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[2025] ACTCA 51
respondent. The appeal was dismissed. The Court held that the appellant had not established material legal, factual or discretionary error by the magistrate or the primary judge, and the convictions were...
The Court of Appeal dismissed Doyle’s challenge to his convictions. It treated the appeal as requiring proof of material error, not simply disagreement with the findings. The Court examined the alleged problems with the complainant’s account and concluded that they did not prevent the magistrate from accepting it beyond reasonable doubt. It also held that Doyle’s bare denial did not provide an alternative account that undermined the complainant’s evidence. The magistrate had the advantage of seeing and hearing the witnesses, and the Court found no material error in the way the convictions were upheld.
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2,362 words · generated 06/10/2026
Scott Doyle appealed to the ACT Court of Appeal after the Supreme Court dismissed his appeal against three Magistrates Court convictions. The convictions were for contravening a family violence order, aggravated common assault and damaging property. The primary judge’s dismissal of the earlier appeal was made on 9 February 2024; Doyle filed his Court of Appeal notice on 22 February 2024 ([1]-[4]).
2 cited instruments linked from this judgment.
The Court of Appeal identified two grounds in the notice: that the appeal judge erred in finding Doyle had engaged in conduct that put him within 70 metres of the complainant, and that the judge erred in finding Doyle punched her ([14]). Doyle represented himself. He filed three affidavits and relied on three undated letters. The Court treated their substance as submissions supporting his appeal, rather than further evidence ([15]-[28]).
The complainant’s account, summarised from the evidence at trial, was that Doyle punched her in the mouth at his home after an argument. She said her dentures broke, she left, and she later told police what had happened. The judgment records that the evidence also included her account of a split lip, her distress, and a visit from a woman who returned the broken dentures. Mr Samson, who was at the complainant’s home, recalled that she came in upset and without her dentures, and that a woman later arrived with something wrapped in tissue ([8], [38]-[44]). The Court did not treat every part of this evidence as uncontested or equally persuasive. Its question was whether the challenges Doyle raised established material error in the decisions below.
The Court said that, in substance, Doyle continued to argue that the convictions were unreasonable or unsupported by the evidence, focusing on the complainant’s credibility and reliability ([27]-[29]). It considered the appeal on that basis and dismissed it. The order was: “The appeal is dismissed” ([76]).
The Court first addressed the nature of the appeal. It relied on Alexander v Bakes for the distinction between an appeal by way of rehearing and an appeal against conviction on the ground that a verdict is unreasonable. For a rehearing appeal under s 37O(1) of the Supreme Court Act 1933 (ACT), an appellant generally has to establish material legal, factual or discretionary error. A finding of unreasonableness may amount to factual error, but the appellant does not have to establish unreasonableness if another material error is shown ([24]-[25]).
The Court then assessed the credibility arguments in the context of the evidence and the magistrate’s opportunity to see and hear the witnesses. Its reasoning did not treat the presence of inconsistencies as automatically fatal. Rather, it asked whether those matters meant the complainant’s account could not reasonably be accepted beyond reasonable doubt.
The Court rejected the contention that the alleged motive of revenge over Doyle’s infidelity substantially undermined the complainant’s account. It noted that the primary judge had considered that a lie to conceal infidelity was different from a fabricated assault allegation allegedly made for revenge. The Court agreed that, in the circumstances of this case, the detail and manner of the complaint did not support the suggested revenge motive ([32]-[37]). It also observed that the complainant’s account included details favourable to Doyle, including that he was not aggressive before the punch and apologised afterwards ([35]).
The Court considered Mr Samson’s evidence with care. It accepted that he did not recall the complainant telling him she had been punched, but noted his evidence that she was crying and upset, had no dentures in, and that a woman later brought something wrapped in tissue. The Court said this evidence was capable of corroborating aspects of the complainant’s account. It also noted that Mr Samson’s recollection was not straightforward, including his statement that reminders might jog his memory ([38]-[44]). The Court did not say that his evidence independently proved the assault. Its significance was that parts of it were consistent with the complainant’s account.
The absence of a significant observed injury was another challenge. The Court accepted that the complainant described a punch that spun her around and that police and Mr Samson did not observe an injury. It nevertheless agreed with the primary judge that the force described did not necessarily imply a major injury, and that a minor injury was not inconsistent with her account ([45]-[47]). This was a contextual assessment of the evidence, not a general rule about what injuries must follow from a punch.
The Court also worked through specific alleged inconsistencies. It considered the complainant’s different accounts of how she landed, the estimated value and number of breaks in her dentures, how she left Doyle’s home, where she was picked up, the timing of the incident, the delay before police were contacted, and the distance between the homes ([50]-[64]). It concluded that the matters were either not significant to the central issue, not substantially explored in cross-examination, or had an explanation consistent with the rest of the evidence. For example, the uncertainty about when the incident happened was not decisive in a case where the relevant charge particulars covered a period and the central dispute concerned how the dentures were broken ([60]).
The allegedly “bizarre” sequence of events was also not enough to undermine the complainant’s reliability. The Court considered her account that Doyle was not initially aggressive, punched her, apologised, and later threw objects as she left. It regarded that sequence as capable of being understood in the context of the relationship and the events she described. It also noted that the body-worn camera footage showed hostility towards the complainant, which it considered supportive of her evidence that Doyle became hostile ([65]-[69]).
