B v Gould & Anor

Supreme Court of NSW|2015-12-15|Before: Wilson J, Adamson J

determination

Petronella Boege ("the applicant") has applied for an inquiry into her conviction on 5 January 2000 before the Local Court of New South Wales for an offence of common assault contrary to s 61 of the Crimes Act 1900 (NSW). The application is brought pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) ("CAR Act"). The matter has some history.

The Procedural History of the Matter

The applicant was charged on 15 October 1999 with common assault, the complainant being her former husband, Wolfgang Boege. The matter came for hearing before Magistrate O'Connor on 5 January 2000 at the Local Court at Bega. Having heard evidence from the complainant and the informant police officer (both called in the prosecution case), and from the applicant in her case as defendant, the learned magistrate found the offence proven. A conviction was recorded and a fine of $500 was imposed.

The Evidence before the Local Court

The charge against the applicant arose against a background of a bitterly acrimonious marital separation and divorce. After some years of marriage the complainant and the applicant separated, and the applicant was excluded from the marital home. The complainant remained living in the matrimonial home, which was situated on a rural property.
On 15 October 1999 the applicant attended the former matrimonial home to retrieve some property. The common assault offence was alleged to have occurred on that day.
The matter was heard on 5 January 2000 at Bega. The applicant was represented by counsel.
The transcript of the proceedings of that day have been submitted to the Court as part of the applicant's s 78 application, and I have read and considered the evidence given before the Local Court.
Called by the prosecution were Senior Constable Anthony Van der Hout and Wolfgang Boege. The applicant gave evidence in her case.
Senior Constable Van der Hout deposed (by statement and viva voce) that, on 15 October 1999 the applicant attended the Bega Police Station seeking assistance in retrieving some personal possessions from the marital home. The officer, who did not know the applicant or her former husband, having never met either of them previously, agreed to go to the property with the applicant so that she could collect her possessions. The applicant drove to the property in her car with the officer travelling separately in a police vehicle.
During the drive to the property the officer and the applicant encountered the complainant, Mr Boege, as he drove along in the opposite direction. He stopped and Senior Constable Van der Hout spoke to him about the applicant collecting some of her property. The applicant, who also spoke briefly to the complainant, drove off towards the property whilst Senior Constable Van der Hout was still speaking with the complainant. The officer followed her soon after, with the complainant also driving to the property.
When Senior Constable Van der Hout arrived, he saw the applicant walking away from the house with a number of photograph albums in her arms. The complainant had also arrived at the home, and a dispute between him and the applicant ensued about her attempt to take the photograph albums. Senior Constable Van der Hout told the applicant to give the albums to the complainant. She refused. The complainant stepped towards the applicant and held out his arms for the albums. When he moved to take the albums from her, the applicant swung out at him with her arm.
The complainant moved away from the applicant and went towards the house; the applicant was physically restrained by Senior Constable Van der Hout. The complainant called out to the officer to come and see damage done by the applicant to the front door of the premises, and the officer released the applicant and walked towards the house. The applicant followed.
On reaching the front of the house the applicant tried to pull the photograph albums away from the complainant, who told her to leave. When she was unable to gain possession of the albums, the applicant struck the complainant in the face a number of times. Senior Constable Van der Hout took the applicant by the arms and took her to her car. He directed her to leave the property, and told her he intended to speak to her formally at the police station.
The applicant left the property. After speaking briefly with the complainant, and observing the damage to the front door of the house, which appeared to have been smashed in, the officer returned to the police station. He attended to the documentation necessary to make an application for an Apprehended Domestic Violence Order ("ADVO") against the applicant for the protection of the complainant. When the complainant attended the police station later that day, she was charged.
The complainant gave an account of events that was broadly similar to that of Senior Constable Van der Hout, although he recalled that the blows struck by the applicant to his face had been delivered immediately after he took the albums from her, and as they stood in the garden, rather than by the front door. He deposed that the applicant struck him four or five times to the face before Senior Constable Van der Hout restrained her.
The complainant said that he then walked towards the house, observing the damaged front door. He called to the officer to come and see the damage. When Senior Constable Van der Hout followed him to the house, the applicant also approached the door. The complainant recalled that the applicant looked like she intended to "have another go", but the police officer removed her from the property.
The applicant gave evidence in her case, deposing that, on arrival at the property, she used a wood splitter to smash in the front door to give her access to the premises. She gathered up a number of photograph albums and then returned the wood splitter to the shed where she had gotten it. As she emerged from the shed she said that she was grabbed from behind by the complainant. She asserted that Senior Constable Van der Hout also grabbed her, and told her to give the albums to the complainant. The applicant started to shout abuse at the complainant, who took the albums and ran to the house.
The applicant denied having assaulted the complainant, maintaining in her evidence that she had been attacked by both the complainant and the police officer (T43 for example).

