Turner-Choikee v ACT Director of Public Prosecutions

[2025] ACTSC 44

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Turner-Choikee v ACT DPP

Citation: 

[2025] ACTSC 44

Hearing Date: 

14 February 2025

Decision Date: 

17 February 2025

Before:

Taylor J

Decision: 

(1)    The application for leave to appeal out of time is refused.

(2)    The appeal is dismissed.

(3)    The conviction recorded in respect of CAN2023/10684 is confirmed.

Catchwords: 

CRIMINAL LAW – APPEAL – Appeal from the Magistrates Court – appeal against conviction – application for leave to appeal out of time – whether the finding was unreasonable and cannot be supported having regard to the evidence – assessment of the credibility of the complainant – error not established – application for leave to appeal out of time refused – appeal dismissed – conviction confirmed

Legislation Cited: 

Court Procedures Rules 2006 (ACT), r 5072

Crimes Act 1900 (ACT), ss 26(2), 48D

Criminal Code 2002 (ACT), div 2.3.3

Evidence Act 2011 (ACT), s 38, 192

Magistrates Court Act 1930 (ACT), divs 3.10.1, 3.10.2

Supreme Court Act1933 (ACT), s 37O

Cases Cited: 

Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27

Alfred (a pseudonym) v Eiffert [2023] ACTSC 403

Dal Cortivo v The Queen [2010] ACTCA 14; 204 A Crim R 55

Fox v Percy [2003] HCA 22; 214 CLR 118

Garay v The Queen (No 3) [2023] ACTCA 2

Gibbs v Willis [2013] ACTSC 26

Inglis v Adamson [2024] ACTSC 4

JA v Goldsmith [2004] ACTSC 79

Ji v Stone [2023] ACTSC 54

King v Bishop [2024] ACTSC 114

Lee v Lee [2019] HCA 28; 266 CLR 129

Liberato v The Queen [1985] HCA 66; 159 CLR 507

M v The Queen [1994] HCA 63; 181 CLR 487

R v Freeman-Quay (No 1) [2015] ACTSC 262

R v McDougall [2011] ACTSC 51

R v Murray (1987) 11 NSWLR 12

R v Shevlin [2013] ACTSC 88

Summerell v Lawler [2014] ACTSC 246

Warren v Coombes [1979] HCA 9; 142 CLR 531

Parties: 

Peter Turner-Choikee ( Appellant)

ACT Director of Public Prosecutions ( Respondent)

Representation: 

Counsel

Self-represented ( Appellant)

T Hickey ( Respondent)

Solicitors

Self-represented ( Appellant)

ACT Director of Public Prosecutions ( Respondent)

File Number:

SCA 1 of 2025

Decision Under Appeal: 

Court/Tribunal:           ACT Magistrates Court

Before:   Magistrate Temby

Date of Decision:       24 September 2024

Case Title:                 The Police v Peter Turner-Choikee

Court File Number:     CAN 2023/10684

TAYLOR J:

Introduction

1․On 24 September 2024 the appellant, Peter Turner-Choikee, was found guilty in the ACT Magistrates Court of the following charge:

(a)CAN2023/10684 – aggravated common assault, contrary to s 26(2) of the Crimes Act 1900 (ACT).

2․In the proceedings in the Magistrates Court, the appellant was referred to using he/him pronouns. At the appeal the appellant expressed a preference to be referred to using she/her pronouns. There was no reason not to respect that preference and where possible I have referred to the appellant in accordance with her preference. For the sake of clarity though, I note that extracts from the transcript of the Magistrates Court proceedings and references in this judgement to the appellant in those proceedings, are inconsistent with that preference. No disrespect is at all intended to the appellant by adherence to the requirement to accurately record the proceedings below.

3․The finding of guilt in respect of the aggravated common assault charge was made in the alternative to a charge of aggravated assault occasioning actual bodily harm pursuant to s 48D of the Crimes Act. The Magistrate dismissed the more serious charge, not being satisfied that the actions of the appellant in fact caused the actual bodily harm. The circumstance of statutory aggravation for both charges was the family violence context of the offence.

4․On 8 November 2024, the appellant was sentenced to a total period of imprisonment of 3 months and 22 days. Three months of imprisonment was imposed for the aggravated common assault offence, and 22 days of imprisonment was imposed consecutively for an unrelated offence of assaulting a frontline community service provider.

5․The appellant filed an application for leave to appeal out of time and a notice of appeal on 22 January 2025. The notice stated that the appellant appealed from the sentencing order made by Magistrate Temby on 8 November 2024 on the ground that the information provided to the court was “not true”. The accompanying handwritten document entitled “Affidavit” was unsworn and dated 16 January 2025. The document identified complaint with the finding of guilt. On that basis, the appeal has been approached as one which challenged the finding of guilt, a matter confirmed by the appellant at the appeal.

