Davey v R

The relevant law

1. The applicable principles to be applied in determination of the appeal are as follows.

Nature of the appeal pursuant to s 18 Crimes (Appeal and Review) Act 2001

1. 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].
2. 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].
3. Whilst the magistrate's reasons are not part of the certified transcripts referred to in s 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].
4. The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
5. An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).
6. The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).
7. The requirement that the appellant demonstrate error does not reverse the onus of proof, in that the prosecution at all material times bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA).
8. An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to the appellant's guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).

The s 37(1A) offence

1. Section 37 Crimes Act 1900 relevantly provides: (1A) A person is guilty of an offence if the person intentionally chokes, suffocates or strangles another person without the other person's consent.
2. "Suffocates" is not defined in the Act. The Macquarie Dictionary relevantly defines "suffocates" as "to impede the respiration of".

Self-defence

1. Section 418 Crimes Act 1900 provides: (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) … (c) …. (d) …. and the conduct is a reasonable response in the circumstances as he or she perceives them.
2. The statutory test for self-defence was considered in R v Katarzynski [2002] NSWCCA 613. The questions to be considered by the tribunal of fact when self-defence is raised are: 1. is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself (or another)?; and 2. if there was, is there also a reasonable possibility that what the accused did it was a reasonable response to the circumstances as he or she perceived them?
3. The first question is to be determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second question is determined by an entirely objective assessment of the proportionality of the accused's response to the situation as the accused subjectively believed he or she faced. The prosecution negatives self-defence if it proves beyond reasonable doubt that either: 1. the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence (or that of another); or 2. what the accused did was not a reasonable response to the danger, as he or she perceived it to be.
4. Care must be exercised in analysing cases involving self-defence to avoid the "unreality of dissecting into minute detail" events that occurred in a short period of time: R v Conlon (1993) 69 A Crim R 92 at 97. Further the self-defence need not be the sole state of mind on the part of the accused at the time he or she acted, but must be the dominant state of mind on his or her part: R v Viro (1978) 141 CLR 88 at 127.

Analysis of the magistrate's reasons

1. The magistrate delivered an ex tempore judgment immediately following the completion of addresses and some allowance should be made for that in the context of the workload of the Local Court. The magistrate appeared to give a summary of the evidence from her notes and at times her recitation was disjointed and difficult to follow.
2. In this case, the prosecution relied on the complainant's DVEC as her evidence in chief and I am in the same position as the magistrate to make findings on that evidence. I accept that the magistrate was in a better position to assess the complainant as a witness when she gave evidence. However, for reasons that I will come to, the magistrate engaged in impermissible reasoning to accept the evidence of the complainant as compelling and thereby misused her advantage of seeing and hearing the complainant give evidence.
3. I accept that the magistrate was in the best position to assess the appellant as a witness. She found that he was an evasive witness on the issue of his sobriety and how much he had had to drink in the period leading up to the argument. Ultimately, the magistrate rejected his evidence on the basis that it was inconsistent with his ERISP and therefore unreliable and that the complainant's injuries were inconsistent with his account or possibly more consistent with her account. On these matters, I am in the same position as the magistrate to assess the appellant's evidence. For reasons that will become apparent, I have not found it necessary to rely on the appellant's evidence in disposing of the appeal.
4. For the reasons set out below, I am satisfied that the magistrate engaged in impermissible reasoning to justify her acceptance of the complainant as a witness of truth and that she failed to properly consider the prosecution's failure to call an independent witness, Callum Everett, who was present in the unit at the time of the altercation. These two matters in combination lead me to the conclusion that the magistrate's decision was legally wrong and accordingly I will only refer to the relevant parts of the magistrate's reasons.
5. The magistrate summarised the complainant's evidence in terms that she had "volunteered" to the Police that she was emotional as a result of the appellant's alleged infidelity and "because she was pregnant and she felt blackmailed into having an abortion" [T56 line 21].
6. The magistrate recited the complainant's evidence in the DVEC that she was uninjured and that the appellant just got off her after pinning her to the bed, as opposed to being pushed off by her as suggested by Senior Constable Paczkowski's question. The magistrate reasoned from this evidence that the complainant did not embellish her evidence, presumably because she did not allege that she was injured or that she was required to push the appellant off her.
7. The magistrate then recited the complainant's evidence that she had difficulty breathing for a short time (about 20 seconds) and that later, when she was trying to retrieve her phone, they were pushing each other. The magistrate stated that this evidence demonstrated that she was prepared to make concessions against her own interest and that she was not taking an opportunity to blame the appellant, or paint him in a bad light, reasoning that "if she was providing a malicious account that she would seek every opportunity [to do so] but instead" by giving the evidence that she did that she had declined those opportunities [T56 line 49 - T57 line 5].
8. The magistrate assigned the same significance to the complainant's evidence that she threw a Tiki statue, and/or pieces of it at the appellant during the altercation causing damage to the door, that she described her jaw as "a bit sore" during the DVEC, that she was angry with him, that she hit him and that the appellant had checked on her welfare on the day after the termination.
9. The magistrate's finding as to the reliability of the complainant's account was based on false logic for the following reasons. First, the appellant did not make concessions against her own interest by giving her version of the events. A witness' perceived choice not to exaggerate cannot be used as a means of bolstering their credit or as a reason to accept their account as truthful. Second, the magistrate's reasoning was based on an assumption that if the complainant was giving a false account that she would act in a certain way. There was no proper basis on which the magistrate could make that assumption about the complainant's state of mind. It was equally possible that the complainant set out to give false evidence, but it did not occur to her to exaggerate or embellish her evidence, or that she wanted to keep her version as close to the facts as possible. A further problem is that all of these possibilities, including the magistrate's assumption, are nothing more than speculation.
10. The magistrate noted that the complainant stated that Callum Everett was present in the unit at the time of the altercation and that she called for help. In cross-examination, the complainant accepted that Mr Everett opened the bedroom door during the altercation. Her evidence was that she was lying on the ground at that time, which the magistrate found was consistent with the appellant's version in his ERISP.
11. The magistrate noted SC Paczkowski's evidence that he was supplied with a telephone number for Mr Everett and that he left a number of messages for him to no avail. The magistrate found "the prosecution tried to get that witness to court and so no inference against the prosecution can be drawn for the absence of that witness" [T61 lines 1-5].
12. Mr Everett was clearly in a position to see and hear some or all of the events in dispute. The efforts by the Police to secure him as a witness were paltry. SC Paczkowski did nothing more than call a number he had been given a few times. No efforts were made to find an address for Mr Everett, to visit him or to issue him with a subpoena. Mr Everett was a witness who might have been expected to be called by the prosecution but was not. Whilst the magistrate was correct to find that she could not draw an adverse inference against the prosecution, she was obliged to consider whether in the circumstances she should entertain a reasonable doubt as to the appellant's guilt: Mahmood v Western Australia (2008) 232 CLR 397 at [27] (Gleeson CJ, Gummow, Kirby and Kiefel JJ). The magistrate did not consider the failure of the prosecution to call Mr Everett in that way.