The Conclusions of the Magistrate

Having heard the evidence from the witnesses, and had the opportunity to observe each as they gave their respective testimony, the learned magistrate accepted the evidence of Senior Constable Van der Hout and the complainant as to the assault upon the complainant by the applicant.
The magistrate did not accept the applicant as a truthful witness.
At one point during the applicant's evidence in chief, when she demonstrated the motion by which she asserted the complainant grabbed her, his Worship (as was the form of address then current) asked the applicant a number of questions in an apparent effort to understand her evidence on that point (T37 - T38). Although the applicant's counsel did not describe the movements that the applicant demonstrated to the court for the record, the nature of the movements are clear from the questions asked of the applicant by the magistrate. The movements as described have an air of unreality about them, and this plainly troubled the learned magistrate.
The magistrate was unable to accept what the applicant said about the alleged assault upon her by the complainant. He was conscious of the inconsistencies between the evidence of Senior Constable Van der Hout and the complainant as to the sequence of events and precise location of the assault, but noted that such inconsistencies as existed did not go to the essential elements of the offence before the court for determination.
With respect to those essential matters, the learned magistrate regarded the evidence of the two prosecution witnesses as consistent. In particular, the magistrate accepted Senior Constable Van der Hout's evidence, noting that he was entirely independent of the applicant and the complainant, and that his evidence was consistent with the narrative account he had made immediately after the incident, in support of an ADVO application.

