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Source

Original judgment source is linked above.

1. Over five days in late 2023 and early 2024, the appellant in this matter, Hussin Basher Al Araja, faced trial in the Magistrates Court after having been charged with a number of offences arising out of four separate incidents.

2. On 15 March 2024, the magistrate found him guilty of offences arising out of three of those incidents. He then appealed to this court. That appeal was heard before Loukas- Karlsson J on 11 December 2024. Further written submissions were required. The last of these was received in January 2025.

3. For reasons which are well known, and are unnecessary to repeat, her Honour was unable to deliver judgment in this matter. Accordingly, the parties consented to another judge determining the matter without the need for any further hearing. The matter was then recently allocated to me.

4. Given that the offences the subject of this appeal were alleged to have occurred in March and April 2022, the delay in this matter being determined in this court is clearly regrettable, but was sadly unavoidable.

The Charges

5. The charges faced by the appellant were based on allegations made against him by a person with whom he was in a relationship at the time.

The first incident

6. It was alleged that on 24 March 2022, the appellant assaulted his then partner, the complainant, by grabbing her wrist and forcing it against the gear stick in his car, thus causing a laceration to her right hand. He was charged with an offence of assault occasioning actual bodily harm (CAN 3858/2022). The magistrate acquitted the appellant on this charge, and this charge is not the subject of the appeal.

The second incident

7. It is next alleged that a few days later, on 26 March 2022, the appellant drove to the complainant’s home. She got into his car. She gave evidence that whilst in the car she was confined and assaulted by him causing bruising and bleeding. The appellant was charged with forcible confinement (CAN 3860/2022) and assault occasioning actual bodily harm (CAN 3859/2022). The magistrate convicted him on those charges. The third incident

8. The third and fourth incidents were alleged to have occurred on the same day, 21 April 2022. The third incident arose when the complainant and the appellant were together in his car. He is alleged to have done something which the complainant perceived as an attempt to choke her. The appellant was charged with an offence of common assault (CAN 3861/2022). The magistrate convicted him.

The fourth incident

9. After the third incident, the complainant went to police and participated in an interview with them in which she made allegations against the appellant.

10. She drove her car home after completing this interview. She alleged that the appellant was there, and that he damaged her car with a brick and his knee after threatening to kill her.

11. He was charged with an offence of damaging property under the value of $5,000 (CAN 3862/2022), an offence of threat to kill (CAN 5139/2022) and an offence of common assault (CAN 10176/2023) (an alternative charge to the threat to kill). The magistrate found him not guilty of threatening to kill the complainant, but convicted him of the damage property and common assault offences.

Credibility

12. Clearly, the complainant’s credibility was a central issue for the magistrate to consider. There were a number of aspects of the evidence which called her credibility into question. The magistrate found that “in an overall sense, the complainant cannot be regarded as a highly credible witness whose honesty and reliability can be accepted without hesitation” (Transcript, 15 March 2024 at 10.18).

The appeal

13. As initially filed, there was a single ground of appeal that “[t]he verdict (sic) of the learned Magistrate [on the charges where the appellant was convicted] … were not supported by the evidence and are unreasonable”. However, at the hearing in this court, the appellant placed significant reliance on what was said to be the failure of the magistrate to give herself a Liberato direction (Liberato v The Queen [1985] HCA 66; 159 CLR 507). Accordingly, the appellant sought leave to add a further ground of appeal, namely “The learned Magistrate erred in not considering a Liberato direction”. Leave to add the additional ground

14. The respondent opposed leave being granted to raise this new ground of appeal, pointing out, amongst other matters, that the magistrate had not been asked by counsel for the appellant in the Magistrates Court to give herself such a direction. Counsel did ask the magistrate to give herself a number of directions, but a Liberato direction was not one of them. While certainly not fatal to the application, raising this matter for the first time on appeal is a factor which points to leave being refused.