6․The appellant was unrepresented in the appeal and is not legally trained. The respondent agreed that the complaint raised by the appellant in both her “affidavit” dated 16 January 2025 and in oral submissions made on 14 February 2025, was effectively an assertion that the finding of guilt made on 24 September 2024 was unreasonable and cannot be supported having regard to the evidence: s 37O of the Supreme Court Act1933 (ACT).

7․The notice of appeal was filed outside of the prescribed 28 days following conviction: r 5072 of the Court Procedures Rules 2006 (ACT). Given that the appellant’s sentence of imprisonment was set to expire on 25 February 2025, the appeal was expedited. Accordingly, the application for leave to appeal out of time was left to be determined as part of the appeal.

8․I made orders on 17 February 2025 dismissing the appeal and reserved my reasons. These are those reasons.

Leave to appeal out of time

9․In Summerell v Lawler [2014] ACTSC 246 at [3], Refshauge J summarised the principles surrounding applications for leave to appeal out of time as follows:

In brief terms, it requires an acceptable explanation for delay, an explanation of what action was taken by the applicant after the conviction, any prejudice to the respondent, although the mere absence of prejudice is not enough, and the merits of the application are to be taken into account.

10․The appellant’s affidavit dated 16 January 2025 recorded that she had “been actively trying to appeal the charge [of] aggravated common assault… since entering the Alexander Maconochie Centre on 8/11/24”. The document records that she received a letter from Legal Aid informing her that her application for a grant of aid to pursue an appeal was refused on 20 November 2024. It was not entirely clear if 20 November 2024 was the date the decision was made by the Legal Aid Commission to refuse aid or the date the appellant received notification of that decision. 

11․I acknowledge the difficulty that many self-represented litigants face in attempting to understand and navigate complex legal processes without the benefit of legal assistance or advice. This was compounded by the appellant having to navigate these challenges while subject to a period of full-time imprisonment. The appellant did not appear to be aware of the requirement to file a notice of appeal within 28 days of the conviction. While a lack of awareness does not necessarily give rise to an “acceptable explanation for delay”, in light of her restricted access to resources to obtain advice and information in combination with the appellant’s description of her complex personal challenges, it goes some way to explaining the delay.

12․Ultimately, as the respondent accepted, the outcome of the application for leave to appeal out of time will be significantly influenced by an assessment of the merits of the appeal to which I now turn.

Background

The prosecution case

13․The alleged offending occurred on 28 October 2023. The prosecution case was that the appellant and the complainant returned to the complainant’s home at about 5:10pm. The appellant had been drinking throughout the day. The appellant picked up several of the complainant’s belongings, including a phone and a cord, and attempted to leave the residence. The complainant attempted to take his belongings back from the appellant and in response, the appellant physically confronted the complainant. The appellant attempted to hit the complainant, grabbed at his jumper, pulled the jumper over his head and hit him again. The appellant grabbed a chair and held it over the complainant before attempting to hit him with it. The appellant then tripped over which enabled the complainant to leave the residence and call triple-zero. The complainant reported that the appellant was “going off his head”, was drunk and had been violent.

14․The prosecution alleged that during the assault the complainant sustained a cut to his forehead which bled. Police attended and observed the complainant to have an injury to his head. Police entered the residence and arrested the appellant. The police observed the appellant to be intoxicated and located a cable in his pants.

15․The prosecution case was that the injury to the complainant’s head constituted actual bodily harm, however relied on the statutory alternative of common assault if his Honour was not satisfied as to causation of the injury.

16․The appellant and the complainant are former intimate partners and at the time of the alleged offending they were residing together at the complainant’s house. The prosecution alleged, and defence accepted, that the offending occurred in a family violence context.

Evidence of the complainant

17․At the beginning of his evidence, the complainant summarised the events of 28 October 2023 as follows:

He threw my phone away without telling me, and when we got home I asked him where the phone was. He said he didn’t know. So I pushed him over onto the couch and [we] wrestled, and after that was when I called the police.

18․The complainant stated that while he remembered speaking to police, he could not recall the details of what he told them as he was “very angry” and “wasn’t thinking straight”.

19․The complainant claiming to have assaulted the appellant first prompted the prosecution to make an application pursuant to s 38 of the Evidence Act 2011 (ACT) to cross-examine the witness on the basis of him having previously made a prior inconsistent statement. The complainant’s version of events provided in Court was inconsistent with his account to triple-zero telephone operators and to police. The application was opposed but leave was granted by the Magistrate.

20․The recording of the complainant’s call to triple-zero was played to the Court. In the recording the complainant stated that “Peaches is going off his fucking head at me”, “he is drunk” and “getting violent towards me”. The complainant stated that he was currently standing outside on the street and the appellant was still inside the residence. When asked if he was injured, the complainant responded that “he tried to beat me up but I managed to get away from him”. The complainant explained that the appellant had consumed three bottles of wine that day.