The Proceedings before the District Court

Central to the applicant's fresh s 78 application is the question of purported procedural irregularity in the proceedings before the District Court, leading to what the applicant contends is jurisdictional error in the dismissal of her appeal.
There is a real question as to whether there was in fact an irregularity of such a nature as to lead to jurisdictional error.
The applicant asserts, and the Crown concedes that, on 4 December 2000 Goldring DCJ pronounced orders pursuant to s 133 of the Justices Act 1902 (NSW) [1] directing Senior Constable Van der Hout and the complainant to attend for further evidence.
At the time of the hearing of the applicant's appeal to the District Court, appeals against convictions recorded in the Local Court were dealt with as a rehearing on the transcripts: s 132 Justices Act 1902 (NSW). That provision (now repealed) is in the following terms: "132 Appeals against conviction or order to be by way of rehearing on the transcripts of evidence (1) An appeal against any conviction or order made by a Magistrate is to be by way of rehearing on the transcripts of evidence heard before the Magistrate, except as provided by section 133. (2) For the purposes of subsection (1), a transcript is taken to be a correct transcript of a true record of evidence if the transcript is certified in the manner prescribed by the regulations. (3) On such an appeal, new evidence may be given only with the leave of the District Court, if the Court is of the opinion that it is in the interests of justice that the evidence be given. (4) A clerk of a Local Court must, at the request of an appellant or respondent, provide one copy of the transcript of evidence of any witness free of charge to the appellant or respondent. (5) A registrar is also required, at the request of an appellant or respondent, to provide one copy of the transcript of evidence of any witness free of charge to the appellant or respondent, if the registrar has been provided with a copy of the transcript by a clerk of the Local Court. Note. On receiving notice of an appeal the clerk of a Local Court is required to transmit the relevant papers to a registrar for keeping in the records of the District Court (see section 126 (4))." Witnesses could only be directed to attend to give evidence in person if one of the matters set out in s 133(1) was satisfied. Section 133 is in the following terms: "133 Circumstances when evidence to be given in person (1) The District Court may direct that a person attend to give evidence in person in appeal proceedings referred to in section 132 if: (a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence - the Court is of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give evidence, or (b) in any other case - the Court is of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give evidence. (2) An appellant or a respondent may apply for a direction under this section only if he or she has served on the other party, within such period as the District Court may direct, a notice that the applicant wishes a specified witness to attend at the appeal proceedings. (3) A direction may be withdrawn only on the application, or with the consent, of the applicant. (4) If the District Court refuses to give a direction, the Court must give reasons for the refusal. (5) The regulations may make provision for or with respect to the determination of special reasons under subsection (1) (a) and the determination of substantial reasons under subsection (1) (b). (6) In particular and without otherwise limiting subsection (5), the District Court is, in determining whether special or substantial reasons exist, to have regard to whether or not the appellant was legally represented for the whole or part of the proceedings heard before the Magistrate."
On 4 December 2000 the applicant's counsel sought an order pursuant to s 133(1) (although without referring to the legislation) directing the informant and the complainant to attend for further cross-examination. Counsel submitted to his Honour that the applicant had not been able to fully cross-examine the witnesses as to the location of the assault because no photographs of the property had then been available to her. It was submitted that, with the benefit of photographs that would be available for the hearing of the appeal, the applicant should be permitted to further question the witnesses.
Counsel also advised his Honour that it was intended to call two witnesses in the defence case to give evidence of injuries that the applicant purportedly had after the incident in October 1999, and an order was sought permitting that evidence to be led. Although the applicant had issued subpoenas upon her three adult children to attend the Local Court to give evidence of that nature, all of her children had refused to give evidence on her behalf, and so the evidence was not called before the Local Court. Counsel relied upon the failure of the witnesses to attend as a basis upon which orders should be made for the attendance of two witnesses at the hearing of the appeal, one being a child of the applicant (Linda Muirden), and one being a neighbour (Elaine Bolton).
The Crown did not seek to be heard with respect to the s 133 application, and his Honour made an order for the attendance of both prosecution witnesses, and the two witnesses to be called for the applicant.
As it happened, the District Court was not able to hear the matter in the December 2000 sittings, and the appeal was adjourned to the following year.
When the matter was next mentioned before the District Court before Shillington QC DCJ, there was a question as to which, if any, witnesses were to be called. The court file contained no record of any order having been made requiring witnesses to attend. The Crown had no record of the order, and counsel for the applicant apparently had no real memory of the order having been made, relying only on his file note of it. Since counsel asserted that the order was for the cross-examination of witnesses he had indicated he proposed to call, and that the order had been made by Shillington QC DCJ, neither of which could have been correct, it appears that his Honour came to doubt that any such order was ever made.
The application was made afresh before his Honour and, with respect to the Crown witnesses, declined. His Honour gave a direction for the attendance of Ms Muirden and Ms Bolton.

Was There an "Order" that Bound the Court?

