Christopher John Courtenay v R

Particularisation of the charge

1. In the Local Court the prosecution did not particularise the precise acts or injuries that it relied on to establish the assault occasioning actual bodily harm. The prosecution case tended to focus on the complainant's allegation that the appellant punched her 4 or 5 times in the left side of the face, but was not limited to this allegation. This is demonstrated in the magistrate's decision on the section 59 offence. She ultimately rejected the appellant's evidence by finding that it was implausible that he could provide an explanation for each of the minor injuries sustained by the complainant in the course of the argument.
2. In the appeal, the prosecution particularised the assault occasioning actual bodily harm to be confined to the allegation that the appellant punched the complainant 4 or 5 times to the left hand side of her face and that the punches resulted in a contusion to the right of her left eye socket (the contusion). The contusion was best depicted in the photographs that became Exhibit 1 in the Local Court.
3. As a result of that concession, which was entirely appropriate, the nature of the case to be considered by me is different to that considered by the magistrate.

Relevant law

1. The applicable principles to be applied in determination of the appeal are as follows.
2. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].
3. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].
4. Whilst the magistrate's reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].
5. The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
6. Section 84 Crimes (Domestic and Personal Violence) Act 2007 provides that an appeal may be made to the District Court against the imposition of an ADVO. The procedure adopted is that provided for by Part 3 Crimes (Appeal and Review Act) 2001 relating to conviction appeals with such modifications as are necessary or provided for in the Regulations.
7. Section 16 Crimes (Domestic and Personal Violence) Act 2007 provides that an ADVO may be made if the Court is satisfied that the applicant has reasonable grounds to fear and in fact fears the commission of a personal violence offence by the defendant or engagement in conduct by the defendant that intimidates the applicant or amounts to stalking, that is sufficient to warrant the making of the order. It is not necessary for the applicant to in fact fear that an offence will be committed if the Court is of the opinion that the applicant has been subjected to conduct by the defendant amounting to a personal violence offence and that there is a reasonable likelihood that the defendant may commit a personal violence offence and the making of the order is necessary in the circumstances to protect the person from further violence. Conduct may amount to intimidation even though it does not amount to actual or threatened violence and it consists only of damage to property. The matters require proof on the civil standard of the balance of probabilities.

Material considered on the appeal

1. The prosecution tendered the transcripts of the proceedings before the magistrate on the dates I have outlined and the relevant exhibits.

