Warford v Firth

[2017] NTSC 75

CITATION:Warford v Firth [2017] NTSC 75

PARTIES:WARFORD, Matthew James

v

FIRTH, Justin Antony

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL FROM LOCAL COURT EXERCISING TERRITORY JURISDICTION

FILE NO:LCA 5 of 2016 (21548652)

DELIVERED ON:  29 September 2017

DELIVERED AT:  DARWIN

HEARING DATES:  13 and 21 April 2017 and 24 May 2017

JUDGMENT OF:  SOUTHWOOD J

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION – Aggravated assault – findings of guilt unreasonable and cannot be supported by the evidence – appeal dismissed

EVIDENCE – Application to tender fresh evidence – further statement of complainant and case note of police - no reasonable explanation why the evidence was not adduced in the Local Court – no ground for allowing appeal – lack of diligence – application refused.

Criminal Code (NT) s 188
Local Court (Criminal Procedure) Act (NT) s 163(1), s 176A

Douglas v R [2012] HCA 34, 290 ALR 699; Jones v The Queen (1997) 191 CLR 439; Libke v The Queen [2007] HCA 30, 230 CLR 559; M v The Queen [1994] HCA 63; 181 CLR 487; MFA v R(2002) 213 CLR 606; Parker v The Queen[2007] NTCCA 11, applied

Commissioner of Taxation v Arnhem Air Engineering Pty Ltd (1987) 90 FLR 140, 47 NTR 8; Laurie v Stokes (1951) NTJ 66; Karui v Malagorski [2011] NTSC 17, followed

Elliott v Harris(No. 2) (1976) 13 SASR 516, referred to

Reilly v Baker (1989) 99 FLR 52, not followed

REPRESENTATION:

Counsel:

Appellant:K Roussos

Respondent:  L Hopkinson

Solicitors:

Appellant:Direct brief to counsel

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  Sou1704

Number of pages:  25

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Warford v Firth [2017] NTSC 75

No. LCA 5 of 2016 (21548652)

BETWEEN:

MATTHEW JAMES WARFORD

Appellant

AND:

JUSTIN ANTONY FIRTH

Respondent

CORAM:     SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 29 September 2017)

Introduction

1. This is an appeal from the Local Court under s 163(1) of the Local Court (Criminal Procedure) Act (NT) from two convictions for aggravated assault contrary to s 188 of the Criminal Code (NT).

2. By the time the appeal was heard by this Court the appellant had already served the sentences that were imposed on him for the two counts of aggravated assault. The appeal was pursued for the purpose of vindicating the appellant’s reputation and to prevent evidence of the two convictions being tendered in a pending criminal trial in this Court.

3. The appellant relies on a single ground of appeal - that the findings of guilt are unreasonable and cannot be supported having regard to the evidence. The ground of appeal is pleaded in an Amended Notice of Appeal dated 20 April 2017.

4. The original Notice of Appeal was filed out of time. It was filed three days late. In addition to being out of time, the Notice of Appeal was defective. The solicitors for the appellant had impermissibly joined in the same Notice of Appeal - the appeal from the convictions for the two aggravated assaults, and appeals from convictions for two charges of breaching a domestic violence order contrary to s 120 of the Domestic and Family Violence Act (NT).[1] All four charges were summarily tried together in the Local Court.

5. On 26 May 2017, I refused to dispense with compliance with any condition precedent to the right of appeal, as prescribed by the Local Court (Criminal Procedure) Act (NT), for the appeals against the two convictions for breaching a domestic violence order and I declared that those appeals were time barred. At the same time, I refused leave to further amend the Amended Notice of Appeal to add a ground of appeal pursuant to s 18 of the Criminal Code (NT).

6. While the respondent objected to the validity of the appeals from the two convictions for breaching a domestic violence order because they were out of time, the respondent took no issue with the appeals from the convictions for the two charges of aggravated assault proceeding on the ground pleaded in the Amended Notice of Appeal. Accordingly, for those appeals, I have dispensed with compliance with any condition precedent to the right of appeal, as prescribed by Local Court (Criminal Procedure) Act (NT). The appellant has done whatever was reasonably practicable to comply with the Act for those appeals. The appellant placed the matter in his solicitor’s hands prior to the limitation period for an appeal from the Local Court expiring.

7. In support of the surviving appeal, under s 176A of the Local Court (Criminal Procedure) Act (NT), the appellant has also sought to tender a statement of the complainant, Ms Janine May Carey, made on 9 October 2015 and a Case Note made by Lynn Grant on 14 October 2015. The respondent objects to the tender of those documents in the appeal.

8. In the circumstances of this appeal, it is convenient to deal with the ground of appeal first, and then deal with the application to tender evidence before this Court.

   The law about the appeal ground - ‘unreasonable and cannot be supported having regard to the evidence’

9. The principles enunciated by the High Court in M v The Queen,[2] have been applied by appellate courts on appeal from courts of summary jurisdiction[3] and to cases of trial by judge alone, even if the appeal provisions under the relevant statute did not specifically provide, as a ground, that the decision was unreasonable and could not be supported by the evidence.[4]

10. The applicable principles are well established. The question which must be determined is one of fact, to be resolved by the appellate court making its own independent assessment of the evidence.[5] Notwithstanding that there is evidence upon which a trial judge might have convicted the appellant, the appellate court must nevertheless determine whether it would be dangerous in all the circumstances to allow the verdict to stand. The High Court has expressed the question as follows:[6]

    [T]he question for an appellate court is whether it was open to the [trial judge] to be satisfied of guilt beyond reasonable doubt, which is to say whether the [trial judge] must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the [trial judge] to be sufficient to preclude satisfaction of guilt to the requisite standard. (Footnotes omitted)

11. In the earlier decision of M v The Queen the plurality of the High Court stated:[7]

    In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.

12. These principles have been affirmed and applied by the High Court in Jones v The Queen[8] and MFA v R[9] and by the Court of Criminal Appeal of the Northern Territory in Parker v The Queen.[10]

    The prosecution case

13. The prosecution case in the Local Court was as follows. The appellant and the complainant were in a domestic relationship. They both appear to have been cannabis users. The first assault occurred on the night of 2 October 2015. The appellant and the complainant had an argument while they were watching television in their lounge room. As a result, the appellant became very angry and he threw two objects into a wall in the lounge room. He then grabbed the appellant by the arms and then the throat with both hands and pushed her into a couch in the lounge room. At some stage he also punched her in her left eye. The second assault occurred on the morning of 3 October 2015. It occurred in the lounge room/kitchen area of their home. The complainant overslept. This made the appellant angry. He came up behind her and grabbed her by the throat and they fell to the ground. The appellant then got up and kicked the complainant in the ribs.

    The defence case

14. The defence case was there is a reasonable hypothesis the complainant was mentally unstable. She suffered from PTSD and had a history of self-harming. She suffered PTSD because she had been sexually assaulted by another person in the past. On 2 October 2015 the television program the appellant and the complainant were watching showed a rape scene and presented the female victim in a poor light. This caused the complainant to have a florid episode. She started to self-harm and the appellant used physical means to try to restrain her from self-harming. On the morning of 3 October 2015 the complainant went into another state of panic when she overslept and could not find her work clothes. She once again started to self-harm and again the appellant physically restrained her to prevent her self-harming.

    The evidence in the Local Court

15. At the trial in the Local Court the prosecution called the following witnesses: the complainant, Janine May Carey; the complainant’s manager at Casuarina Dog and Carwash, Donna Maree Keogh; the complainant’s mother, Catherine Therese Swan; police officer, Samantha Jane Duffy; and police officer, Leighton Arnott. The defence called the appellant.

16. The case in the Local Court was very much a ‘hard swearing’, or ‘oath against oath’, case. The alleged assaults took place in the privacy of the appellant’s and the complainant’s home, which was owned by the appellant and his father. No one else was present and there was no forensic evidence that independently supported the complainant’s evidence. The complainant was the main prosecution witness. The other witnesses for the prosecution largely gave evidence about what the complainant had told them, the complainant’s demeanour and state of distress, and certain bruises and marks they observed on the complainant’s body.

17. The assessment of the complainant’s evidence is complicated by the fact that she made an oral statement to the police after she went to work on the morning of 3 October 2015, and four written statements at different times. Some of the statements were completely contradictory, and others were inconsistent or partly contradictory with some of the other statements. In addition, during her oral evidence the complainant gave three or four different descriptions of the manner in which she was assaulted.

18. During her evidence on 9 May 2016 the complainant told the Local Court that when she arrived at work (at the Casuarina Dog and Carwash) on 3 October 2015 she had trouble with a change machine. She telephoned Donna Keogh (her manager) for assistance. Donna Keogh attended at work to fix the change machine. When Ms Keogh arrived she saw that the complainant had a black eye. She wanted to know what happened. The complainant told Ms Keogh she was late for work and her ribs were sore. The complainant asked Ms Keogh if she would ring the police. The complainant did not want to ring the police but they had to be informed about what had occurred.

19. The complainant spoke to the police on the telephone. They asked her if she would like to go to the police station or would prefer the police to come and speak to her. She asked the police to see her at work.

20. Ms Keogh’s evidence is slightly at variance with the complainant’s. Ms Keogh told the Local Court the following. She was at home. She looked at her iPad to see who was at work and whether any work was being done at the carwash. She has access to the CCTV at the carwash via her iPad. There was nobody there. She was expecting the complainant to be there. Ms Keogh then drove to work. When she arrived the doors were open so she assumed the complainant was there. She went into the office and saw the complainant who was sitting down crying. She said she was hurting. She saw that the complainant had scratch marks and bruising. The complainant had bruises on her body which she showed Ms Keogh. The complainant lifted her shirt to show her the bruises. The bruises were on her stomach and her back. The complainant told Ms Keogh that the appellant had hit her again.

21. Ms Keogh told the complainant that she was obligated to call the police as it was domestic violence. The complainant agreed with her so Ms Keogh called the police. When the police answered the telephone, Ms Keogh handed the telephone to the complainant. The complainant spoke to them and she cried. When the complainant got off the telephone, Ms Keogh calmed her down. She told her to finish up, wait for the police to turn up and then go home.

22. The complainant gave evidence that the police spoke to her at work. She told the police that she had an argument with the appellant and that he hit her. The complainant cannot remember anything else that she said to them.

23. Officer Duffy gave evidence that when she arrived at the carwash and spoke to the complainant, she could see the complainant quite obviously had a black eye. The complainant told her and Officer Arnott that the night before she had an argument with her partner and there had been a fight. She said the appellant punched her and kicked her at several stages during the evening and then they went to sleep. There was another argument the next morning and it continued again before she came to work.

24. If Officer Duffy’s evidence is accepted, there is a significant inconsistency in the complainant’s statement to her. This is the only time the complainant seems to have told anybody that the appellant kicked her on 2 October 2015.

25. Officer Arnott gave evidence that when they spoke to the complainant at the carwash she appeared emotional. She had sunglasses on which she removed. She had a blackened left eye. The complainant told Officer Arnott that she received the black eye because her partner had assaulted her. He assaulted her on two occasions. Once the night previous and once that morning. She stated she had been choked out in the morning by the appellant. She had been punched in the head the night prior.

26. Both police officers asked the complainant what she would like to do. Officer Duffy said the complainant stated that something had to be done about it as she was fed up. The complainant was told that the only way for that to happen was for her to go with the police and make a statement.

27. Officer Arnott said the complainant seemed reluctant to make a statement. She seemed fearful about possible reprisals from the appellant. This supports the complainant’s evidence in the Local Court.

28. The complainant gave evidence that after she finished work she went and made a statement to the police at the Casuarina Police Station. The statement is dated 3 October 2015. In her evidence in chief in the Local Court she stated that she did not want to make the statement because she was scared about what would happen. She gave the statement to Sam Duffy and another police officer. Everything in that statement was the truth and she was not aware that it was missing anything.

29. The statement was not placed before this Court, but in cross-examination the complainant conceded that she said nothing in the statement about being punched by the appellant. However, in re-examination she told the Local Court that in the morning, before she gave her evidence, she told the prosecutor that the statement of 3 October 2015 did not mention the fact that the appellant had punched her. She was asked how that occurred, that is, how she could have missed referring to the punch in the statement made on 3 October 2015. Her answer was non-responsive. She stated:

    I just had not thought of it. I didn’t – I’d read it and read it and read it and just didn’t think that – that – yeah, I just – it’s been a long, traumatic (inaudible). It’s been a long traumatic event and I just – I’m trying to forget about it. I’m trying to forget mental issues that I am now going through because of Matthew.

30. It also seems that there was no mention of the appellant throwing objects at the wall, or the objects making a hole in the wall, in the statement the complainant made on 3 October 2015.

31. Officer Duffy gave evidence in the Local Court that she took the statement of 3 October 2015 from the complainant and she also took some photographs of her injuries. She told the complainant to tell her story in her own words and she did. The complainant did not indicate that there was anything wrong with the statement when she signed it.

32. During the complainant’s cross-examination in the Local Court there is a reference to a statement made on 6 April 2016. However, neither party has referred to it in this appeal or taken that reference any further.

33. On 8 October 2015 the appellant appeared at the Local Court. The complainant also attended the Local Court on that day and spoke to the appellant.

34. On 9 October 2015 the complainant went to the Palmerston Police Station and made a statement dated 9 October 2015. It seems the statement was obtained by Senior Constable Lynn Frame for the purpose of upgrading the domestic violence order protecting the complainant to a full non-contact order. This statement is before this Court for determining the appellant’s application to tender it in the appeal under s 176A of the Local Court (Criminal Procedure) Act.

35. Among other things, the complainant states the following in the statement dated 9 October 2015.

    Since April 2015 to July 2015 there were no incidents of domestic violence. In July 2015 we had a domestic violence incident. I can’t remember much about it other than the police came and they took out a domestic violence order.

    As far as I am aware that means we can be together but not be abusive or violent and he cannot go to my mum’s house in Howard Springs.

    Last weekend there was an incident which I made a statement about to police about that matter is now before the court. There are parts of my statement which I forgot to put in, according to Matt, I just lost it that day. It was all because of what I had seen on TV and (sic) reminded me about the incident in Jabiru. I got the black eye that day by punching myself.

    I have now broken up with Matt since last weekend. I have seen him a few times since then. I saw him outside the court yesterday where he told me the matter from the weekend has been adjourned.

    I have come to Palmerston Police Station because my mum wanted me to. She is worried about me but does not know the full story that is going on.

    I will leave it up to police as to whether they upgrade the domestic violence order to full non-contact, or not, cause (sic) nothing I say is going to matter. I am consenting to Support Link contacting me.

    I really don’t know what to do at the moment, I am not concerned for my safety with Matthew.

    There have been no other incidents of domestic violence between me and Matt except what I have told you.

    I have had issues with ice back in April to July 2015, since then I am trying to get a grip on things. I am sick of hurting myself, Matt and others.

1. The statement does not completely recant the statement the complainant made on 3 October 2015. The only matter specifically recanted is how the complainant got the black eye. She told the police she sustained the black eye as a result of the appellant assaulting her. In the statement of 9 October 2015 she states that she got the black eye because she punched herself in the face. This, of course, is a matter the complainant did not refer to in her statement dated 3 October 2015. In that statement she makes no mention of being punched in the eye or self-harming. The complainant also appears to accept that she may have ‘lost it’ watching television because what she saw reminded her of the Jabiru (sexual assault) incident. Further still, the complainant seems to have gone to the police station because her mother was worried about her and the police had contacted her mother. These aspects of the statement have a tendency to partly support the defence case.

2. On 14 October 2015 the complainant made a further statement which she declared to be true. She handed the statement to the police at Casuarina Police Station. In the statement, among other things, the complainant states the following.

   Matthew Warford did not give me a black eye. I know that I was lying to the police at the time, because on previous occasions when I had self-harmed or fallen over around our home, police had not believed that I had done it and try to talk me into saying it was Matthew. When Matthew did hurt me the DVO was put in place.

   I said that I did not want Matthew charged and I did not want to write a statement at the time. Police were very pushy to get a statement and explained that I would be able to get help.

   …

   Duffy talked me into making a statement after me saying many times that I did not want to. I kept saying that I did not want to have Matthew charged. Surely there is something else we can do, this is because of me.

   …

   I told the police I did not want ‘no contact’ in Matthew’s conditions. Can Matthew’s conditions be we are to commence counselling, anger management, anything but ‘no contact’? Matthew and I need to be able to contact each other. Jail will only make matters worse and won’t fix anything. Matthew has changed and doesn’t deserve to be back there.

   On Thursday 8 October 2015 I was on my way to work when I missed a call … I had a voice mail. … The only part I could understand was Magistrates Court 10am Thursday 8 October 2015.

   I then contacted Donna Keogh to let her know that I was going to the court house …

   When I arrived … I found a car park. … I then started walking up the path towards the court house. I looked up and noticed Matthew was walking out of the court house and down the path towards me.

   … Matthew walked up to me and said bail conditions are still the same. I’ll see you when were allowed to (sic). We kissed each other on the check (sic), gave each other a hug and I watched Matthew walk around to the driver’s seat of his car, get in and drive away.

   I walked back to my vehicle … left the city to go back to work. While I was driving I decided that, I decided to go somewhere and think about why I couldn’t remember most of the night Matthew and I had the argument and what started it for things to end this badly.

   A few hours had gone by and I started to remember the whole night. I started to remember that I had caused the argument to start. I had started to have a panic attack and Matthew was trying to help me. Because of the state of mind I was in at the time I thought Matthew was trying to hurt me.

   …

   I decided to go around to Matthew’s place. …

   Matthew told me the same thing that I had remembered (sic) that night, 2 October 2015. I was the one that had panicked at what was on the TV and I went nuts. …

   …

   [On 9 October 2015] Mum asked me if I would come into Palmerston to go to go to her appointment with her. I said yes I would. As we were coming into Palmerston I asked mum where we were going and her answer was the police station. I asked why and Mum said because the police would like you to give another statement.

   I made another statement about what happened on Friday 2 October 2015. Police were trying to get me to give consent to upgrade violence order to full no contact. I said, “No, I do not give consent for this to happen” but police are going to do what they like anyway, so it doesn’t matter what I say.

3. The statement of 14 October 2015 clearly refers to the statement the complainant made on 9 October 2015. Of significance, the statement of 14 October 2015 says nothing about the alleged assault on the morning 3 October 2015. Once again, the only allegation that is specifically recanted is the punch to the complainant’s left eye.

4. The statement smacks of invention in a number of ways. First, in circumstances where the complainant had already given the police a detailed account of what had occurred on 2 and 3 October 2015, the suggestion that the complainant could not remember the whole night beggars belief. Secondly, the statement that it was necessary to go and speak to the appellant to confirm what the complainant says she then recollected, over a period of a few hours, is incredulous. This was only 11 days after the last assault. It is also noteworthy that the complainant does not go onto state how she came to make the statement dated 14 October 2015. Further, other than to state that “according to Matt, I just lost it that day”, the complainant says nothing in the statement she makes on 9 October 2015 about her revelation on the road side on 8 October 2015.

5. It seems that soon after 14 October 2015 the complainant made a further statement to police. In that statement she explained how she came to make the statement of 14 October 2015, and she adhered to her original position. That statement is not before this court.

6. During her evidence in the Local Court on 9 May 2016 the complainant gave the following evidence.

7. At the start of her evidence in chief, the complainant stated that on 2 October 2015 she and the appellant were in their lounge room at 18 Progress Drive Nightcliff. They were watching television and had an argument. The appellant lost his temper. He threw a bowl and a three step ladder into a wall. The ladder made a big hole in the wall. After the appellant threw the ladder into the wall he turned and looked at the complainant. She thought he was going to grab her and throw her into the wall. She said, “Don’t you fucking dare.”

8. The complainant then gave four versions of what happened next:

   1.He threw her onto the couch and proceeded to choke her. She ended up with a black eye. She cannot remember when he punched her.

   2.He came up to her, grabbed her by both wrists and went to pull her and she sat down – “like [she] has gone to sit down”. The appellant then let go of her wrists, grabbed her by the throat and pushed her into the couch

   3.The complainant has gone to sit down. The appellant has let go of her wrists and grabbed her by the throat and threw her into the couch by her throat.

   4.The appellant let go of her wrists grabbed her by the throat with two hands. He pushed her into the couch while he was still holding her throat. The complainant remembers not being able to breathe because the appellant’s grip was so tight.

9. The complainant then gave evidence that while they were on the couch she put her foot up and tried to kick him off her. She ended up kicking the appellant in the testicles. He finally let go. He let go of her and walked outside. He then came back inside. He started yelling at her and told her to open her legs so he could kick her and she could see how she liked it. The appellant then sat down at the kitchen table and started crying. He said he was sorry and that he was a low life maggot.

10. She ended up going for a drive to get dinner. They had dinner when she returned and, after dinner, she went to bed.

11. The complainant gave evidence that there was a punch but she cannot remember when that happened. When she got in the car to go and get dinner she noticed she was starting to get a black mark under her eye.

12. The complainant said that on 3 October 2015 she woke up and she was late for work because her mobile telephone had gone flat and her alarm did not go off. The appellant started getting angry and yelling at her because she was late for work. The complainant told the appellant that everything was okay. She just needed to get ready and go to work. As she was walking through the lounge room and into the kitchen, the appellant came up behind her, grabbed her by the throat and pulled her to the ground. He proceeded to choke her in a hold and pulled her to the ground. The complainant and the appellant both fell to the ground. She opened her eyes and she was leaning against the wall. The appellant let go of her after they fell to the ground. He then came up and kicked her in the ribs on her right side. The complainant then went to work. Her evidence about what happened at work and following is set out at [18], [19], [22] and [28].

13. During her evidence in chief, the complainant was asked if she had made a further statement. She said on 14 October 2015 she made a further statement at the request of the appellant. The statement was typed on the appellant’s computer. They wrote the statement together. It was to the effect that she lied in her first statement. It stated that she had injured herself.

14. She told the court that she made the statement because the appellant did not want to get into trouble and he did not want to go to gaol. She made the declaration for the statement at a “GP’s” in Casuarina and the appellant gave it to the police. The appellant took it to Casuarina Police station the same day he had to go to court. The statement is not true. She made the statement because she was scared of what the appellant was going to do if she did not make the statement.

15. The complainant gave evidence that she made a fourth statement in which she talks about the statement she made on 14 October 2015. She told the police the truth in the fourth statement.

16. During her cross-examination the complainant was asked about the inconsistencies between the statement she made on 14 October 2015 and her evidence in chief. Her response, on virtually all occasions, was that she made all inconsistent statements in accordance with what the appellant told her to say. She said the appellant was seated beside her when she made the statement dated 14 October 2015. He was telling her what to put in the statement. She feared for her life, and for her and her family’s safety. However, the complainant accepted that: in her first statement to the police she did not state that the appellant punched her in the left eye; she and the appellant kissed and hugged each other outside the Local Court on 8 October 2015; she suffered from Post-Traumatic Stress Disorder; she had self-harmed from time to time so the appellant would not hurt her; the appellant was not with her at Casuarina when she made the statutory declaration.

17. During his cross-examination of the complainant Mr McMaster, who was defence counsel in the summary trial in the Local Court, specifically put the following question to the complainant.

    And at par 28 [of the statement you made on 14 October 2015 you stated], ‘I made another statement about what happened on Friday 2 October 2015. Police were also trying to get me to give consent to upgrade violence order to full no contact. I said, “No, I do not give consent for this to happen,” but police are going to do what they like anyway, so it doesn’t matter what I say.’ Correct? … Correct.

18. The relevance of this is that Mr McMaster must have been aware from the time he read the statement of 14 October 2015 that there was a further statement and did nothing to obtain that statement.

19. Finally, during cross-examination, the complainant completely rejected the defence’s case theory. She was unshaken in cross-examination.

20. The appellant gave evidence in the Local Court. His evidence was largely consistent with the defence case which is referred to at [14]. However, during cross-examination the appellant gave the following evidence which is of some significance.

21. The only answer the appellant gave as to what the complainant was doing when she was self-harming was that she was punching herself. He offered no real explanation for the bruising around her neck which was consistent with being choked. He offered no real explanation for the bruising over the side of her ribs which was consistent with the complainant being kicked. The account the appellant gave of the incident on 3 October 2015 provided no explanation for the bruising to the side of the complainant’s ribs. He said the complainant had punched herself several times which is arguably inconsistent with the nature and level of the injuries she sustained.

22. The appellant accepted that he was present in court and that his counsel did not ask the complainant if the appellant had grabbed her on the arms when he was trying to restrain her from hurting herself.

23. During cross-examination the appellant accepted that he and the complainant had remained on friendly terms until January 2016; he and the complainant remained in contact despite his bail conditions; he and the complainant kissed and cuddled each other outside the Local Court on 8 October 2015; the complainant had borrowed his computer, and, implicitly, the complainant used his computer to type the statement of 14 October 2015; and the complainant gave the statement to him on the day she made the statutory declaration. In those circumstances, the appellant’s explanation of how he came to be in receipt of the statement the complainant made on 14 October 2015 beggars belief. His version of events was that by sheer coincidence on a day that he was to report to Casuarina Police Station, in accordance with his bail conditions, the complainant telephoned him from Casuarina. He did not know why she had gone to Casuarina. He did not know why she wanted to see him. He was not aware that the complainant had made such a statement until she gave it to him at Casuarina. When he received the statement, he did not know what the complainant’s intentions were and, implicitly, he made no enquiries about what she was going to do with the statement. He did not read the statement until he got home. He put it in his folder and he still has it at home. Yet he acknowledges that the complainant said to him, “Here is your copy,” and gave him a kiss on the cheek. He also belatedly stated that she told him she had supplied a copy of the statement of 14 October 2015 to the police.

24. The other extraordinary coincidence which needs to be considered in evaluating the appellant’s evidence in the Local Court, is that the appellant’s only evidence about the complainant self-harming was the complainant punching herself, in circumstances where the only allegation the complainant specifically retracted in her statements of 9 and 14 October 2015 is that the appellant punched her. She stated in those statements that she self-harmed in this manner.

    Consideration

25. Having reviewed the evidence, and acknowledging that I do not have the advantage of having seen the witnesses give evidence, which is a significant advantage in this case, I do not entertain any reasonable doubt that the appellant is guilty of the two counts of aggravated assault. It was clearly open to the trial Judge to be satisfied of the appellant’s guilt beyond reasonable doubt.

26. The complainant was an honest witness who gave truthful evidence. The inconsistencies in her evidence and the number of statements that she made is perfectly consistent with the conflicting emotions a person who is subject to domestic violence experiences. Those emotions include the attachment to the domestic partner which still persists, the desire not to harm the domestic partner, fear of the domestic partner and a feeling of blame or fault for what has occurred. The emotions are demonstrated in the complainant’s evidence in the Local Court and in her statements. She never recanted in any way in relation to the assault that occurred on the morning of 3 October 2015. At work on the morning of 3 October 2015 she behaved exactly how you would expect a person, who had suffered domestic violence, to behave. The evidence of the police officers and Ms Keogh about the complainant’s state of distress and the complaints she made on that morning has the ring of truth and reality. The statement of 14 October 2015 smacks of invention. The complainant corrected the statement she made on 14 October 2015 at an early time. I also accept her evidence that the appellant caused her to make the statement of 14 October 2015.

27. I reject the appellant’s evidence. His evidence about how he came to be aware of the statement of 14 October 2015 lacks all credibility. It is apparent that he was attempting to tailor his evidence to what the complainant had said in the statement of 14 October 2015, and to the realities of the incidents on 2 and 3 October 2015 - the harm suffered by the complainant and the prompt reporting of the matter to the police.

    The further evidence

28. I dismiss the application to tender the statement of 9 October 2015 and the Case Note of 14 October 2015. It is apparent from what I have said that I am satisfied that the tender of those documents would not afford a ground for allowing the appeal. Further, there was no reasonable explanation as to why the appellant failed to adduce the evidence in the Local Court. Due diligence would have produced both documents.

    Conclusion

29. The appeal is dismissed.

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[1]Commissioner of Taxation v Arnhem Air Engineering Pty Ltd (1987) 90 FLR 140, 47 NTR 8; Laurie v Stokes (1951) NTJ 66; contra Reilly v Baker (1989) 99 FLR 52; cf Elliott v Harris(No  2) (1976) 13 SASR 516. It is preferable, and the Act requires, there to have been separate notices at least in respect of the convictions for the charges on information and the convictions for the charges on complaint.

[2][1994] HCA 63; 181 CLR 487.

[3]Karui v Malagorski [2011] NTSC 17.

[4]Douglas v R [2012] HCA 34; 290 ALR 699.

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

[6]Libke v The Queen [2007] HCA 30, 230 CLR 559 at [113].

[7]M v The Queen [1994] HCA 63; 181 CLR 487 at 494 - 495.

[8](1997) 191 CLR 439.

[9] (2002) 213 CLR 606.

[10][2007] NTCCA 11.