The applicant's contention is that there was a s 133 order made by Goldring DCJ and that, because that order bound the court as constituted by Shillington QC DCJ, his Honour fell into error in proceeding to hear the appeal on the transcript of the prosecution case, as if no order for the attendance of witnesses had been made.
The Crown has filed written submissions concerning the second s 78 application pursuant to s 79(4) of the CAR Act, and submits that, because the order was not entered into the record of the court, arguably, it was not perfected, and was without effect (although it could have been reopened and perfected): Court of Appeal Registrar v Craven (No 2) (1995) 120 FLR 464. Notwithstanding that, the Crown very fairly suggests that the application should be determined on the basis that the direction of Goldring DCJ was effective upon being pronounced.
The Crown further concedes that, if the order made by Goldring DCJ was in effect and binding, Shillington QC DCJ had no jurisdiction to withdraw it without the applicant's consent. In that regard, the Crown concedes that the appellate proceedings before the District Court may have been infected by jurisdictional error.
There are two issues in my view as to the legitimacy or otherwise of the orders made by Goldring DCJ.
The first is whether the failure to enter the orders on the record of the court vitiated them. The second is whether his Honour made valid orders in compliance with the legislative scheme that governed the hearing of appeals from the Local Court at the relevant time.
The first question as to the legitimacy or otherwise of the orders pronounced by Goldring DCJ on 4 December 2000 is the failure to enter them on the Court's record, with the possible consequence that the orders were never perfected and did not take effect.
Having regard to the Crown's concession on that aspect of the matter, it need not be further considered, or determined. As the Crown suggests, I am prepared to consider the failure to enter the orders on the record as no more than a technical error, rather than one that would invalidate the orders of Goldring DCJ, had they been otherwise valid.
The second question in relation to the validity of the orders for the attendance of witnesses pronounced by Goldring DCJ is whether his Honour in fact exercised the jurisdiction of the Court properly or at all at the material time.
Section 132 of the Justices Act 1902 (NSW) operated in such a way that appeals were to be determined de novo, on the transcript. That general rule could only be displaced by reference to s 133. In relation to the application to direct the complainant to give evidence at the District Court proceedings, such an order could only be made if the Court formed the opinion that there were special reasons why, in the interests of justice, the witness should attend to give evidence: s 133(1)(a). In relation to an order directing Senior Constable Van der Hout and the two proposed defence witnesses to attend to give evidence, the Court would have to form the opinion that there were substantial reasons why, in the interests of justice, the witness should attend to give evidence: s 133(1)(b).
The meaning of "special reasons" and "substantial reasons" have been considered (in the context of the attendance of witnesses at committal hearings) and it is clear that the test to be applied with respect to an alleged victim - special reasons - is a more onerous test to meet than is the test of substantial reasons that applied to others. See B v Gould & Anor (1993) 67 A Crim R 297; Regina v Kennedy (1997) 94 A Crim R 341; DPP v Losurdo [1998] NSWSC 16; (1998) 44 NSWLR 618.
In the present matter, in determining the applicant's application for a direction to four named witnesses to attend, Goldring DCJ was obliged to consider whether there was a basis to conclude that there were special reasons why, in the interests of justice, the complainant should attend to give evidence and, in relation to the other three witnesses, whether there were substantial reasons why, in the interests of justice, the witnesses should attend to give evidence.
On my reading of the transcript of the proceedings on 4 December 2000, that did not occur.
The application made to the court by counsel for the applicant was put in very general terms, and did not refer to the statutory basis for the orders that were sought, or to the matters to be considered by the court in determining the application. Counsel asserted generally that: "…we'd like to cross-examine the police officer, Vander Houte [sic] and the victim in this matter, Wolfgang Boege, on the basis that we didn't have evidence in the hearing of the matter on the last occasion in the Local Court because my client, pursuant to an AVO, was denied access to the property […] Now we would've liked to have had those photograph albums in court as an exhibit to put to the witnesses certain things about the way the assault occurred or maybe couldn't have occurred because of the possession of these photograph albums." (T2:53 - T3:08)
In response to a question from the bench as to why the police officer was required, counsel answered "He was there" (T3:51). Counsel went on to say that he wished to put "certain things" to both Senior Constable Van der Hout and the complainant in relation to the albums and "who had them and how could certain things happen if he [the complainant] was holding the photograph albums in a particular way" (T4:04).
As to the two witnesses whom the applicant wished to call in her case on appeal, counsel said this (again, with no reference to the applicable statutory test or how it could be said that the test had been met): "HIS HONOUR: I see. But you also want some photographs of the property which you didn't have last -- TRAPP: Yes, well we didn't have photographs last time either. HIS HONOUR: Ms Boege, just come and sit behind Mr Trapp there so you can get his attention if you need it. TRAPP: There were things I would have put to the witness from photographs about where they were when certain things took place. Now it was very difficult to do that in the Local Court because we didn't have the photographs, we were denied access for the purpose of specifically taking photographs for the hearing. HIS HONOUR: Yes. TRAPP: And as I say I understand now that those photographs have been taken, we just need to get copies of them. HIS HONOUR: I see." (T3:15 - 38)
His Honour then turned to the solicitor appearing for the Crown and asked for her view. Upon receiving the Crown's response ("a matter for your Honour" T4:47), his Honour said, "I think that's all I need to hear" (T4:51).
Even allowing for the exigencies of a busy circuit sitting of the District Court, and for the efficiency with which matters listed in a circuit sitting must be determined, it does not appear that his Honour ever considered the relevant provisions of the Justices Act 1902 (NSW), or turned his mind to the test at s 133 or, specifically, that he formed the opinions necessary as a condition precedent to the making of a s 133(1)(a) or s 133(1)(b) order for the attendance of a witness.
In my view, Goldring DCJ did not exercise the jurisdiction conferred on him by s 133 properly, or at all. If that conclusion is correct, the order he purported to make was itself invalid due to jurisdictional error, and did not bind Shillington QC DCJ.
On that analysis, there were no effective orders that Shillington QC DCJ was obliged to give effect to, and his Honour therefore could not have fallen into jurisdictional error as the applicant asserts.
For the reasons set out above, I do not regard the orders of Goldring DCJ as valid. Ordinarily, that conclusion would militate against any further consideration of the applicant's Part 7 application, given that one such application has already been considered and refused.