15. As Mossop J said in SBT v Colvin [2020] ACTSC 216 at [61]: … It is highly undesirable that parties raise for the first time on appeal matters not raised before the magistrate hearing the case. To permit such a course will have the effect of encouraging parties not to raise all of the available arguments and to not provide proper assistance to the magistrate hearing the matter, saving for appeal available arguments to be raised in the event of a conviction. That is a course which is very clearly contrary to the proper administration of criminal justice in the Territory. …

16. It is instructive also to consider the verdicts the magistrate reached. It will be remembered that she acquitted the appellant on the charge arising out of the first incident. As will be seen, this was the only occasion where, in response to the allegations being put to him, the appellant did more than make a bare denial of the allegations (the appellant did not give evidence in the Magistrates Court).

17. On 24 March 2022, Police were called to the location where the appellant and the complainant were in the appellant’s car. They spoke to the complainant and observed an injury to her hand. They also spoke to the appellant. He gave an exculpatory version of events which was recorded on body worn camera footage. He also made a 000 call which was recorded, and which again was exculpatory.

18. The magistrate analysed the credibility of the complainant’s evidence as to how she came to be injured in the first incident, and concluded “there are a number of aspects to the complainant’s credibility that leaves doubt as to the incident having occurred as alleged” (Transcript, 15 March 2025 at 14.21). She therefore acquitted the appellant of the charge arising from the first incident.

19. In contrast to the first incident, the appellant’s responses to the further allegations made by the complainant after being arrested did not amount to an alternative version of events, and were nothing more than a mere denial. He said that the complainant was a liar and that he “did nothing”. In such cases, a Liberato direction is not required – De Silva v The Queen [2019] HCA 48; 268 CLR 57 at [13]: Whether a Liberato direction is required will depend upon the issues and the conduct of the trial. At a trial where there has been no suggestion, whether express or implied, that the jury's determination turns on which of conflicting prosecution and defence versions is to be believed, there may be no need to expand on conventional directions as to the onus and standard of proof. As Wheeler JA also observed in Johnson, the expression “reasonable doubt” is apt to convey that a juror who is left in a state of uncertainty as to the evidence should not convict. (Footnotes omitted.)

20. Thus, if a Liberato direction was required (as to which see below), it was required only in relation to the allegation on which the appellant was found not guilty. The absence of a Liberato direction is of no relevance to this appeal, which concerns offences where the appellant’s response to the allegations did not amount to an alternative version of events.

21. In any case, it may be doubted whether it is necessary for magistrates to routinely give themselves Liberato directions whenever an accused person gives evidence before them or has provided an alternative explanation.

22. The source of the Liberato direction, Brennan J’s dissenting reasons in Liberato v The Queen, is well known. It is notable that his Honour is there speaking about directions to be given to a jury. The direction is necessary to guard against the possibility that a lay juror might reason that rejection of an accused’s version of events automatically means that the prosecution version of events must have been proved. The direction is something which flows from the fundamental requirement that the prosecution must prove its case beyond reasonable doubt. It is not an independent principle of law which the jury must apply. A Liberato direction may even be unnecessary in a trial with a jury where the jury is given clear directions regarding the onus and standard of proof (see R v Niass [2005] NSWCCA 120 at [28]-[29]).

23. In many cases, and this is one, it is unnecessary for a magistrate, entirely familiar with the many directions which flow from the onus and standard of proof in a criminal trial, to have to demonstrate that familiarity. That rejection of an accused’s account does not automatically mean acceptance of the prosecution’s version of events is part of the daily work of a magistrate. The Liberato direction does not amount to a “warning”, it is merely something said to lay jurors by way of explanation of the required onus of proof.

24. Whilst it is part of the judicial function to deliver a judgment which explains how a decision has been reached and states the facts and legal principles applied to those facts, an appeal court “must be concerned with the substance, rather than the form, of the Magistrate’s reasons”: Wolter v Broomhall [2023] ACTSC 331 at [63] per Baker J. Thus, error might be established where the absence of a Liberato direction was accompanied by some indication that the magistrate had done what a Liberato direction is designed to prevent, but it should be a rare case where the absence of a Liberato direction without more would be enough to demonstrate error.