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 offences 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. I am not actually persuaded of the appellant's guilt beyond reasonable doubt of the offences for the reasons that follow.
2. The failure by the prosecution to call Mr Everett causes me to have a reasonable doubt about the appellant's guilt. Mr Everett was clearly in a position to see and hear the relevant events of the night. The complainant's evidence was that she called out for help and that Mr Everett came to the door of the bedroom when she was lying on the ground. In his ERISP, the appellant said that when Mr Everett came to the door they were shouting at each other and the complainant turned and said something to Mr Everett. There was no cross-examination of the appellant regarding Mr Everett's involvement. Mr Everett was in a position to resolve some of the disputes in the evidence.
3. The complainant's initial recitation of the events in the DVEC was sparse, requiring SC Paczkowski to ask a number of follow up questions to elicit more detail of what had occurred and when. A number of the complainant's allegations were prefaced by the qualification that she "thought" an event had occurred or that she could not remember if an event had happened. There was no discernible chronology to the complainant's evidence. In particular, she did not give any version of how the altercation started. I have taken into account that the complainant had gone through a very emotional time in the few days prior to the incident and that she may have been traumatised by the altercation. However, her evidence in the DVEC lacked detail and I found it to be unconvincing.
4. SC Paczkowski had only limited success in eliciting further information and on occasions resorted to asking questions that suggested the answers which were adopted by the complainant. For example, the complainant could not explain how she ended up on the ground after she alleged that she was kicked in the stomach, how she was kicked in the head or whether she was hit in the face with an open hand or a closed fist. She later accepted the prompts given to her by SC Paczkowski that she fell to the ground as a result of being kicked in the stomach and that the "nasty bump" on her head was caused by the kick to the head.
5. I am not satisfied to the criminal standard that the complainant was suffocated or that the appellant had the requisite intent to do so. The complainant's evidence about the suffocation charge was initially that the appellant placed his hand over her mouth and nose making it difficult for her to breathe. She did not allege in the DVEC that the appellant had pinched her nose, but that was an allegation put to him in the ERISP so it is possible that she did make that allegation to the Police. This allegation was not referred to in her evidence in chief and only came out in answer to a question in cross-examination. I am not satisfied on the evidence that the appellant did pinch the complainant's nose while he had her hand on her mouth. In those circumstances, it is reasonably possible that her breathing was not impeded and I cannot be satisfied beyond reasonable doubt that it was.
6. The prosecution case was that the Court would be satisfied that the appellant intended to suffocate the complainant by inference from his actions of being on top of her and covering her mouth. For the reasons given I am not satisfied that the appellant pinched the complainant's nose, and I cannot be satisfied beyond reasonable doubt from his actions that he intended to impede her breathing or recklessly did so.
7. As to the common assault charge, the injuries sustained by the complainant, and for that matter the appellant, were consistent with either version of events, except in one significant respect. In the DVEC, the complainant stated that immediately after she sustained the kick to the stomach, "I felt a lot of blood come out". There was no physical evidence presented to prove this aspect of the allegation. As I have already stated, the complainant accepted the allegations relayed to her through SC Paczkowski's leading questions, particularly relating to the allegations constituting the common assault charge. Further, she responded vaguely to other questions and did not remember or was unsure of the essential events. I am not satisfied beyond reasonable doubt of the complainant's evidence concerning the common assault charge. On this charge, I do not accept that the appellant kicked the complainant in the stomach or the head in the manner she alleged.
8. As to the assault occasioning actual bodily harm charge, the real issue was self-defence. It was common ground that the appellant got on top of her on the bed in the way the complainant alleged. The complainant gave evidence that it was an emotionally charged argument, that she struck the appellant, pushed the appellant and threw pieces of a ceramic statue at him. As I stated earlier, the complainant did not give any convincing evidence of how the altercation started or the chronology of events involved. I respectfully do not agree with the magistrate's conclusion about the complainant's injuries being more consistent with her version of events. This finding is lay opinion, about which reasonable minds may differ and my view is that the injuries, with the exception of the "passing blood" were equally consistent with either version. Overall, I am not satisfied that I should accept the complainant's evidence to the criminal standard. In those circumstances, I am not satisfied beyond reasonable doubt that the prosecution has proved the charge, or that it can negative self-defence.

Conclusion

1. For the reasons, the orders I make are as follows: 1. Appeal allowed. 2. The convictions and penalties imposed by the magistrate are set aside. 3. The associated ADO should be set aside.

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