Is There a Question in the Evidence that Gives the Appearance of Doubt?

It is noted that this application has been dealt with on the papers, and the parties did not make submissions on the aspect of the matter upon which I have determined the question of the legitimacy of the orders of Goldring DCJ. The focus of both the applicant and the Crown was on the effect of the absence of a record of the orders on their legitimacy, in light of the "fresh" evidence that established that the orders were clearly pronounced in court.
For that reason, and to obviate any unfairness to the applicant, I have decided to consider the applicant's s 78 application as if the orders of Goldring DCJ were valid, as the applicant contends they are, and the Crown concedes they could be.
That necessitates consideration of the evidence that was before the Local and District Courts on the question of the applicant's guilt of the charge, and the possible effect on the conclusions of the respective courts about that evidence, having regard to the inability of the applicant to test the evidence in the way she asserts she should have been permitted to do.
To that end, I have considered the evidence that was before both courts, in transcript.
Like Adamson J in Application by Petronella Boege for an inquiry into conviction and sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001, I am unable to conclude that the application raises any doubt or question as to the applicant's guilt, or as to any mitigating circumstance in the case or as to any part of the evidence in the case.

The Relevant Law

Section 78 of the Act relevantly provides: "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person…"
Section 79 of the Act relevantly provides: "79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) … (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)."
The statutory provisions provide a mechanism for administrative review where there is a basis to conclude that a conviction or sentence may have been entered contrary to proper principles. In Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; (2013) 85 NSWLR 783, Basten JA observed, at [52]: "History and statutory language demonstrate that the overriding purpose of Pt 7 is, consistently with the high value placed on freedom of the individual and the unwillingness to allow that liberty to be infringed because of commission of a criminal offence unless the offence has been established beyond reasonable doubt, to provide a means to address doubts as to compliance with these principles. Historically, the need for a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, so as to avoid an unremediable miscarriage of justice, called for statutory intervention. When appeals became available, that mechanism was not removed but was, indeed, improved upon and made more readily accessible."
The principles to be applied in determining an application pursuant to s 78 were also considered by Johnson J in Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 (commencing at [4]) and are as follows: 1. The court performs an administrative act in determining such an application (at [5]); 2. Determination of an application under s 78 is not intended to provide an additional avenue of appeal after the usual avenues have been exhausted (at [9]); 3. The jurisdiction exercised under Division 3 of Part 7 of the CAR Act is an administrative function which may be activated when the criminal justice system has run its course, frequently because additional evidence has come to light which may raise a doubt or question as to guilt or sentence (at [10]); 4. The powers available under s 79 are limited to the direction of an inquiry, or referral of the case to the Court of Criminal Appeal, there being no power to quash a conviction or sentence (at [10]); and 5. The nature of the jurisdiction under Part 7 allows for flexibility in the material which may be placed before the court relevant to an application (at [11]).
Having read the evidence relevant to the question of proof of the offence to the criminal standard, I do not consider that there appears to be a doubt or question as to the applicant's guilt of the offence of which she was convicted.
As has been observed by all judicial officers who have considered the available evidence in this matter, there were inconsistencies between aspects of the evidence of the complainant and that of Senior Constable Van der Hout. However, those inconsistencies do not go to the elements of the offence, and nor are they of such character as to call into doubt the credit of either witness with respect to the evidence going to the elements of the offence.
It is common in criminal matters to find differences in the accounts of witnesses as to some features of a contested event; that is a natural consequence of the stressful nature of such events, the relative perspectives of different witnesses and their respective capacity to observe events, and of the imperfection of human memory. Inconsistencies in evidence do not, of themselves, dictate that the evidence of the relevant witnesses should not be accepted.