25. In the present case, the magistrate repeatedly referred to the legal principle that the prosecution needed to prove its case against the accused beyond reasonable doubt. There was no requirement that she give herself a direction, fashioned for a lay juror, which expands on that legal principle in circumstances where an accused offers an alternative version of events. As R v Niass demonstrates, such a direction may not have even been necessary if the matter was before a jury. The absence of a Liberato direction was certainly not a matter of relevance to this appeal where the only alternative version of events offered by the appellant related to a charge on which he was acquitted.

26. Leave to raise the additional ground of appeal is refused.

The ground of appeal

27. This means that the only ground for me to determine is whether the verdicts of guilty delivered by the magistrate "were not supported by the evidence and are unreasonable".

28. The principles governing this appeal appear succinctly summarised by Baker J in Inglis v Adamson [2024] ACTSC 4 at [48]-[49]: 48. An appeal under ss 207 and 208 of the Magistrates Court is by way of rehearing: Alexander v Bakes [2023] ACTCA 49. On this 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 Magistrates Court Act. This task requires that the Court undertake a “real review” of the evidence: Alexander v Bakes 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 [55]-[56]. 49. The onus is on the appellant to identify and demonstrate error in the Magistrate’s findings: Alexander v Bakes at [22], citing Allesch v Maunz [2000] HCA 40; 203 CLR 172 at 180 [23] and Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 at [19].

29. It must be remembered that (Alexander v Bakes [2023] ACTCA 49 at [20]): In determining whether there is a material legal, factual or discretionary error, the appellate court must observe the ‘natural limitations’ of proceeding on the record, including, as observed in Fox v Percy [2003] HCA 22; 214 CLR 118 at [23]: …the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witness’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share.

30. As noted above, the magistrate made adverse findings as to the credibility of the complainant. She did not find that the complainant was a "highly credible witness whose honesty and reliability could be accepted without hesitation".

31. Appropriately, she gave herself a Murray direction (from R v Murray (1987) 11 NSWLR 12) (Transcript, 15 March 2024 at 3.37), as the prosecution case depended on the evidence of a single witness, the complainant.

32. In view of her finding that she was not satisfied beyond reasonable doubt that the complainant's evidence was reliable in relation to the first incident, the magistrate gave herself a Markuleski direction (from R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82) (Transcript,15 March 2024 at 4.7). The magistrate noted that she would take into account the findings regarding the first incident in determining whether to be satisfied beyond reasonable doubt that the remaining offences were proved.

33. Nevertheless, after having comprehensively reviewed the evidence before her, the magistrate was satisfied beyond reasonable doubt that the complainant’s evidence should be accepted regarding the offences on which the appellant was found guilty.

34. Having reviewed all the evidence, I too accept that the complainant's credibility was significantly damaged. Indeed, I would not be prepared accept her evidence as reliable unless it was corroborated by independent evidence.