Finally, the Court dealt with Doyle’s denial. It noted that he had denied the allegations to police and that the denial was described as a “flat denial” ([70]-[71]). The denial did not set out an alternative account of events and was not tested through evidence. The Court agreed that whether such a denial could be accepted depended on the other evidence, particularly the complainant’s evidence ([72]). Given the magistrate’s opportunity to assess her as a witness, the Court held that it was open to rely on her account beyond reasonable doubt despite the denial ([73]).
The judgment does not present itself as creating a new general rule about witness credibility. It applies existing appellate principles to a particular criminal appeal. Before this decision, the cited framework distinguished a rehearing appeal from an appeal asserting an unreasonable verdict. As recounted through Alexander v Bakes, a rehearing involves a real review of the evidence and reasons, while recognising the advantage of the decision-maker who saw and heard the witnesses. Success generally requires material error, which may be legal, factual or discretionary ([24]-[25]).
The judgment also explains that an unreasonable finding can be a species of factual error, but it is not the only basis on which an appeal by way of rehearing can succeed ([25]). This distinction matters to the way the grounds are analysed: the Court did not treat the question simply as whether it would have reached the same factual conclusion. It asked whether the appellant had established material error in the decisions under review.
After the decision, the source supports a case-specific illustration of how that framework was applied. Alleged inconsistencies and credibility concerns were considered cumulatively and in context. The Court found that the matters raised did not establish that the magistrate could not accept the complainant’s account. It also treated a bare denial as something to assess against the other evidence, not as an alternative account that automatically created a competing factual version ([48]-[73]).
The judgment should not be read as establishing that a complainant’s evidence can always be accepted despite inconsistencies, or that a defendant’s denial is generally insufficient. The Court’s conclusions depended on this evidence, the way the issues were explored, and the magistrate’s opportunity to assess the witnesses.
At [24], the Court set out the applicable appeal framework by referring to Alexander v Bakes. A rehearing appeal generally requires material error, which may be legal, factual or discretionary. In plain English, the Court was not required to overturn the result merely because Doyle disputed the factual findings. It had to identify an error of the kind that mattered to the result.
At [25], the Court referred to the disadvantage an appellate court faces when assessing credibility from a record. In plain English, an appeal court can examine the evidence and reasons, but it was not present to observe how witnesses gave their evidence. That difference may be relevant when a challenge turns on how a witness appeared or responded.
At [37], the Court concluded that the alleged motive to lie did not significantly detract from the complainant’s credibility in the circumstances established by the evidence. This was not a finding that motive is irrelevant. Rather, the Court considered the suggested motive against the detail and circumstances of the complaint in this particular case.
At [44], the Court said that aspects of Mr Samson’s evidence were corroborative of the complainant’s account. In plain English, although he did not recall being told about a punch, his observations of her distress, missing dentures and the later arrival of a woman with a wrapped item were consistent with parts of her account.
At [68], the Court said the described chronology was “not at all incredible” and did not demonstrate that the complainant was unreliable. It considered the alleged sequence of a punch, apology and later anger as a plausible account in context, rather than treating it as impossible or inherently unbelievable.
At [72], the Court said: “The issue comes back to whether the complainant’s evidence may be accepted beyond reasonable doubt.” In plain English, because Doyle’s denial did not provide a developed alternative account, the decision still turned on whether the magistrate could accept the prosecution evidence to the criminal standard.
At [74], the Court stated that Doyle had not established any material legal, factual or discretionary error by the magistrate or primary judge. That was the central reason the appeal failed.
The judgment is most directly relevant to appellate challenges to criminal findings where the appeal is by way of rehearing and the appellant disputes the factual assessment of a witness. It illustrates how a court may examine a series of credibility arguments, including motive to fabricate, delay in reporting, inconsistencies, limited corroboration and absence of observed injury, without treating any single feature as automatically determinative ([31]-[69]).
It is also relevant where a defendant relies on a denial that does not set out a competing version of events. The Court’s reasoning at [70]-[73] shows that, in this case, the bare denial was assessed against the rest of the evidence and did not itself displace the complainant’s account.
The decision’s usefulness is limited by its fact-specific nature. The Court emphasised the context of the evidence, the extent to which particular inconsistencies were explored, and the magistrate’s opportunity to see and hear witnesses. It does not establish that the same factors will have the same significance in another case. Nor does it decide that uncorroborated evidence is necessarily sufficient or insufficient.
The appeal also arose from convictions involving a family violence order, assault and property damage. The Court’s core analysis, however, focused on the challenge to the factual findings and witness evidence, not on a general interpretation of the statutory elements of those offences.
The supplied judgment contains no decisions of later courts applying, distinguishing or otherwise treating Doyle v Hayes after this decision. It therefore does not support a conclusion about the case’s subsequent precedential treatment.
The judgment itself discusses Alexander v Bakes, which it uses for the distinction between a rehearing appeal and an appeal on the ground of an unreasonable verdict ([24]-[25]). It also refers to authorities identified within the discussion of appellate review, including Allesch v Maunz, Fox v Percy, Warren v Coombes, Lee v Lee, M v The Queen, Dansie v The Queen and Lang v The Queen ([24]-[25]). Those authorities form part of the framework recounted in the judgment; the supplied text does not establish how later courts have treated the present decision.
The judgment also refers to R v Murray and Liberato v The Queen as labels for the credibility and denial arguments advanced in the earlier proceedings. The Court’s analysis principally applies the appeal framework and assesses the evidence in this case; it does not set out a broad new formulation of either named authority ([30], [70]-[73]).
The supplied judgment leaves open how the same appeal principles would apply where the challenge identifies a specific legal error, a material factual mistake unrelated to witness credibility, or a discretionary error. The Court states that those kinds of error can support an appeal by way of rehearing, but the appeal before it did not require the Court to decide a distinct example of each ([24]-[25], [74]).