Analysis of the magistrate's reasons

1. The magistrate noted that the prosecution case depended on the evidence of the complainant. She then summarised the complainant's evidence in terms that were uncontroversial and which I will not repeat.
2. The magistrate noted the inconsistencies between the complainant's police statement, compiled on the night, and the evidence she gave in the Local Court. Of most significance was the inconsistency said to be introduction in her evidence of a second episode of intentional choking on the bed.
3. The magistrate noted that the complainant was cross-examined for 2 days and that there was evidence that she was clearly distressed on the night when she made the police statement.
4. The magistrate considered that the photographs of the injuries in Exhibit 1 provided some support for the complainant's version of events, as did the evidence of complaint to her father.
5. The magistrate referred to the evidence of the neighbours. One of the neighbours could not come to Court but her statement was tendered (Exhibit 4). She heard a female voice say words to the effect "Get away from me" and "Keep away from me" and a male voice say words to the effect, "I've just come home what's wrong with you?" She then heard a door slam loudly. A male neighbour, who lived in the flat above the appellant and the complainant was called to give evidence. He was awoken by shouting and then he looked at his mobile phone. He went out onto his balcony. He heard a female voice saying "Don't touch me; Stay away from me" and a male voice saying "I'm just back; I've done nothing wrong". He said that the shouting was all around the unit and that it did not stop. He did not hear any secondary sounds consistent with a struggle.
6. The magistrate referred to the evidence of the complainant's general practitioner, Dr Godfrey. Dr Godfrey was given a history that the complainant had been punched in the left cheek, that she had been thrown against a wall and hit her left elbow, and that she had been thrown on a bed and there was an attempt to strangle her. Dr Godfrey palpated the complainant's throat and thought that she was tender in that region. Dr Godfrey was of the opinion that the injuries were consistent with the history given. She accepted in cross-examination that she was not a forensic pathologist.
7. The magistrate then turned to the appellant's case. The appellant called Professor Duflou, a forensic pathologist. The magistrate summarised his evidence as being that if the complainant was choked as she alleged that he would have expected the presence of more significant and/or serious injury. He opined that the contusion was unlikely to have been occasioned by 4 or 5 punches because it was unlikely that she would have remained still and the injury would have been sustained over a more extensive area. He was of the opinion that the contusion could have been caused by the complainant falling against the wall, when the appellant and the complainant became entangled (the 2 person fall). The appellant gave evidence that this is how the fall occurred near the front door.
8. The magistrate noted that the appellant called character evidence from his ex-wife, a friend and his mother. Each of the character witnesses described the appellant as not aggressive or violent, even if he was intoxicated. The magistrate also noted that the appellant had no prior convictions.
9. The magistrate referred to the evidence of one of the police officers that saw the appellant on the day after the argument to the effect that the appellant was shocked when the allegation of assault was made, that there was no sign of a struggle in the unit and no sign of injury to the appellant.
10. The magistrate then referred to the appellant's evidence, which I will not repeat. Again her summary was uncontroversial.
11. The magistrate made limited credit findings. In relation to the complainant, the magistrate stated that she held up reasonably well under cross-examination. She gained the impression that there were some parts of the evidence where she was unsure of the order of events. The magistrate made allowance that she was distressed on the night she made her statement to the police and that although there were some inconsistencies the magistrate did not consider them to be significant.
12. In relation to the appellant the magistrate said that he was not dissuaded in his testimony by cross-examination. She did not find anything about his demeanour that detracted from his evidence.
13. The magistrate correctly identified that she needed to examine the accounts and the independent evidence to determine if she could be satisfied beyond reasonable doubt that the prosecution had proved its case.
14. The magistrate accepted Professor Duflou's evidence and decided that she could not be satisfied beyond reasonable doubt that the choking as described by the complainant occurred, because the injuries were not what the Professor expected them to be. The magistrate found that the only injuries depicted in the photographs in Exhibit 1 relevant to the intentional choking allegation were red marks under her chin.
15. On the section 59 charge the magistrate considered the complainant's injuries were consistent with her account. She then stated that the appellant's account was that the complainant was behaving hysterically and that he grabbed hold of her to protect her from herself as implausible, particularly considering that there was no evidence that she had ever behaved similarly in the past.
16. The magistrate rejected Professor Duflou's evidence about how the contusion may have been caused by the complainant falling against the wall. Before drawing that conclusion, the magistrate did not make an express finding as to how the fall occurred, i.e. in accordance with the complainant's evidence or the appellant's evidence. Implicitly, she rejected the appellant's evidence but did not give a reason for doing so. By reason of the way the appeal was conducted, by the prosecution relying on the contusion as the injury required to establish the element of actual bodily harm this evidence was significant. In my decision if I find that it was a reasonable possibility that the contusion was inflicted in the 2 person fall described by the appellant in his evidence, then I must acquit him of the section 59 offence.
17. The magistrate noted that the complainant suffered a series of injuries and she did not accept the appellant's version of how all of them occurred by him restraining her in the course of an episode of hysteria. As a result of the way that the appeal was conducted, I cannot rely on this aspect of the magistrate's reasoning.
18. The magistrate made no findings as to credit based on demeanour. She did not therefore have an advantage arising from seeing and hearing the witnesses.
19. The magistrate noted the evidence given by the character witnesses and that the appellant relied on good character but did not direct herself as to how she should make use of that evidence.