35. There are a number of matters which caused me to have concerns about the reliability of the complaints made by the complainant, not all of which were referred to by the magistrate: (a) The magistrate gave reasons why she was not satisfied beyond reasonable doubt of the appellant's guilt regarding the first incident, in particular because she told police at the scene that it was she who had injured her hand and the appellant was not responsible. The magistrate found that there were some implausibilities in her account of the evening. I too found much of her evidence about this matter implausible. (b) In the Magistrates Court, the appellant tendered a lengthy series of messages sent by the complainant to the appellant. This document extended over many pages. In none of those messages does the complainant suggest that she has ever been subject to violence at the hands of the appellant. Lest it be thought that she was perhaps reluctant to make accusations against him, she does make allegations against him, but they relate to his alleged infidelity, calling him a "cheater” (exhibit D1 page 25). (c) During cross-examination of the complainant, she was played a recording of a conversation in which she was speaking. The complainant agreed that she wanted to speak to the appellant and that she said in that conversation "if he doesn't call me in 10 minutes, I'm going to go call them and tell them he's trying to call me". She agreed that she was saying that she would call the police or the DPP and tell them that the appellant was contacting her in circumstances where, as is obvious, he was not contacting her (such contact by the appellant would, to the knowledge of the complainant, have been in breach of a court order). This demonstrated a willingness to make false allegations, or at least threaten to, against the appellant. (d) She claimed in evidence that the appellant had made admissions in messages sent to her. No such admissions appeared in either of the lengthy exhibits tendered by the appellant which contained messages between him and the complainant. When confronted with this fact in cross examination, the complainant suggested that the admissions were made in "normal messages" (by which she meant SMS), that she had these messages on her phone at the time she was giving evidence, and that she was willing to show them to the court (Transcript, 2 February 2024 at 34). There was then an adjournment to allow the prosecutor to examine the complainant's phone. No messages containing admissions, whether “normal” or otherwise, were ever produced. (e) Related to this is the circumstance that if the appellant was prepared to make admissions when sending a “normal” message why would he not also do so when sending the messages in other messaging services as seen in exhibit D1 and exhibit D4. It is highly likely that no such admissions ever existed. (f) The appellant tendered a series of videos taken by him at his worksite (exhibit D6). They showed the complainant turning up at a building site, sitting in the appellant’s car for a lengthy period of time, and damaging the windscreen of his car by kicking it. These actions demonstrated not only criminal behaviour on the part of the complainant, but also suggested that she was not afraid of him. (g) Further evidence that the complainant was unlikely to have been afraid of the appellant is to be found in a specific message sent by the complainant in which she says to the appellant: “Fucking dog. I’m going to cheat on you tonight”. This message was sent after the second incident on 26 March 2022, in which the complainant alleged that she had been subject to a sustained and violent assault which left her bruised. (h) During cross-examination about this matter, the complainant said that she had a video on her phone showing the appellant asking her why she damaged his car and her replying "because he crashed my car" (Transcript, 2 February 2024 at 22.36). No such video was ever produced. (i) She gave evidence that the appellant fixed the damage to her car, saying "there's a photo of him at Queanbeyan, the video of him fixing my car". When asked “do you have that video" she replied "yes" (Transcript, 2 February 2024 at 17.37). No such video was ever produced. (j) The prosecution called a friend of the appellant's, a Mr Panezai, to give evidence. At one stage he was declared an unfavourable witness, but he did give evidence that he overheard the complainant saying to the appellant during a telephone call "doesn't matter you hit me or not hit me but I'm still going to tell the police you hit me".

36. These matters demonstrate to a significant degree that the complainant was prepared to lie on oath and that she was prepared to make false allegations against the appellant. The result is that, in my view, the complainant's evidence should not be accepted about any allegation she made against the appellant unless it is corroborated to a significant degree by independent evidence.

37. The magistrate, having given herself a Murray direction, and having made adverse findings about the complainant’s credibility, was clearly alive to the need for there to be significant independent support for the complainant’s evidence regarding the second, third, and fourth incidents before she could find the accused guilty on charges arising from those incidents. A significant portion of her judgment is devoted to that issue.

The second incident

38. I agree with the magistrate that the complainant’s evidence regarding the charges arising from the second incident are corroborated by photographs of injuries to her body taken by her (exhibit P4) and perhaps more importantly, by police (exhibit P2).

39. The dates on which the police photos were taken was not in dispute. As far as the photos taken by the complainant are concerned, the circumstances were such that the metadata relating to such photos were unavailable. Importantly, however, this was because the complainant sent the relevant photos to the work phone of the police officer and that phone had been reset. This was of course something that the complainant could not have predicted and so it is likely that the metadata would have shown that the photos of the injuries were taken when the complainant said she took them. The complainant would have assumed that evidence as to when she took those photos was something the police could have easily obtained.

40. The magistrate described the photographic evidence as “compelling”. The injuries depicted in those photographs were consistent with the assault described by the complainant as part of the second incident. No other explanation was offered in the evidence. I agree with the magistrate’s assessment of weight to be given to the photographic evidence.