The decision also does not define a general threshold for when inconsistencies become sufficiently significant to undermine a witness’s evidence. Its approach was contextual: some matters were not central, some were not substantially explored in cross-examination, and some were consistent with the broader evidence ([48]-[64]). The judgment does not turn that analysis into a universal checklist.
Nor does it decide what weight a bare denial should receive in cases where the denial is given on oath, is tested in cross-examination, or is accompanied by a detailed alternative account. The Court’s conclusion concerned a denial that did not put forward such an account ([70]-[73]).
Finally, the decision does not resolve how different kinds of corroborative evidence should be weighed in other cases. Here, the Court identified evidence of distress, missing dentures, the returned item, the police disclosure and body-worn camera footage as relevant to its assessment. The weight and significance of such evidence will depend on the record in each case.
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Doyle (a pseudonym) v Hayes Citation: [2025] ACTCA 51 Hearing Date: 19 August 2024 Decision Date: 3 December 2025 Before: Loukas-Karlsson and Taylor JJ, Ainslie-Wallace AJ Decision: (1) The appeal is dismissed.
Catchwords: APPEAL – CRIMINAL LAW – Appeal against order of primary judge affirming convictions made in the Magistrates Court – aggravated common assault – breach family violence order – damage property – primary judge dismissed appeal against convictions by the magistrate – whether decision of the primary judge upholding convictions was unreasonable and could not be supported by the evidence – evidence of complainant was reliable and capable of supporting conviction – defendant’s bare denials provided no plausible alternative to complainant’s evidence – no error in reasoning of primary judge – appeal dismissed Legislation Cited: Crimes Act 1900 (ACT) ss 26(2), 116(3) Family Violence Act 2016 (ACT) s 43(2) Supreme Court Act 1933 (ACT) s 37O Magistrates Court Act 1930 (ACT) s 208 Cases Cited: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 Allesch v Maunz [2000] HCA 40; 203 CLR 172 Doyle (a pseudonym) v Hayes [2024] ACTSC 26 Liberato v The Queen [1985] HCA 66; 159 CLR 507 R v Murray (1987) 11 NSWLR 12 Parties: Scott Doyle (a pseudonym) (Appellant) ACT Director of Public Prosecutions (Respondent) Representation: Counsel Self-represented (Appellant) K McCann (Respondent) Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 2 of 2024 Decision Under Appeal: Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 9 February 2024 Case Title: Doyle (a pseudonym) v Hayes Citation: [2024] ACTSC 26 Court File Number: SCA 44 of 2023 THE COURT Introduction
By Notice of Appeal filed on 22 February 2024, Scott Doyle appeals to this Court from an order of a judge of the Supreme Court on 9 February 2024 (Doyle (a pseudonym) v Hayes [2024] ACTSC 26 (primary judgment)).
The primary judge dismissed the appeal against convictions imposed by a magistrate on 27 July 2023 on the following three charges: (a) Contravention of a family violence order between 2 January 2023 and 16 January 2023 (CAN 819/2023) contrary to s 43(2) of the Family Violence Act 2016 (ACT) carrying a maximum penalty of 500 penalty units, imprisonment for 5 years, or both; (b) Aggravated common assault between 2 January 2023 and 16 January 2023 (CAN 820/2023) contrary to s 26(2) of the Crimes Act 1900 (ACT) carrying a maximum penalty of 3 years imprisonment; and (c) Causing damage to property not exceeding $5,000 between 2 January 2023 and 16 January 2023 (CAN 821/2023) contrary to s 116(3) of the Crimes Act carrying a maximum penalty of 60 penalty units, imprisonment for 3 years, or both.
For the reasons that follow the appeal to this Court should be dismissed.
The appeal to the Supreme Court
On 24 August 2023, the appellant filed a notice of appeal to the Supreme Court contending that the magistrate’s findings were unreasonable and cannot be supported, having regard to the evidence. That appeal was heard and dismissed by the primary judge on 9 February 2024 (primary judgment). The appeal brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT) was by way of a rehearing (Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 (Alexander)).
With respect to the nature of the appeal before him, the primary judge observed at [100]- [102]: 100. Although the ground of appeal was formulated by reference to unreasonableness, the submissions were developed by reference to simply establishing a factual error in relation to the ultimate conclusion that the occurrence of the events had been proved beyond reasonable doubt. As pointed out by Baker J in Ji v Stone [2023] ACTSC 54 at [153]-[154] and Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 at [37], in most cases there is little difference in the practical outcome of either formulation. Both require a real review of the evidence, and both require regard to be had to the advantage of the finder of fact in seeing and hearing the witnesses give evidence. So far as the advantage of the trial judge is concerned, that was articulated by McCallum CJ in Garay v The Queen (No 3) [2023] ACTCA 2 at [31]: 31. Whatever differences exist between trial by jury and trial by judge alone, the advantage of being immersed in the atmosphere of the trial is one thing they undoubtedly have in common; an advantage not shared by the appellate court. The assessment of credibility involves more than a lawyerly analysis of the words on the page of a transcript. The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness. 101. In the present case, the submissions were ultimately developed by reference to the approach to be taken on a rehearing, with the appellant placing emphasis on the statements in Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] that emphasis should be placed upon “contemporary materials, objectively established facts and the apparent logic of events” and to “limit … reliance upon the appearances of witnesses”. However, those statements occurred in a context which recognised the significance of credibility findings as a limitation upon appellate review: see [28]-[29]. 102. Insofar as the appellant departed from the ground of appeal by asserting an unreasonable verdict and relied upon an error in finding the offence proved beyond reasonable doubt, there was no objection from the respondent to that course.