Consideration

1. Having conducted an independent assessment of the evidence before the Local Court, I have a reasonable doubt as to the appellant's guilt of the offence of which he was found guilty. I do not consider that the magistrate's finding is explicable by her advantage in seeing and hearing the witnesses: M v R (1994) 181 CLR 487 at 494. The reasons for my finding of reasonable doubt are as follows.
2. First, the appellant's acquittal of the section 37 offence makes it difficult for me to see how the complainant's evidence could be accepted on the section 59 count: R v Markuleski (2001) 52 NSWLR 82 at [189]-[191].
3. The complainant gave a detailed and passionate account of the intentional choking at the hands of the appellant. He lifted her off the ground and was squeezing really hard. She could not breathe or make a noise other than a gurgling noise. The pressure was getting stronger and stronger and she felt dizzy. He "dragged" her by the neck back into the bedroom and did not release the pressure on her throat until throwing her onto the bed.
4. When she was on the bed he pinned her down with his body and strangled her again. This second episode was not in her police statement.
5. Professor Duflou a forensic pathologist opined that the injuries depicted in the photographs that became Exhibit 1 and were noted by Dr Godfrey were not consistent with the complainant's account. He opined that on the basis of the complainant's evidence that it would have been quite reasonable to see bruising of the neck and fractures of the hyoid or thyroid cartilage, particularly where the complainant's evidence was that the pressure on her neck was so intense that she could not speak during the choking episodes.
6. The magistrate accepted the Professor's evidence and could not be satisfied beyond reasonable doubt that a choking occurred as she described and acquitted the appellant of the section 37 offence.
7. In my view, the magistrate's finding brought into question the honesty of reliability of the complainant's evidence. The introduction by the complainant of the second episode of choking on the bed in her evidence that was not contained in her police statement also gave me cause for concern that the second episode of choking was a matter of recent invention.
8. Her evidence about desperately trying to get the appellant's hands of her neck by "scratching" at his hands was also not supported by any injury being occasioned to the appellant's hands. The appellant's hands were examined by a police officer later in the day and photographs of his hands were taken by his brother shortly after he was released from the Kings Cross Police Station.
9. The contusion was not consistent with the complainant being punched 4 or 5 times by the appellant because there was no evidence of injury to his hands and it was not what Professor Duflou would have been expected to have been inflicted on the basis of the complainant's evidence. Professor Duflou opined that if the complainant was punched 4 or 5 times in the face even with moderate force he would have expected more injury in particular significant underlying injury to the eye socket by way of a bony injury such as a fracture and at least more significant bruising. He gave evidence that it was unlikely that in the heat of an attack such as the one described by the complainant that she would have remained still enough to allow the multiple punches to impact the same area of her face. This led Professor Duflou to conclude that if she had been punched multiple times as described that the injuries she sustained would have been to a larger surface area of her face. He described her injuries as "surprisingly little" and he would have expected significantly more injury if her account was correct.
10. The complainant gave evidence that the injury to her left elbow was so significant that when she fell back against the wall that she noticed there was blood smeared all over the wall. This evidence was inconsistent with the observations of the minimal amount of blood on the elbow area of her jumper and the observations of the police at the unit who did not observe any signs of the struggle including the presence of any blood on the wall adjacent to the front door of the unit.
11. The evidence of the male neighbour was also consistent with the appellant's version of events in the following respects. First, what he heard the appellant say on a number of occasions was words to the effect "I've done nothing wrong" which was consistent with the appellant's version of events and also consistent with the fact that at that point in time he had not punched her in the face on a number of occasions. Second and most importantly in my view, the male neighbour did not hear any sounds that were consistent with there being a long and extended physical fight as was described by the complainant in her evidence.
12. There were also significant inconsistencies between the complainant's police statement and her evidence in the Local Court. Those inconsistencies appeared to me to be self-serving and an effort to bolster her account. The most significant of these matters was the allegation in her evidence of the second episode of choking. Other examples included giving evidence that the "sole purpose" of opening balcony door of the bedroom was so that the neighbours could hear what was happening, but in her police statement stating that she opened the balcony door to jump off the balcony.
13. Each of these matters in combination leads me to the conclusion that I cannot be satisfied beyond reasonable doubt of the complainant's version of events.
14. Second, there was a reasonably available alternate hypothesis as to how the complainant received the contusion. The complainant's evidence was that the appellant threw her against the wall at which time she suffered an injury to her left elbow. The appellant gave evidence that when they were near the front door they became entangled and then both fell into the wall.
15. Professor Duflou opined that the contusion could have been sustained by the complainant on either version of the fall. He said that it was more likely that the contusion was sustained in the 2 person fall than if the complainant's version of events was accepted.
16. I have already found that the contusion is inconsistent with the complainant's version of events. Taking into account the evidence of the complainant, the appellant and Professor Duflou on this issue I am satisfied that there is a reasonable possibility that the contusion was occasioned in the 2 person fall as described by the appellant in his evidence.
17. Accordingly I cannot be satisfied beyond reasonable doubt that the element of the offence being the actual bodily harm occasioned was caused by the assault alleged by the prosecution.
18. Third, the appellant has always denied the allegations. Senior Constable Doxakis gave evidence that the appellant appeared to be genuinely surprised when he first heard the allegations against him. The appellant raised his character. He is a man with no prior convictions and he called positive testimony of good character to the effect that he was not a violent person and particularly he had not conducted himself in the past in any way that could be consistent with having a tendency towards domestic violence.
19. The magistrate failed to direct herself as to the use that should be made of this evidence. The appellant was entitled to rely on his good character to prove that he was not the type of person to commit an offence and that he was likely to tell the truth to the Court when giving evidence.
20. In my view the benefit to the appellant of the evidence of his good character should have been significant. The appellant's good character was not given appropriate weight in the Local Court proceedings. Taking into account the appellant's good character and the use to which I can put it in determining this matter would be also sufficient for me to have a reasonable doubt concerning his guilt of the section 59 offence.
21. The orders I make on the conviction appeal are: 1. Appeal against conviction is allowed. 2. I set aside the conviction and the penalty imposed by the magistrate on 1 September 2015.

Appeal against the imposition of the ADVO

1. The magistrate presumably made the Apprehended Domestic Violence Order on the basis that she had convicted the appellant of a personal violence offence as defined by the legislation. As I have set aside the convictions I must consider the requirements of the section afresh.
2. My findings on the inconsistency of her evidence as to the injuries that she alleged she suffered, are sufficient for me to reject her evidence in its entirety when she alleged that she was intentionally choked or punched. I am not even satisfied on the balance of probabilities that those things occurred.
3. I have carefully considered the appellant's evidence and I prefer it to the evidence of the complainant whenever it is in conflict. In so doing I am mindful that I did not see or hear the witnesses give their evidence, but for the reasons expressed the magistrate did not make credit findings that prevent me from doing so.
4. The evidence establishes that there was a heated argument. On the appellant's own evidence he touched the complainant when she did not want him to. That would ordinarily be considered to be a battery. The contact with her was sufficient to cause her minor bruising in a number of areas. I accept that he probably believed his actions were necessary at the time to prevent her from leaving the unit in an agitated state. They were probably not entirely reasonable as they had the effect of causing her harm and they did not achieve a resolution of the situation.
5. There has been no further contact between the appellant and the complainant.
6. The provisional order was in place from 30 August 2014. The Final Order has been in place since 1 September 2015. In other words the appellant has been the subject of the order for a period of 18 months and has observed its terms in that period
7. Having considered sections 16 and 17 Crimes (Domestic and Personal Violence) Act 2007 I am satisfied on the balance of probabilities that the appellant engaged in conduct that amounted to a personal violence offence namely a common assault, however the conduct was such that it was insufficient to warrant the making of an order. I am satisfied on the balance of probabilities that there is no reasonable likelihood that the appellant will commit a personal violence offence against the complainant in the future and the making of an order is not necessary to protect her from further incident.
8. The orders I make on the ADVO appeal are: 1. Appeal against the imposition of the ADVO is allowed. 2. I set aside the order made by the magistrate on 1 September 2015.

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