41. The appellant argues that there are inconsistencies between the account the complainant gave when speaking to police on 21 April 2022 and the description she gave in evidence. In particular, she said something when giving evidence in court which she did not say to police, namely that when the appellant was assaulting her, he was hitting her with his phone. Certainly, that is an inconsistency, but that is not to say that it necessarily, or even likely, suggests fabrication.

42. As McCallum JA, (as her Honour then was) said in RA v The Queen [2020] NSWCCA 356 at [45], simply identifying an inconsistency "leaves no basis for assessing its significance other than the inconsistency itself".

43. It is notorious that when someone recounts an event from their past, unless this is a well-rehearsed anecdote, there will be inconsistencies in those accounts. Things might be mentioned in one account but not the other.

44. It must be remembered that when the complainant was speaking to police about this matter, she had attended the police station to complain about incident three and in doing so, she disclosed incidents one and two. This was no doubt an emotional occasion for the complainant.

45. The assault upon her, as described, was fast and involved multiple blows. She was scarcely in a position to take notes.

46. I accept that there are inconsistencies in the versions given, but I do not regard them as significant.

47. Also relevant is a matter I referred to earlier – the complainant sent a message to the appellant saying "fucking dog. I'm going to cheat on you tonight". Whilst I have noted that this suggests the complainant was unlikely to have been afraid of the appellant, it does not necessarily suggest that she was not the victim of the assault she alleges occurred on 26 March 2022. Certainly, it is a matter in the appellant's favour, but the weight of that matter has to be assessed along with all the other evidence.

48. Finally in relation to the second incident, I have to pay regard to the advantages that the magistrate had which are denied to me. She was able to see and hear the complainant give evidence. She was able to watch demonstrations given by the complainant as she described what occurred in the car during the second incident.

49. Despite the very considerable reservations I have about the complainant’s credibility, in my view the photographs provide substantial corroboration of her evidence regarding the second incident.

50. Having reviewed all the evidence given in the court below, and respecting the advantage that the magistrate enjoyed, I am not satisfied that her Honour erred in finding that the offences of forcible confinement and assault occasioning actual bodily harm relating to the events of 26 March 2022 were proved beyond reasonable doubt.

The third incident

51. That brings me to the third incident, which was alleged to have occurred shortly before the complainant attended the police station to complain about the appellant's conduct in relation to the first, second, and third incidents. The particular allegation arising from the third incident was that the appellant acted in such a way as to make the complainant fear that he was going to choke her. It was that allegation on which the charge of common assault was based.

52. There is no photographic evidence to support this allegation. There is no other independent evidence to corroborate the complainant's version of events.

53. There is one argument that the respondent is entitled to rely on which is this. If, as suggested by the appellant, the complaint relating to the third incident is a fabrication, designed by the complainant to get back at the appellant for failing to respond to her many messages demanding that he call her, one might have thought that the complaint would be made about much more serious behaviour than simply moving in such a way that she feared that he was going to choke her.

54. But against this are the many matters I have referred to earlier which have led me to conclude that I could not be satisfied of the appellant's guilt on the evidence of the complainant unless it was independently corroborated. There is no such independent corroboration and so, consistent with my earlier finding, again paying due regard the advantages the magistrate had, I am satisfied that the magistrate erred in finding the offence of common assault, part of the third incident, proved beyond reasonable doubt.

The fourth incident

55. There is compelling evidence to suggest the accuracy of the complainant's evidence that the appellant damaged her car on 21 April 2022 and is thus guilty of the offence of damaging property.

56. After having been to the police station, the complainant gave evidence that she returned to her home where she encountered the appellant sitting in the passenger seat of a white BMW. He approached her car and damaged it using a brick and his knee. She therefore went back to the police station where she made a further complaint about what had just occurred. Police took photographs of the damage to her car. Those photographs were tendered in the Magistrates Court. They show obvious damage to the complainant's car, specifically the driver-side wing mirror being cracked (see exhibit P1).