It is always open to any tribunal of fact to accept part of a witness' evidence and reject part of the evidence of the same witness. What is important and necessary is for the tribunal of fact to determine whether the evidence going to the elements of the offence is both accurate and reliable, and can be accepted beyond reasonable doubt.
Whilst the complainant and the informant officer gave evidence which differed as to the sequence and location of the offence, the evidence was in all material matters consistent.
The evidence of each that it was the applicant who was the aggressor on this day is also consistent with aspects of her own evidence before the Local Court.
There was no dispute that the applicant drove off towards the property whilst the informant and complainant were still speaking by the roadside. On arrival there, and well aware that Senior Constable Van der Hout at least, and probably the complainant, were following her to the property, the applicant went so far as to deliberately take up a wood splitter, and use that heavy tool to smash in the front door to the premises. It was open to the magistrate and to Shillington QC DCJ to conclude that this rash and destructive act evidenced an angry disposition and a willingness to resort to physical force to take those things the applicant thought she was entitled to.
The evidence of both prosecution witnesses to the effect that the applicant quickly became verbally abusive towards the complainant is capable of supporting that conclusion. The extreme and degrading nature of the abuse directed at the complainant is also further demonstration of the applicant's angry frame of mind and aggressive demeanour.
The alleged assault was described in consistent terms by the prosecution witnesses and it was well open to the tribunals of fact to conclude that that the account of each as to the assault was accurate and truthful, and could be accepted as reliable. The complete independence of the police officer was also a relevant consideration in that regard.
Whilst the applicant had nothing to prove in the criminal proceedings, the magistrate had the benefit of observing her as a witness and this may have informed his assessment of the evidence overall. The applicant's account of having been "attacked" by both her former husband and Senior Constable Van der Hout lacked credibility, and her demonstration of how the "attack" occurred was decidedly unrealistic, something clearly revealed when the learned magistrate asked the applicant to clarify that aspect of her evidence.
Neither was the evidence called by the applicant at the hearing of her appeal such as to give rise to doubt about the reliability of the prosecution evidence.
The applicant's neighbour gave evidence of having seen a bruise between the elbow and wrist of the applicant's left arm. Importantly, the account the applicant gave to her neighbour of how she had sustained the bruise did not completely support her evidence before the learned magistrate.
Elaine Bolton deposed that the applicant told her that she received the bruise when her husband had grabbed the photograph albums from her. She did not mention an attack upon her by her husband, or any attack upon her by a police officer.
Linda Muirden deposed that her mother had a bruise on one side of her elbow, although she did not remember which side, or which arm was bruised. Ms Muirden was vague as to when she had observed the bruise, saying only that it was on an occasion before April 2000 when her mother called into a shop Ms Muirden had operated. The applicant told her daughter that the bruise was caused by the complainant assaulting her but, again, there was no reference to any asserted role by a police officer.
The location of the bruise seen by Ms Muirden differs to that seen by Ms Bolton, which must cast doubt on the significance of the evidence.
The case against the applicant was a reasonably cogent one, and none of the matters about which the applicant wished to cross-examine witnesses on appeal could have materially affected the evidence relevant to the elements of the offence in my view.
Additionally, it must be borne in mind that a s 78 application is not to be regarded or treated as an opportunity to run the applicant's case at first instance again, with the benefit of hindsight, or on the basis that other or different tactical decisions might or should have been made: Application of Peter James Holland at [9].
Having considered all of the evidence, I am not left with any doubt or question as to the applicant's guilt, or as to any mitigating circumstances in the case, or as to any part of the evidence in the case.
The application should be dismissed.

Endnote

Although the applicant refers in her written submissions to the CAR Act as the legislation relevant to the proceedings before the District Court, I have taken the references to be to the equivalent provisions in the Justices Act 1902 ( NSW), that being the applicable legislation at the material time. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2015

Justices Act 1902(NSW)

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