21․The body-worn camera (BWC) footage of Officer Phelan was also played to the Court. It depicted police officers approaching the complainant who was standing on the sidewalk. A line of blood is visible on the left-hand side of the complainant’s forehead. Officer Phelan asked the complainant whether he “got a clunk in the head… did he hit you?”. The complainant responded “yeah”. The officer asked, “how did he hit you?”. The complainant’s verbal response is not discernible in the recording however he uses both arms to demonstrate a pushing motion and finished by saying, “then he picked up a chair and came at me”.

22․In the BWC footage, the complainant stated that he did not want to make a statement to police, he just wanted the appellant out of his house. Officer Phelan then asked the complainant to recount what had happened. The complainant responded:

He tried to take my phone and TV cord and everything and walk straight out the front door... I grabbed that back off him and that’s when he started laying into me… He went with his fists first, I grabbed both of them. I had a jumper on … and he pulled that off, he pushed me on the couch and just kept going, that’s when he grabbed the chair … and come at me with that. I stood to the side, he tripped over, fell over and I just walked out the door.

23․When asked by the officer whether he hit the appellant at any stage he replied “nope, didn’t hit him at all.” The complainant elaborated that when he grabbed his belongings out of the appellant’s bag, the appellant “just come at me… grab me… had a swing obviously connected there [gesturing to the injury on his forehead], I just stopped him”. When asked how exactly the injury occurred, the complainant replied, “I don’t know, must have been as he was punching me or… when he fell on the couch he had hold of my top”. He described how the appellant tried to hit him after having pulled the complainant’s top over his head. While the appellant had “come at him” with the chair, the complainant stated that the appellant never actually made contact with it.

24․After viewing the footage, when asked by the prosecutor whether the appellant got “violent on that day” the complainant responded, “No, he got violent after I pushed him, after the bit when he threw the phone in the beginning”.  The complainant gave evidence that, “After I got my stuff back, that’s when he – when it got a bit violent, when we wrestled, and that’s how I – after that, that’s when it stopped and I went outside and called triple-zero”. He stated, “I still don’t know how I got that cut on my eye” although conceded that he did not have the cut prior to the incident with the appellant.

25․Despite initial reluctance to respond to the questions from the prosecutor, the complainant’s version was largely consistent with his initial account to police, in terms of the appellant taking his belongings, the appellant using his fists, the appellant picking up the chair and the appellant being violent and drunk. The significant point of difference was that in evidence in the proceedings he maintained he had pushed the appellant first and that a “wrestle” consequently ensued. The complainant stated that “when I just say the wrong thing when he’s been drinking, he does lose his temper”.

26․During cross-examination, the complainant confirmed that he initiated the physical contact by pushing the appellant “over onto the couch” as he was “really, really angry”. The complainant said that the appellant was not aggressive until after the complainant pushed him. He further stated that although he did not know how he got the injury to his forehead, “it wasn’t him himself [the appellant], it was something else that got me”.

27․In re-examination, the complainant confirmed that he and the appellant had been spending time together since the appellant’s arrest and they had spoken about the matters before the Court. The complainant agreed that he had never wanted to come to court for this matter. It was put to the complainant that he was attempting to protect the appellant to which he replied, “Yes. He doesn’t deserve any more than – he’s – I’ve already put him through enough”.

28․The complainant then stated that the appellant was only ever verbally abusive telling the Magistrate “I don’t think he got – got a punch on me that day” and “it was just a wrestle”. When asked if he was trying to minimise the offending conduct the complainant directly conceded that he was. The complainant agreed he was honest with the police on the day of the incident when he told them what had occurred.

Remainder of the evidence

29․The prosecution called two of the attending police officers to give evidence. Statements from two other attending police officers were tendered by consent.

30․The use of the evidence of the police officers was limited to:

(i)confirmation that the complainant gave attending police a version of events on the day they attended to his complaint as captured on the BWC footage tendered by the prosecution; and

(ii)confirmation that the appellant denied the allegation as captured on the BWC footage tendered by the prosecution.

31․Apart from those two matters, the evidence of each of the police officers did not substantively assist to determine the facts in issue before the Magistrate and reasonably, was not referred to by the Magistrate in any detail. Likewise, the evidence of the police officers was not significant for the purposes of this appeal and is unnecessary to summarise in any further detail.

The Magistrate’s decision

32․The Magistrate delivered his decision ex tempore. The Magistrate began by recording the prosecution case generally and adopting the standard directions applicable in a criminal hearing as well as a direction consistent with R v Murray (1987) 11 NSWLR 12. There can be no complaint made as to substance of those directions.

33․The Magistrate rightly observed that no inference adverse to the appellant could be drawn from the fact that the appellant did not give evidence in the proceedings. The Magistrate identified that in the BWC footage the appellant could be heard denying the allegation. The Magistrate properly recognised that evidence to be unsworn and that he was not obliged to afford it the same weight as evidence given under oath in the proceedings. Notwithstanding that, the Magistrate warned himself in accordance with Liberato v The Queen [1985] HCA 66; 159 CLR 507 about which, again, there could be no complaint.

34․The Magistrate recorded that he accepted the evidence of each police officer, there being no challenge to their evidence. The Magistrate summarised the account given by the complainant in the triple-zero call. He noted that in his oral evidence, the complainant repeatedly described the interaction as a ‘wrestle’, which the Magistrate considered “was almost a euphemism to avoid him having to describe what the [appellant] in fact did”.  The Magistrate identified that an assessment of the complainant’s evidence was “difficult” to assess though ultimately concluded that where his evidence in the proceedings about what happened on the day of the incident differed to the version he gave to police on the day, he was satisfied the version given to police was accurate.

35․The Magistrate described the status of the complainant and appellant’s relationship, “They are still friends…he said he wanted to protect the [appellant]… he said he had put him through enough”. The Magistrate determined:

It is thus clear that the version told to police is the more accurate version, given that he called the triple-zero service immediately after his interaction with the [appellant], describing himself as having been beaten up by the [appellant], and given the cut to his head, it’s clear there was an incident of violence, and I accept what he said to the police as true. Ultimately he conceded in court that the [appellant] did become very violent after the complainant took his property back just as he had said to police, and he called the police because of the violence.

36․Having determined that he was satisfied beyond reasonable doubt as to the accuracy of the complainant’s account to police, the Magistrate turned to considered whether the application of force by the appellant caused actual bodily harm and whether the appellant’s actions were in an effort to defend himself. The Magistrate determined that the evidence did not establish beyond reasonable doubt that it was the application of force by the appellant which caused the injury to the complainant’s forehead.

37․Turning to the issue of self-defence, the Magistrate noted the appellant must have believed that what he did was necessary and reasonable in the circumstances in order for his conduct to be lawful. The Magistrate accepted that the complainant pushed the appellant before going outside to look for his phone. The Magistrate determined that “even if there was a second push” when the complainant re-entered the residence, about which the Magistrate observed there was no evidence, that did not justify the appellant’s conduct. The Magistrate concluded:

There is no doubt that those actions went well beyond anything that might have been necessary to defend himself, whatever he thought the danger was. Accordingly, I’m not satisfied that the defendant was acting in self-defence.

38․Consequently the Magistrate recorded a finding of guilt in relation to the offence of aggravated common assault.

Standard of review

39․The Supreme Court’s jurisdiction and conduct on appeals against convictions imposed on summary offences from the Magistrates Court is governed by divs 3.10.1 and 3.10.2 of the Magistrates Court Act 1930 (ACT) (the ‘MCA’), namely ss 207–219. This appeal is brought pursuant to ss 207 and 208 and is by way of re-hearing: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27. On a rehearing, “the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact”: s 214 of the MCA.

40․The standard of review to be applied in conviction appeals from the Magistrates Court brought under s 208 was clarified and confirmed in Alexander at [18]:

…[A]n appellant may succeed in an appeal under s 214 of the MCA by demonstrating that the magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed.  Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision.

41․As Baker J stated in Inglis v Adamson [2024] ACTSC 4 at [47]-[49] the onus is on the appellant to identify and demonstrate error in the Magistrate’s findings. In Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 at [37], Baker J observed where there is a complaint that the verdict is unreasonable, the Court must “ask itself whether it thinks that upon the whole of the evidence it was open to [the tribunal of fact] to be satisfied beyond reasonable doubt that the accused was guilty”: citing M v The Queen [1994] HCA 63; 181 CLR 487 at 49 [7] (per Mason CJ, Deane, Dawson and Toohey JJ).

42․As her Honour further observed in Ji v Stone [2023] ACTSC 54 at [153], there may be “little difference in practical outcomes” between the principles applying to review of jury verdicts set in M v The Queen and the principles applying to review by way of rehearing enunciated in Fox v Percy [2003] HCA 22; 214 CLR 118, and concluded at [154] that:

[W]hether applying the test in M v The Queen or applying “rehearing” principles in the Court’s determination of whether factual error is established, the Court will be required to perform its own assessment of the evidence, but in doing so, the Court must also take into account any advantage that the tribunal of fact had in the proceedings below.

43․Any consideration of error in a Magistrate’s decision must take into account the pressures of the Magistrates Court: Alexander at [21]. Appeals by way of re-hearing require a “real review of the evidence given at first instance and the judge’s reasons for judgment and while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion”: Alexander at [13], citing Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551 and Lee v Lee [2019] HCA 28; 266 CLR 129 at 148-149; [55]-[56].

44․I must bear in mind the advantage that the Magistrate had in the environment of the hearing given the nature of the case, in particular when assessing the credibility of the complainant. I do so, heeding the observation of McCallum CJ in Garay v The Queen (No 3) [2023] ACTCA 2 at [31]:

Whatever differences exist between trial by jury and trial by judge alone, the advantage of being immersed in the atmosphere of the trial is one thing they undoubtedly have in common; an advantage not shared by the appellate court. The assessment of credibility involves more than a lawyerly analysis of the words on the page of a transcript. The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness.

Fresh evidence

45․The appellant sought to adduce fresh evidence, namely a letter she identified as having been prepared by the complainant that was dated 7 January 2025.

46․Sub-sections 214(3) and (4) of the MCA provide as follows with respect to further evidence on an appeal from a decision of a Magistrate:

(1)In an appeal to which this section applies, the Supreme Court must—

(a)if it considers it necessary or expedient to do so in the interests of justice—

…

(i)   receive the evidence, if tendered, of any witness; and

(b) receive evidence with the consent of the parties to the appeal.

(2)If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if—

(a)it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and

(b)the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.

47․The respondent opposed the tender of the letter. The additional evidence, being a letter the appellant identified as having been authored by the complainant, attested to no more than that which the complainant’s evidence in the proceedings attempted to establish; that he had lied to police when he described the detail of the appellant’s conduct towards him. The letter from the complainant would not have been admissible in the proceeding out of which the appeal arose. The complainant was required to give that evidence orally in the proceedings, which he did. The “further” evidence upon which the appellant seeks to rely was already adduced and the Magistrate took it into account in determining the outcome.  

48․I am not satisfied that the evidence would afford any ground for allowing the appeal and accordingly, I do not consider it necessary or appropriate to receive it as further evidence on the appeal.

Ground of appeal

49․As identified above, the notice of appeal articulated the ground of appeal as “the information provided to the court was not true”. In the appellant’s affidavit dated 16 January 2025, she set out the following matters:

In court I pleaded not guilty.

[The complainant] also admitted he hit me first.

On the day of the incident I said leave me alone or to that effect as I climbed onto couch (sic) from the ground, at that stage I was dazed, could not walk properly, or put a sentace (sic) together.

I have been a victim of domestic violence since my late teens.

50․The appellant’s oral submissions were consistent with the expression of that complaint. She relied on the complainant’s concession that he was angry on the day of the incident and identified this as the reason why he was dishonest when speaking to the police.

51․I have approached the ground of appeal as one alleging that the finding of the Magistrate was unreasonable or cannot be supported having regard to the evidence. The respondent provided useful written submissions addressing the appeal on that basis. That said, as the respondent conceded, Alexander confirmed that an appellant need not establish that a finding was unreasonable in order to succeed. Legal, factual or discretionary error will be sufficient to warrant appellate intervention. I have borne that in mind when assessing the proceedings below in order that the appellant not be disadvantaged in the appeal because of her self-represented status.

52․I have concluded that there is no merit in the allegation that the finding was unreasonable or could not be supported having regard to the evidence. There was no legal, factual or discretionary error made by the Magistrate. Indeed, I have concluded having reviewed the evidence carefully for myself, that the finding was correct.

53․Initially the appellant raised an issue about discrepancy between what she recalled being evidence from the complainant at the hearing and what was contained in the transcript of the proceedings, believing key portions of evidence from the complainant were “left out”. The appellant ultimately withdrew this complaint once the evidence she recalled the complainant giving was located within the transcript and drawn to her attention.

54․The appellant clearly feels very strongly that her status as a First Nations person who identifies as female, has resulted in individual and systemic discrimination infecting the level of care and attention she receives in the criminal justice system. The appellant described some very difficult circumstances that she has faced in her life, many of them directly connected to her cultural and gender identity. The appellant clearly felt sincere sadness and frustration about what she perceived to be repeated failures by operators in the criminal justice system to take her specific circumstances into account. I do not doubt that the appellant feels genuinely aggrieved by what she considered to be a lack of recognition of the challenges that attend to her life and her wellbeing.

55․This appeal is an examination of the evidence in the proceedings below and the decision of the Magistrate in the face of that evidence. The outcome of the appeal is not a commentary on the broader concerns carefully articulated by the appellant. Nor does it necessarily undermine the significance of those concerns. I offered the appellant the opportunity to obtain further legal advice to assist her to advance the appeal and she determined not to take up that opportunity.

56․The appellant was invited to identify any specific concerns in relation to the evidence before the Magistrate, the conduct of police responding to the request for assistance made by the complainant on the day of the incident and the ultimate finding made by the Magistrate. The appellant consistently returned to the complainant having misrepresented to police the nature of their disagreement and the extent of the physical interaction between them prior to police arrival as being at the heart of the appeal.

Unreasonable verdict?

57․The respondent cited that which was observed by McCallum CJ in King v Bishop [2024] ACTSC 114 at [104], “the phenomenon in the criminal justice system of a victim of domestic violence reporting the violence truthfully in its immediate aftermath and then recanting from that account is sadly familiar”. This was the circumstance that confronted the Magistrate, the resolution of which was significant in terms of determining the outcome.

58․The respondent’s submitted that based on the evidence in the proceedings, the Magistrate’s finding was “completely unsurprising” and “was open for the Magistrate to make”. A review of the evidence revealed this submission to be accurate.

59․The appellant was represented in the proceedings before the Magistrate. The was no challenge to the evidence which established that the complainant had called triple-zero for help in the face of the appellant’s conduct, that the complainant presented to attending police with an injury to his forehead and that the complainant identified the appellant as responsible for assaulting him. Similarly, there was no contest that the conduct, as alleged by the prosecution, could establish the elements of common assault.

60․A review of the evidence demonstrated that the approach of the Magistrate accurately reflected the issues for determination after all the evidence had been adduced. The appellant did not give evidence in the proceedings, though had denied the allegation to attending police. The strength of that denial fell to be assessed by reference to the prosecution case, specifically the evidence of the complainant. The Magistrate directed himself in accordance with Liberato in assessing the denial by the appellant.

61․There being no challenge to the evidence that some physical contact between the complainant and the appellant occurred, the Magistrate was effectively required to determine three matters:

1.Was any physical contact between the appellant and the complainant a deliberate application of force by the appellant?

2.If the answer to (1) is yes, had the prosecution established that the force was unlawful by excluding, beyond reasonable doubt, that the appellant was acting in self-defence when she applied that force to the complainant?

3.If the answer to (2) is yes, did the assault result in the appellant occasioning actual bodily harm to the complainant as particularised (the injury to the complainant’s forehead)?

The physical contact and self-defence

62․It is useful to recall the nature and extent of the assault as particularised by the prosecution in the opening address:

The defendant picked up a number of the complainant’s items including a phone and a cord, and attempted to leave the residence. The complainant grabbed these items off the defendant who immediately physically confronted him, using his fists, which the complainant grabbed. He tried to hit him, grabbed at the complainant’s jumper which was pulled over his head, hit him again and grabbed a chair, which he held over the complainant, trying to hit him with the chair. The defendant tripped over and the complainant left the house and went outside immediately calling triple-zero and reporting that the defendant was going off his head, was drunk and had been violent and had tried to beat him up before he managed to get away.

63․The Magistrate was satisfied that the evidence established that the appellant assaulted the complainant in the following way:

I accept that what happened, happened immediately after the complainant sought to grab his things back. Regardless, the evidence is that the defendant hit him, laid into him, pulled his jumper over his head, kept hitting him on the couch, picked up a chair and tried to hit him with it.

64․The Magistrate was entitled to consider the complainant’s evidence through the prism of the unchallenged evidence as to the status of his relationship with the appellant. Indeed, he was correct to do so. The complainant’s evidence established his intention to assist the appellant and necessarily undermined the reliability of the evidence he gave in furtherance of that intention. The complainant was frank when he declared that he did not want to participate in the proceedings and that he had “already put [the appellant] through enough”.

65․Additionally, the complainant explained that his relationship with the appellant was ongoing, that he felt protective toward the appellant and that he did not want to see the appellant found guilty. The complainant agreed that he had tried to minimise the appellant’s conduct on the day when giving evidence in the proceedings. The complainant’s evidence provided a strong foundation for the finding that he was desirous of giving evidence he considered advantageous to the position of the appellant.

66․The appellant was right when she submitted that the complainant told the Magistrate that he had lied to police. Almost immediately after swearing an oath to tell the truth in the proceedings, the following evidence was adduced:

Prosecutor: Are you able to explain to the court what occurred on 28 October that led to you calling police?

Complainant: He threw my phone away without telling me, and when we got home I asked him where the phone was. He said he didn’t know. So I pushed him over onto the couch and wrestled, and after that was when I called the police.  

……….

Prosecutor: Do you recall when police attended your home, you spoke to police out the front of your house?

Complainant: I remember speaking but I don’t remember what I said, because I was angry.

Prosecutor: Were you truthful with police on that day?

Complainant: No, I wasn’t truthful because I was just very, very angry at the time and I wasn’t thinking straight.

[Emphasis added].

67․The prosecutor moved quickly to make an application pursuant to s 38 of the Evidence Act to cross-examine the complainant of the basis of a prior inconsistent statement. The prior inconsistent statement was the version given to police that did not include the complainant pushing the appellant or there being a “wrestle” as a result. This version of events did not accord with the prosecution case. The application was opposed by the appellant’s legal representative. He submitted that the complainant had already indicated to the prosecution prior to the day of the hearing that he had reconsidered the detail of his evidence because he was now “clear minded” and that his evidence in the proceedings was consistent with that reconsidered position. Although the appellant’s lawyer accepted that the complainant had given a prior inconsistent statement, he submitted that the circumstances did not satisfy “s 38 or him being a hostile witness”.

68․Putting aside that s 38 of the Evidence Act does not require a determination that a witness is “hostile”, it is unquestionably the case that the Magistrate correctly determined to grant the application in the circumstances, namely that the complainant had made a prior inconsistent statement and the prosecutor had given notice at the earliest opportunity of the intention to seek leave under the section. The Magistrate took into account those matters mandated by s 192 of the Evidence Act in determining whether or not to grant leave to cross-examine the complainant.

69․The result of the cross-examination of the complainant both by the prosecutor and the appellant’s lawyer and of the re-examination was an attempt by the complainant to undermine his reliability on the day of the incident at the same time as maintaining that he had been truthful with police.

70․The complainant disavowed the version he gave to police on the day of the incident at the outset of his evidence and continued to reference his anger on the day as undermining his capacity for honesty with police. Despite this, he continued to confirm the accuracy of what he reported to police and to the triple-zero operator, including the appellant’s anger and his use of physical violence toward him.

71․The addition of a “push” and a “wrestle” to the version given by the complainant in the proceedings coincided with his admitted interest in an outcome that was favourable to the appellant. The only substantive addition to his evidence was that which attributed to him responsibility for initiating physical contact and clouded the specific detail of the physical contact between them. It was well open to the Magistrate to conclude, as he did, that the reference to a “wrestle” was “a euphemism to avoid him having to describe what the defendant in fact did”.

72․The Magistrate did accept that the complainant pushed the appellant though determined it did not occur in the way the complainant initially described. This was a finding open and indeed entirely supported by the evidence. After initially identifying that he pushed the appellant immediately prior to the “wrestle”, the complainant was asked further questions as to the chronology of events in the lead up to the arrival of police and his response to those questions further clarified his version.

73․The complainant described an ongoing argument with the appellant after they had shopped together earlier in the day. On their way home the complainant’s phone was dropped or lost. Upon arriving at the complainant’s home he asked the appellant where the phone was and when the appellant replied that he did not know, the complainant pushed the defendant and left the house to search for his phone.

74․On the complainant’s version he returned to the residence after he located the phone, plugged the phone into a charger and left again to go for a walk. When he returned he saw that his phone, phone charger and a cord were missing. The complainant saw the cord hanging out of the appellant’s bag and tried to get his things.

75․It was at this time that the interaction he described as a “wrestle” occurred.

76․While it was undoubtedly the case that the complainant intended to give a version of events most favourable to the accused, his answers over the course of his evidence, unintentionally, revealed that the version he gave to police and in the triple-zero call was not a fabrication.

77․As the standard directions in a criminal trial make plain, a fact finder can accept the evidence that a witness gives in whole or in part. A rejection of some aspects of witness’ evidence need not necessarily result in wholesale rejection of the entirety of their evidence. Where, as was the case before the Magistrate, there is a compelling reason to selectively accept aspects of a witness’s evidence a fact finder will be justified in doing so.

78․As I have already identified, the compelling reason in this matter came from the complainant himself, namely his admitted interest in an acquittal.

79․The Magistrate correctly rejected two substantive aspects of the complainant’s evidence. First, that the “wrestle” was precipitated by a push from the complainant. Secondly, that the “wrestle” was not a wrestle at all but a physical interaction that saw the appellant engaging in conduct that included hitting the complainant, pulling his jumper over his head, holding a chair and trying to hit the complainant with it. A review of the evidence confirms the rejection of that evidence was not only open, but it was correct.

80․In the BWC footage and in his recorded call to triple-zero, the complainant made no reference to having instigated the physical incident by pushing the appellant. Immediately following the incident when speaking to police, the complainant stated that his attempt to take back his phone and cords from the appellant is what saw the appellant assault him. The complainant specifically responds, without hesitation, “nope” when asked by the police officer if he hit the appellant at any stage.

81․In his oral evidence, the complainant’s explanation for why he left out this key feature of the incident when speaking to police was that he was “very, very angry at the time” and “wasn’t thinking straight”.

82․Of course, it is not incredible that a person subject to an assault may not be “thinking straight” in the immediate aftermath. But the complainant’s presentation in the BWC footage is not consistent with a person so driven by rage he was unable to be rational or “think straight”. Although visibly upset, the complainant was calm when speaking with police. He was not irrational, unreasonable or incapable of coherent thought. The complainant did not present as someone overcome or driven by intense anger nor he did not make any comment reflective of being “very, very angry” at the appellant.

83․The complainant’s recount of the incident is coherent, logical and responsive to the questions asked of him by attending police. The complainant told police that he was sober which is consistent with his presentation. In contrast to a person not “thinking straight” the complainant appeared to be thinking very carefully having clearly considered the consequences of making a formal statement to police. From the outset of his conversation with police, he was clear that he did not wish to make a formal statement and that he only wanted to see the appellant out of his home.

84․The complainant’s repeated refusal to make a formal statement is consistent with the position he maintained when he participated in the proceedings. There is no support in either the presentation of the complainant or the substance of what he says in the BWC footage, for the proposition that on the day of the incident, he was so angry at the appellant that he contrived a version of events, minimising his own conduct, to ensure that the appellant was arrested or punished.  His only request of police was that they remove the appellant from his residence.

85․Having carefully reviewed the evidence for myself, I have concluded that the Magistrate was correct to determine that the complainant’s contemporaneous account of the incident recorded in the triple-zero call and in the BWC footage, was the “more accurate version”. As the Magistrate recorded, while the complainant minimised the appellant’s conduct to protect him, he nonetheless gave a version largely consistent with his initial account to police. The Magistrate was correct to identity that it was a significant consideration that the complainant ultimately agreed that he had been honest with police when he described to them on the day what had occurred.

86․The evidence established what the Magistrate accepted; a push from the complainant to the appellant occurred but it was separated in time (by the complainant exiting the residence twice) from the interaction that saw the complainant contact triple-zero for assistance. Notwithstanding that finding, the Magistrate correctly observed that even if he had been satisfied that a “second push” from the complainant occurred, the prosecution had excluded beyond reasonable doubt that the appellant engaged in the conduct in self-defence:

Even if there was a second push – and I don’t think there was, given the defendant’s evidence that he was immediately subject to violence once he tried to grab his things – but even is he was pushed by the complainant at some point what the defendant then did, he could not have reasonably believed was necessary in self-defence. As I say, I don’t accept there was a push.

[The reference in the above extract to “defendant’s evidence” can only be a reference to the “complainant’s evidence”.]

87․The handwritten document filed by the appellant recorded that he was “dazed”, unable to walk properly or to “put a sentace (sic) together” at the time of the incident. To the extent that these matters were capable of contributing to the unreasonableness of the Magistrates verdict I will briefly address them.

88․There was no dispute on the evidence that the appellant was highly intoxicated on the day of the incident. The complainant reported the appellant had consumed three bottles of wine that day. This report was supported by the observations of attending police as well as by the appellant’s presentation in the BWC footage. The appellant’s intoxication was not referenced in the Magistrate’s determination. It was referred to briefly by the appellant’s legal representative in his closing submissions but was not identified as a factor relevant to an assessment of the facts in issue. Nothing was made of the appellant’s intoxication by either party and quite properly the Magistrate did not place any weight on it.

89․On the evidence the Magistrate correctly accepted, the question of self-defence did not arise.  While his Honour made observations as to the possibility of a “second push” and indicated his view had he been satisfied that a second push occurred, in light of the findings he made the observation was, strictly speaking, unnecessary. Self-induced intoxication could only have become potentially relevant to his Honour’s determination if he had been satisfied that the evidence raised the possibility that the appellant was acting in self-defence. The prosecution would have then been obliged to exclude that possibility beyond reasonable doubt.

90․The interaction of div 2.3.3 of the Criminal Code 2002 (ACT) that deals with self-induced intoxication and self-defence, as observed by Murrell CJ in R v Freeman-Quay (No 1) [2015] ACTSC 262 does not appear to have been finally resolved, citing Dal Cortivo v The Queen [2010] ACTCA 14; 204 A Crim R 55; R v McDougall [2011] ACTSC 51; Gibbs v Willis [2013] ACTSC 26; R v Shevlin [2013] ACTSC 88; JA v Goldsmith [2004] ACTSC 79. For example, single judges of this court have expressed different views as to the application of s 33 of the Criminal Code to self-defence: Gibbs and Freeman-Quay.

91․In the limited time available arising from the expedited nature of the appeal and the necessity for reasons to be promptly provided, I was unable to find a resolution in this jurisdiction of the interaction between self-induced intoxication and self-defence since Freeman-Quay.   It was not a matter argued in the appeal and I have not had the benefit of submissions. Accordingly, it is not appropriate (or necessary) for me to express a view. I am satisfied that the Magistrate correctly determined, on the evidence before him, any question in relation to self-defence.

92․The Magistrate determined the question in relation to actual bodily harm in the appellant’s favour. No complaint arises in light of that finding and I need not consider it.

Conclusion

93․None of the matters raised by the appellant demonstrated error on the part of the Magistrate. A careful review of the evidence revealed not only that the finding of guilt was open to the Magistrate but that the finding was correct based on the evidence in the proceedings.

94․Accordingly, the appeal lacks merit and the application for leave to appeal out of time ought to be refused.

Orders

95․For those reasons, I made the following orders:

(1)The application for leave to appeal out of time is refused.

(2)The appeal is dismissed.

(3)The conviction recorded in respect of CAN2023/10648 is confirmed.

I certify that the preceding ninety-five [95] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor.

Associate: O Ferguson

Date: 20 February 2025