57. Whilst it is true that no police officer saw the motor vehicle earlier that evening when the complainant first went to the police station, and was thus unable to say whether it was damaged or not, there are photographs taken by the complainant which are highly relevant. Exhibit P3 is a series of photos taken by the complainant. They show the appellant approaching her car from the vicinity of a white BMW. Importantly, they show an undamaged driver-side wing mirror. They do not show the appellant actually causing the damage but the explanation that the complainant gave for having put her phone down as the appellant approached – that he threatened her family if she didn't stop calling the police or taking pictures of him – is entirely believable.

58. The result is that there is photographic evidence showing the appellant approaching a car with an undamaged wing mirror, and that same car having a damaged wing mirror shortly thereafter. Notwithstanding the criticisms made of the complainant's evidence in this regard, and also her credibility more generally, there is no reasonable explanation for this photographic evidence. It strongly suggests that the complainant is reliable when she described in her evidence how that damage occurred. It strongly corroborates her evidence that it was the appellant who damaged her car.

59. Once again, the appellant relies on inconsistencies, in particular that when speaking to police that night the complainant made no reference to the appellant having damaged her car with his knee. It suffices to say that I do not give such inconsistencies much significance for the reasons I have earlier given.

60. At the hearing in the Magistrates Court, the appellant relied on evidence from his friend Mr Panezai, which he said contradicted the complainant's account. For example, the complainant said that a person from the white BMW got out and intervened at one stage, but Mr Panzeai denied that he did this. The magistrate was not satisfied that Mr Panezai's denial of having done this was truthful. The magistrate described as implausible his version that he remained sitting in his car for some 8 to 10 minutes and only looked at what the appellant was doing for 20 to 30 seconds. Nor, so he said, did he ask anything of the appellant when he returned to his car. I am satisfied, as was the magistrate, that his evidence in this regard was a fabrication.

61. One other matter raised by the magistrate as suggesting the reliability of the complainant's evidence in this regard is why, if the complainant's evidence was untrue, she would return to the police station and make further complaint, relatively soon after having participated in an interview with police.

62. The magistrate put it this way: In the context of this matter where it is suggested that the complainant was motivated to make false complaints against the defendant, it seems unnecessary for her to have done so in respect to this alleged incident. She had already made a complaint to the police and there was no need for her to further complain if it was something that didn't happen (Transcript, 15 March 2024 at 27.33).

63. There is much force in the magistrate’s reasoning.

64. That is enough to deal with the offence of damaging property arising from the fourth incident. Having reviewed all the evidence given in the court below, and respecting the advantage that the magistrate enjoyed, I'm not satisfied that her Honour erred in finding that the allegation of damaging property was proved beyond reasonable doubt.

65. That brings me to the charge of common assault which the magistrate found proved. As I mentioned earlier, this charge was laid in the alternative to a charge of threatening to kill on which the appellant was acquitted. The magistrate was satisfied beyond reasonable doubt that the words “I’m going to fucking kill you” were said, but not that a reasonable person would fear that the threat would be carried out. The magistrate was satisfied that the words amounted to a threat to inflict force on the complainant so as to put her in fear.

66. In contrast to the other allegation made as part of this incident, criminal damage, there was no evidence to support or corroborate the complainant’s evidence that the accused said the words “I’m going to fucking kill you”. I have earlier explained why I am of the opinion that the appellant could not be found guilty of a charge arising from the uncorroborated evidence of the complaint. For that reason, I find that the magistrate erred in convicting the appellant of this charge of common assault.

Orders

67. The orders of the Court are: (1) Leave to raise the additional ground of appeal is refused. (2) The appeal is allowed in part. (3) The convictions for common assault (CAN 3861/2022 and CAN 10176/2023) are set aside. (4) The remaining convictions the subject of the appeal, being CAN 3859/2022, CAN 3860/2022 and CAN 3862/2022, are confirmed.

I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman. Associate: N Gannon Date: