said that category two in the reformulation of the Liberato direction in De Silva v The Queen [2019] HCA 48; 268 CLR 57 (De Silva) at [12] involves no requirement that there be a “reasonable possibility” that the accused’s version is true, only a “possibility”.
This submission is without merit. The whole of the paragraph in De Silva referred to by the appellant is as follows:
In Johnson v Western Australia, Wheeler JA identified one possible shortcoming in using Brennan J's statement in Liberato as a template for the direction: a jury may completely reject the accused's evidence and thus find it confusing to be told that they cannot find an issue against the accused if his or her evidence gives rise to a "reasonable doubt" on that issue. For that reason, it is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
(Footnotes omitted.)
The submissions of the appellant appear to be that the reference to “might” in the second element of the De Silva formulation should be interpreted as involving the bare “possibility” as opposed to a “reasonable possibility” that the accused’s version is true. That cannot be correct. The possibility must be one that gives rise to a reasonable doubt. A bare, abstract or theoretical possibility is plainly not sufficient. The whole point of the Liberato direction is to emphasise that the burden remains at all times upon the Crown and that the Crown must exclude any reasonable doubt.
In that context it was not inappropriate for the magistrate to ask whether there was a “reasonable possibility” that the injuries occurred in the manner suggested by the appellant because it was only such a reasonable possibility that would give rise to a reasonable doubt.
Counsel for the appellant also advanced an argument that the magistrate was not entitled to rely upon the photographs in order to justify the rejection of the appellant’s version of events. It was suggested that this involved the magistrate advancing an argument in support of the prosecution case that was not put by the prosecution contrary to what was said in relation to a judge’s summing up to jurors by Johnson J in Robinson v R [2006] NSWCCA 192; 162 A Crim R 88 (Robinson) at [140].
This argument did not properly arise under this ground of appeal. Nevertheless, even if the appellant could raise it, it was without substance. This is a case in which Robinson has no application. It was not a jury trial. Insofar as the suggestion is that the magistrate adopted a course of reasoning inconsistent with the way the matter was put by the prosecution, that is not correct. The prosecution plainly relied upon all of the evidence that it had adduced, particularly the contemporaneous objective records such as the photographs and the medical records. The particular use to be made of the photographic evidence was not the subject of submissions. The submissions by both parties were efficient and focused on their principal contentions, as one would expect in proceedings in the Magistrates Court. The approach taken by the magistrate to place some weight on the contemporaneous photograph of the complainant was not inconsistent with the way that the prosecution put its case and did not involve the magistrate unfairly advancing an argument in support of the prosecution case that the prosecution itself had not advanced.
In relation to the consistency or otherwise between what is shown in the photograph and the oral evidence given by the complainant, it is difficult to interpret some of the evidence that was given by the complainant in court because it involved a demonstration. It is not clear precisely how the magistrate considered that the photographic evidence was inconsistent with the account given to police by the appellant. However, it is difficult to see why actions attempting to avoid further self-harm by the complainant would have caused the redness to the left-hand side of the neck shown on the photographs. It is true that oral evidence was not led to explain the photograph sent to Ms Y but the photograph was sent in the context of complaints that “Yesterday he almost choked me to death” and “Because my throat, it’s not easy for me to speak. It really hurt.” No error is demonstrated by the reference to the photographs by the magistrate in the context that appears.
Ground (a)
The appellant contended that the finding of guilt was unreasonable. The test is that identified in M v The Queen (1994) 181 CLR 487 (M v The Queen) 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.
(Footnote omitted.)
In addressing this it is necessary to take into account the submissions made in support of ground (c).
In this case there was evidence that was contemporaneous with the events in question. That was derived from the evidence-in-chief interview, the text messages, the evidence of Ms O, the evidence of Ms Y, the medical records arising from the examination by the GP and the medical records arising from the attendance at the hospital.
The version of events given in court by the complainant emphasised the potential for her evidence to be unreliable. It suggested a retrospective change in her understanding of the appellant’s motivations and hence what had occurred. In some specific respects, it denied knowledge of central matters such as whether two hands were used and whether the “murderer father” statement had been made.
So far as the appellant’s interview with police was concerned, on the critical issues his account of what happened was limited. He could not recall whether he had made the “murderer father” comment. In relation to what physical contact had occurred he, quite appropriately, had declined to provide an answer to police until he had the benefit of legal advice and could be assured of an accurate translation.
The case was one in which there was an initial complaint to police given in the evidence‑in-chief interview which was corroborated by contemporaneous records and complaints. On the other hand, there was subsequent evidence given in court which if accepted would undermine the reliability of the evidence-in-chief interview. It is a case in relation to which the magistrate had a significant advantage over this court in having seen and heard the complainant give evidence in court. The court must pay full regard to those considerations: see M v The Queen at 493.
Bearing in mind the significant advantage of the magistrate, I do not consider that it was not open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty.
Comment about the police interview
As I have pointed out above, in dealing with the appellant’s police interview the magistrate said:
In fact, the only adverse comment I would make about the police behaviour is that record of interview. I found that there continuing to ask the defendant questions where he had made his position extremely clear that he wished to seek legal advice about that matter, continuing to ask questions in the face of that was entirely improper. I note that there was no objection to the record of interview being tendered, but I do wish to make that comment that police should be discouraged from continuing to ask a defendant questions when they have made their position clear.
Those remarks are ones which were perfectly appropriate in the circumstances and I would adopt them. It is, in my experience, rare to see a transcript of an interview with an accused person where police officers fail to respect the wishes of a person to get legal advice on a particular issue. In this case, while formally accepting the request to get legal advice, the police officers persisted in asking questions and one of them made the suggestion that in seeking to get legal advice the appellant was acting inappropriately. This conduct was particularly inappropriate in circumstances where the accused person had indicated that English was his second language and that fact must have been perfectly clear to the officers in any event. It is fundamentally important that such interviews are conducted in a way which is substantively fair to an accused person and respects an accused person’s entitlement to say nothing. The manner in which the interview was conducted in this case was inconsistent with that fairness and respect.
As the magistrate pointed out, no objection was taken to the admission of the recorded interview in this case. That was because of the forensic benefit to the appellant in having what he told the police before the magistrate. However, that should not detract from the magistrate’s quite appropriate criticism.
Order
The order of the Court is:
1. The appeal is dismissed.
| I certify that the preceding two hundred and three [203] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 22 October 2021 |
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