Consideration: the Murray point
(1) Motive to lie
It was asserted before the magistrate and on appeal before the primary judge that the complainant’s account of being punched by the appellant was a lie told as revenge against the appellant with whom her relationship had ended because she discovered he was being unfaithful to her. The magistrate acknowledged that “[C]ommon sense and life experience would tell the court that infidelity is a strong motive to lie”, though ultimately rejected that the complainant had fabricated the allegation against the appellant.
The appellant reiterated in argument before this Court the significance of the influence on the complainant’s evidence of her belief that he had been unfaithful.
The primary judge concluded that a motive to lie, said to be revenge for the appellant’s infidelity, was less plausible in view of the detail and circumstances of the making of the complaint, than a motive to lie to hide infidelity. There was significant strength in this analysis in the circumstances of this case.
Not only did the complainant effectively deny that she had concocted that allegation to punish the appellant, but the circumstances of the complaint did not support it. Both the detail and the circumstances of the complaint told against it being motivated by an attempt to seek revenge against the appellant. As the primary judge noted the complainant disclosed the allegation indirectly to a police officer while waiting to be interviewed after a period had elapsed since the incident occurred. The complaint included details which were in the appellant’s favour such as him not being particularly aggressive in the lead up to the assault and that he immediately apologised to her with an offer to pay for the broken dentures. The complainant seemingly readily accepted that the appellant’s infidelity had caused her considerable upset and that she had struggled to process it. But nowhere in her evidence did she appear to take the opportunity, consistent with a vengeful motivation, to enhance the seriousness of the behaviour she alleged against the appellant.
Significantly, aspects of the complainant’s version of events with respect to the assault found support in other evidence. The existence of corroborative evidence tended away from the complainant concocting the allegation as revenge and supported her version being an accurate narrative of what had occurred between them.
In the circumstances established by the evidence it was open to the magistrate and to the primary judge to determine that a motive to lie in this case was not a matter which significantly detracted from the complainant’s credibility.
(2) Evidence of Mr Samson
When the complainant arrived home and spoke to Mr Samson she said that she told him about the argument with the appellant and that the appellant had punched her breaking her dentures. However, in his evidence, Mr Samson recalled the complainant only talking about the argument. Mr Samson observed the complainant to be upset and crying when she came into the house. He also said that she was not wearing her dentures when she arrived home and that “some girl” arrived shortly afterwards with the complainant’s broken dentures wrapped in tissue paper.
A review of Mr Samson’s evidence revealed that he was not a straightforward witness. The magistrate had the opportunity to observe Mr Samson as he gave his evidence and determined that there were aspects of this evidence upon which he could rely.
The primary judge was required to pay regard to the necessary advantage enjoyed by the magistrate in seeing and hearing Mr Samson give his evidence and, having done so concluded it was open to the magistrate to rely on his evidence to the extent that he did. Whilst Mr Samson did not say that the complainant told him she had been struck or that her dentures had been broken, he did give evidence that she was upset and crying when she walked in the door and he was definitive that she was not wearing her dentures.
Mr Samson’s assertion that he would have recalled being told by the complainant that she had been punched by the appellant fell to be assessed against the background of his evidence that if he were reminded of things he had included in his statement it might “jog [his] memory”.
The appellant’s submission on the effect of Mr Samson’s evidence about an earlier occasion when he had seen the complainant glueing her dentures back together invited a connection with the ‘revenge’ motive to lie. The suggestion being, perhaps, that it was consistent with the complainant having thrown her dentures in response to discovering the appellant’s infidelity and broken them herself. First, it was not put to the complainant that after this incident whilst in Mr Samson’s company she had glued her dentures back together. Secondly and more significantly Mr Samson’s evidence was that the occasion when he had seen the complainant glueing her dentures back together occurred before the incident he was describing when the complainant came back upset without her dentures.
We observe here that Mr Samson’s evidence that he did not observe any injury to the complainant was not entirely inconsistent with the nature and extent of the injury that she described.
Despite the absence from Mr Samson’s version of an allegation from the complainant that the appellant had struck her in the mouth, there was no basis to reject his evidence as to his observations about the complainant’s upset and that she did not have her dentures in and a “girl” coming to the front door with her dentures. This evidence was corroborative of the complainant’s account and it was open to the magistrate to treat it as such.
(3) Absence of injury
It was contended that the complainant’s account of how she was punched by the appellant was inconsistent with there being no visible injury to or around her mouth. The primary judge noted that the appellant submitted that the absence of significant injury to the complainant’s mouth was inconsistent with a punch “thrown with such significant force at the centre of the complainant’s mouth that it caused her to spin around and land on the floor” and was a matter which substantially undermined her credibility.
The primary judge observed that the complainant herself was somewhat surprised that there was no injury although did say that her lip was split. Mr Samson’s evidence was that he did not observe any injuries to the complainant.
The analysis of the primary judge included a close review of the complainant’s evidence with respect to this aspect of the case including that the complainant described the blow as a “good punch” with force that “spun her around”. The conclusion that this evidence was not necessarily indicative of a blow of significant force and that it was possible that the complainant’s body spun around with the movement of the blow was correct. That there may be many consequences of a punch to the face, ranging from trivial to catastrophic as the primary judge observed, is uncontroversial. A minor injury in the circumstances described by the complainant was not inconsistent with her account about the conduct of the appellant.
(4) Inconsistencies
There were several inconsistencies in the complainant’s account asserted by the appellant to demonstrate that her evidence was not capable of acceptance beyond reasonable doubt. After careful consideration of each inconsistency the primary judge concluded that it was open to the magistrate to find that he could nonetheless rely on the complainant.
Whilst not precisely recounted in his submissions to this Court we apprehend that the appellant sought to draw to this Court’s attention those same issues as well as other inconsistencies in the matters he highlighted. We deal with each in turn:
(i) The evidence as to how she landed after the blow caused her to fall
(ii) The value of the dentures
(iii) The departure of the complainant from the residence after the assault
In her FVEIC the complainant told police: And I basically just pretty much ran out the door. As that happened [the appellant] said I’m so sorry, I’m sorry, I will pay for a new pair and I didn’t pick my teeth up or bring them with me or anything, I ran straight home.
In court she said: And you told police in your recorded statement with them that he tried to stop you?---It was kind of, like a shuffle, side-to-side, and he was just saying, ‘I’m sorry’, and, ‘I was just distressed’, and just – I didn’t run out of the house but I – I went out of the house crying and continued across the next door neighbour’s lawn crying and into my own house.
It was not suggested to the complainant in cross-examination that she had said something different to police about her departure from the residence after the assault she alleged from that which she described in her evidence before the magistrate. The effect of her evidence was that the complainant sought to leave immediately after the assault.
The absence from cross-examination of any challenge to the consistency of her version of events with respect this issue was reflective of the significance of it to the facts in issue. It was not a matter which went at all to the substance of the allegation. The account to police that she “pretty much” ran from the residence leaves open that the evidence she gave before the magistrate about what happened as the left the residence was by way of clarification.
(iv) The number of “breaks” in the broken dentures
The complainant did not keep or photograph the broken dentures. In the FVEIC she said the dentures broke in two places. As the primary judge noted she then went on to give a demonstration of sorts which was not apparent in the transcript of the interview and the audio of the interview did not make immediately clear.
In court the complainant said she “believed” they were broken in “three or four places”. She said the dentures were handed to her in a tissue and that they were “definitely broken more than in one place”. This matter was not explored in any further detail. On her evidence the dentures were broken in more than one place, and this was not ever challenged. This was not a matter which took on any real significance in circumstances where the fact in issue before the magistrate was not whether the dentures were broken, but rather how it was they came to break.
(v) The residence that the appellant picked up the complainant from
First Constable Carson said in evidence that the complainant reported to him that the appellant had picked her up from her own residence. In the FVEIC interview the complainant said that she was picked up from a girlfriend’s residence. Consistent with the FVEIC, in court the complainant repeated that she had been picked up from the home of a girlfriend. In cross-examination, she denied that she told police that the appellant had picked her up from her own home.
The evidence established that the appellant and the complainant lived in close proximity with a direct line of sight between the two residences. The version of the complainant that she was picked up from the residence of a friend, seems the more likely account in circumstances where she and the appellant lived within short walking distance. As the primary judge noted, that First Constable Carson may have misunderstood the complainant was not impossible; her version aligned with what the evidence otherwise established and was the version the complainant had herself consistently maintained.
(vi) Timing of the incident
(vii) Delay in the complaint and police evidence
The appellant submitted to this Court that there was no evidence “whatsoever” adduced from police involved in the case. This was inaccurate as two police witnesses were called to give evidence before the magistrate and body worn camera footage which captured police dealings with the appellant was adduced.
There was a delay in the making of a complaint to police. The complainant was asked why she did not make an immediate complaint to police about the appellant’s conduct and she explained that she was upset and after the incident, she returned home and took her medication (the complainant gave evidence that she suffers from schizophrenia and bi-polar disorder). She described the relaxing effect of her medication and that she knew that it would “put [her] straight to sleep”. The magistrate noted that there are many reasons why a complainant may not make a full complaint after they have been a victim of family violence and observed: … the court needs to warn itself carefully about what it gives or what weight it gives to an absence of a full complaint in circumstances where a partial complaint is given, particularly to another male, about what had occurred.
This analysis reflected that the magistrate accepted the complainant’s evidence that she told Mr Samson about an argument with the appellant. It also reflected that she did give some explanation for why she did not make a contemporaneous complaint to police. First Constable Carson also described the circumstance in which the complainant came to indirectly disclose the incident which included that she presented, when talking about the incident, with “a bit of a trauma response” where she had “shut down and couldn’t really communicate very well anymore”. In the circumstances established by the evidence it was well open to the magistrate to consider that any delay in the making of the complaint did not operate to undermine the complainant’s credibility noting the advantage he had in hearing the complainant’s explanation directly and the observation made by police to whom she did eventually disclose.
(viii) The distance to the appellant’s residence from the complainant’s evidence
In her FVEIC the complainant told police that she lived “one door away” from the appellant. In evidence she said the distance from the appellant’s house to her house was “about 800 m” and that it took “about five seconds” to walk the distance. Police evidence estimated each residence could be seen from the other and were 150m apart. The complainant’s evidence, which was not challenged, was that she left the appellant’s house and “went out of the house crying and continued across the next door neighbour’s lawn crying and into my own house”. The primary judge observed that the reference to 800m may have been an error in the transcription after setting out the evidence which went to the distance between their homes and which supported that they lived very close to each other. As the primary judge noted the issue was not substantially explored in cross examination and accordingly did not undermine the complainant’s reliability or credibility to any extent. (5) Bizarre nature of the complainant’s evidence
The complainant gave evidence that up until he punched her, the appellant had not been in an aggressive mood nor was he “cranky” after he had hit her. She also said that as she was leaving his house, he threw a cat carrier at her. Before the primary judge this evidence was characterised as being “so bizarre that it cannot be accepted without some degree of corroboration”.
As the primary judge accurately identified this evidence fell to be assessed by reference to the nature of the relationship between the appellant and the complainant. The complainant described an argument in which she called the appellant a liar, which led him to strike her. The complainant said the appellant then apologised to her when she said she was going to leave. She he began to throw things at her when she made plain by her actions that she was, in fact, leaving.
The absence of outward signs of aggression before the strike to the complainant does not undermine the fact of its occurrence. Significantly, the appellant’s conduct captured in the body worn camera footage which included hostility and abuse toward the complainant was supportive of her evidence that he became hostile and abusive to her. Like the primary judge we observe that the magistrate had the advantage of seeing that footage and assessing the presentation of the appellant.
The so called “bizarre” evidence was consistent with the appellant acting impulsively in response to the complainant’s allegation that he was lying by striking her, realising that he was wrong to strike her and apologising in the hope that it would placate her, and then when it was clear that she would not be placated, becoming angry at her determination to leave. This chronology was not at all incredible and did not demonstrate the complainant to be an unreliable witness.
The primary judge was right to conclude that the ‘inconsistencies’ identified by the appellant were neither individually nor collectively matters of any significance to a determination of the facts in issue. They were not matters the subject of cross examination to any substantial degree. They were all matters which the magistrate was well placed to assess and consider in the conduct of the hearing with the advantage of his position.
Consideration: the Liberato point
The appellant was arrested on 19 January 2023, denied the offences to police and said that the complainant was “full of shit”. The appellant’s denial came about after a brief interaction with police and after the police cautioned him. The appellant as we have already noted presented as aggressive in his interactions with police and invoked disrespectful language in reference to the complainant.
The appellant highlighted that he had made consistent and adamant denials. It was in this context that he submitted to the primary judge that it was not open to the magistrate to find that he was not telling the truth when he denied the conduct relied upon to establish the charges and thus his denial could not be rejected in order to find the prosecution case proved. The magistrate observed that the appellant made a “simple flat denial” and found that it was not possible to conclude that the appellant was telling, or was possibly telling, the truth.
The primary judge accurately observed that the appellant’s denial did not put forward an alternative version of events. The denial was not tested and whether it could be accepted fell to be assessed by reference to other evidence in the case. The primary judge acknowledged that the “issue comes back to whether the complainant’s evidence may be accepted beyond reasonable doubt”. That reasoning was correct.
In our view the primary judge was correct to conclude that in circumstances where the magistrate had the benefit of assessing the complainant as she gave evidence before him, it was open to find that her evidence could be relied upon beyond reasonable doubt in the face of the “flat denial” by the appellant.
Conclusion
A review of the whole of the evidence demonstrated that the primary judge correctly found that the verdict of the magistrate was not unreasonable or unable to be supported by the evidence. The appellant has not established any material legal, factual or discretionary error on the part of the magistrate or the primary judge. The primary judge was right to confirm the convictions imposed by the magistrate.
For those reasons the appeal must be dismissed.
Orders
Doyle (a pseudonym)
Hayes [2025] ACTCA 51
(1987) 11 NSWLR 12
(2000) 203 CLR 172
(1979) 142 CLR 531
(1994) 181 CLR 487
(2022) 274 CLR 651
(2023) 97 ALJR 758
(2003) 214 CLR 118
The appeal was dismissed. The Court held that the appellant had not established material legal, factual or discretionary error by the magistrate or the primary judge, and the convictions were confirmed: [74]-[76].
In dismissing the appeal, the primary judge concluded at [126]-[127]: 126. Whether the ground of appeal is that asserting an unreasonable verdict, or simply a factual error on the part of the magistrate in finding the facts put forward by the prosecution to have been proved beyond reasonable doubt, I am satisfied that neither ground is made out. 127. Having reviewed the whole of the evidence and the magistrate’s reasons for judgment, and respecting the advantage that the magistrate enjoyed, I am not satisfied that the magistrate erred in accepting the complainant’s allegations beyond reasonable doubt. It follows that I consider that, upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty.
In the appeal before the primary judge, the appellant focussed on two aspects of the case before the learned magistrate. First, the credibility of the complainant which was referred to as “the Murray Point” (R v Murray (1987) 11 NSWLR 12) and secondly, the effect of the appellant’s denials of the act constituting the offences, which was referred to as “the Liberato Point” (Liberato v The Queen [1985] HCA 66; 159 CLR 507). The appellant submitted to the primary judge that the magistrate had erred in finding the events the subject of the charges proved beyond reasonable doubt in the light of the effect of these two issues.
It is useful to set out the summary by the primary judge (at [3]-[83]) of the evidence before the magistrate, the accuracy of which was not challenged by the appellant in this appeal: 3. The prosecution called four witnesses: the complainant, the man at her house to whom she made a complaint (Mr Samson) and two police officers. 4. The complainant gave evidence by way of a Family Violence Evidence in Chief (FVEIC) interview, supplemented by additional evidence-in-chief and cross examination. 5. She gave evidence that she had been in a relationship for seven or eight years with the appellant. He lived one door away from her. She said she was “[a]bsolutely not” still in a relationship with him. She recalled making a complaint to a police officer and giving a FVEIC interview at her house the day after making that complaint. She said she did not give an FVEIC interview on the first occasion because “it became too much the first day”, and she was “overwhelmed and confused and not able to really answer things properly”. 6. In the FVEIC interview, she indicated that she was 50 years old and that she suffered from bipolar disorder and schizophrenia. She took medication for those conditions, as well as antidepressants. 7. She indicated that she did not have any dentures in her mouth when giving the FVEIC interview, and that her speech may be affected. (Her speech in the audio of the interview is consistent with her not having dentures at the time.) 8. She said that she had been picked up by the appellant at 5:00am from a girlfriend’s house. She and the appellant went back to his house, and they got into a disagreement about another female being at his house before he had picked her up. She said she had been in his hallway when he approached her and punched her “right in the middle” of her mouth. She said she fell to the ground and her dentures fell out, as they were broken in “a couple of places”. She said, “I basically just pretty much ran out the door”. She said the appellant said he was sorry, and that he would pay for a new pair of dentures. She said she did not pick up her dentures or bring them with her or anything, she ran straight home. 9. She was then asked to elaborate on various aspects of her description of events. She said that the appellant had been caught out in a lie about having another woman at his house. The complainant said she was quite upset by this. She said that the time from 5:00am until 8:00am went “really quick”, that the appellant was doing his own thing during this time, and that he was not in an aggressive mood at all. She said he was making light about it. She said, “and then all of a sudden out of nowhere he has just punched me in the face”. She said he “wasn’t cranky” when he hit her, or after he hit her. 10. She said that the incident occurred between 8:00am and 8:30am. She was asked how many days previously it had occurred and said, “Last Sunday?” And then said, “Saturday or Sunday”. 11. She was asked about being hit and she said: He said I was being too loud. Like making too much noise because we were arguing and he didn’t want the neighbours to hear and I, I just must have went to the toilet and our houses are identical so I went to his toilet down the hallway. As I came out, I guess, I think I was calling him a liar and stuff like that and he punched me when I was in the hallway, yeah. 12. She was asked about the punch and said: I just remembered it was within arms reach he didn’t come aggressively towards me or anything we were both already standing in the position when he just punched me out of nowhere. It was just a complete shock. … It was fist, hard punch like he was trying to hurt me, I guess. It certainly was yeah, it wasn’t a tap or anything, it was a good punch to the face. 13. She said that she was not being aggressive at the time. She described her fall to the ground as “[g]etting punched and turning around and falling down on the hallway floor and then, yeah, that was all that happened.” 14. She was asked, “How did you land on the floor?” And said, “I can’t remember”. 15. She said she realised her dentures had been broken because she saw them broken on the floor. She was asked how they were broken and said, “Through the whole thing because the dentures they go up into the roof of your mouth cut down like that and through the middle.” At this point, she was clearly demonstrating something to the police officers conducting the FVEIC interview, although the audio does not make clear what. 16. She was asked how much the dentures were worth and said, “A couple of -thousands. A couple of hundreds.” She explained that she got them through “the government dentist because my name came up on the waiting list”. 17. She then said that when she got home, her friend, Mr Samson, was sitting in the house. She walked in and told him what had happened. She said she told him that the appellant had punched her in the face and broken her dentures. She said she just sat there upset and crying and that she had been crying before she walked in the front door. A couple of minutes after she got home, someone she identified as “Jackson’s sister” knocked on the door and came in with the broken dentures wrapped in tissue paper. The complainant threw them out without taking any pictures of them. 18. The complainant said that she had a split lip which was “a little bit sore obviously for a little bit”, but she did not take anything for it. She told police that the injury had since healed. 19. She then gave some evidence that was admitted as context evidence as to past violence in the relationship with the appellant and having been punched by the appellant before. 20. She was asked to describe how she ran out of the appellant’s house. She said “he kind of tried to stop me going side-to-side … he was just trying to keep me there saying, I’m sorry, I’m sorry, I’m sorry. Like, I will pay for you to get your new teeth.” She got past him and ran home. 21. She appeared to describe him having tossed a “cat carrier” at her as she left the property. 22. She was asked some questions about Mr Samson and about Jackson’s sister. Jackson was the appellant’s nephew. She described Jackson’s sister as someone who had been “down for Christmas and the Holidays”. (There was some discussion during the course of the proceedings as to whether the words used were “Christmas for the holidays” but the issue was not resolved.) She said that Jackson’s sister had been nice to her but was not in her house for more than a minute. 23. The police interviewing the complainant then returned to the question of when the incident had happened. At this point, the complainant said that the incident occurred on either Tuesday or Wednesday morning, because she knew that it was payday of the woman who she and the appellant were arguing about, and that the woman gets paid on a Tuesday. The complainant ultimately settled on the incident occurring on a Tuesday morning. 24. Police again asked her about the items that were being thrown by the appellant as she was leaving. She explained that she still had belongings at his house. She said that when the appellant was throwing things, he did not say anything. 25. After the playing of the FVEIC interview, the complainant was asked some additional questions in examination in chief. She clarified that after being picked up at 5:00am, it was only a four-minute drive back to the appellant’s house. She said she was there until 8:00am and that it was more her being upset and crying. She said that while there was an argument, it had not escalated to yelling or anything vicious. “It was just, yes, just being upset more so than arguing.” 26. She was then shown a plan of the house and marked the position where she was, just outside the bathroom, when she was struck and the position where the appellant was when he struck her. She was asked which part of her body she fell on and said “I’m pretty sure I just fell face first. Facing, and I landed facing down towards the laundry, not towards the lounge room.” She was asked which direction she had been facing before he struck her and said that she was facing “towards the lounge room and he was facing down towards the laundry”. 27. She described the punch again, saying, “I think I came out of the toilet and as – as the statement said, I think I was just saying he’s lying and it was just out of the blue. It was within arm’s reach.” She was asked about how she fell and said, “It kind of spun me around, just straight down.” 28. She marked on the plan where she exited the house. 29. She was asked again about how the appellant had tried to stop her leaving the house and said: It was kind of, like a shuffle, side-to-side, and he was just saying, ‘I’m sorry’, and, ‘I was just distressed’, and just – I didn’t run out of the house but I – I went out of the house crying and continued across the next door neighbour’s lawn crying and into my own house. 30. She was asked how far his place was from hers and said, “About 800 metres I would say”, but when asked how long it took to get back to her place she said, “It takes about 5 seconds”. She said she “[i]nstantly” told Mr Samson what had happened. 31. She was then asked about the injury and described it as an injury to “that little piece of skin in the middle of your top lip”, which was split. She was asked how long it lasted and said, “It wasn’t long … It wasn’t a very noticeable injury to my surprise”. She said the cut did not bleed. She said police looked at it when they took her statement. 32. She was then asked about her dentures. She said that she heard someone in court say that it was broken in two places, but she believed it was three or four places, “definitely broken more than in one place”. 33. When asked about the replacement of the dentures, she said, “I’ve got my new dentures about three weeks ago, so I went five months with no teeth, and they aren’t cheap. It was about $10,000.” 34. She was asked about the FVO that was in place. Her answer referred to bail conditions, but she said she was not sure about a restraining order as well. 35. She was asked about why she did not complain to police straight away and said that she was too upset and she took her medication which she knew would relax her and put her straight to sleep. She described that when she came back to her place after the incident she had been “[d]istressed, crying, upset”. 36. The cross examination that took place is recorded over seven pages of transcript. She was asked some general questions about her earlier relationship with the appellant. She confirmed that she lived “[o]ne door apart” from the appellant. She agreed that in January 2023, she was still in a relationship with the appellant. She was asked a confusing question which suggested to her that she “hadn’t cause to believe that [the appellant] had been unfaithful towards you, didn’t you?” And answered, “Yes, I knew that the whole, like, years though. Yes.” 37. She agreed with the proposition that she was suspicious by nature, saying, “life wasn’t very kind to me”. She agreed that she suffered from schizophrenia and bipolar disorder, as well as anxiety. She also had a diagnosis of a condition associated with the long-term taking of antipsychotic drugs. She agreed that she found it “harder to deal with difficult situations than other people”. She agreed that she was deeply upset that the appellant had been unfaithful towards her. She agreed that she struggled every day to regulate her emotions. She agreed that she had damaged property at the appellant’s house. 38. She agreed that she had to take her medication, or she would become suicidal. 39. It was suggested to her that she had told police that the appellant had collected her from her own house, but that she later changed her story to say that she was picked up from a girlfriend’s house. She said, “No, it was always he picked me up from a girlfriend’s house”. 40. She agreed that she had told police in the recorded statement that she ran straight out of the appellant’s house. It was suggested to her that she had said that after he hit her he did not want her to leave. She said, “I don’t know if he didn’t want me to leave. He was just saying that he was sorry, he was sorry and he would pay for new teeth.” She agreed that she had told police that the appellant wanted her to keep her voice down so the neighbours did not hear. She also agreed that she had told police that the appellant was throwing belongings after her. 41. She agreed that in January when she spoke to police, she could not tell them how she fell. It was put to her that she had told the court that she had fallen on her face. It was suggested to her that she had made up that memory. She denied that. 42. It was suggested to her that when police told her that they could not see any injuries, she changed her evidence and said that the cut did not bleed. She said that she could not remember the police saying that they did not see any injuries. She agreed that she did not take any photographs of her cut. She was asked questions about whether she reported her injuries to any doctors as follows: And [complainant], you did not go to any doctors to talk about - - -?---I went to a dentist. Yes, I did go to a dentist. [Complainant], you did not see a doctor - - -?---Yes. - - - about any injuries, did you?---Yes, I have seen my GP regarding all of this matter several times. 43. It was suggested that she was not telling the truth, and she said that she was. 44. The following version of events was put to her: that she had found out that the appellant had been unfaithful towards her, she set out to go to his house, let herself into his house, threw her dentures on the floor, and yelled out that she would have the appellant charged. She said none of that was true. 45. She was asked about her disposal of the broken dentures and agreed that she had not taken any pictures of them before throwing them out. 46. She was asked about when the incident had occurred and the fact that she had said it occurred on a Tuesday or Wednesday. She said, “I believe it to be a Tuesday. Tuesday morning.” It was suggested to her that it could have been a Tuesday at the end of last year, that is, 2022. She denied that. 47. It was suggested to her that because she was struggling after she discovered that the appellant had been unfaithful, she had “invented this story about him punching [her] in the mouth”. She said, “Absolutely not. No. Everything I’m saying is the truth. Nothing but the truth.” 48. In re-examination, she was asked about having seen a general practitioner (GP). She said she could not recall exactly when that occurred. She was then excused. 49. The next witness was the complainant’s friend, Mr Gary Samson, who was staying at the complainant’s house at the time. Mr Samson was a reluctant witness, initially refusing to take an oath or affirmation. However, he ultimately took an affirmation. He described himself as a former flatmate and a friend of the complainant. He said that he was visiting the complainant’s place in January. He had been staying there for two nights. He was asleep in the lounge room and woke up to a commotion at the door. He described it as crying. He asked her what was wrong, and she said, “‘[the Appellant] and I have been in an argument’, blah blah blah”. He said she did not describe the specifics of the argument, but he understood she was upset because she was crying. He was asked whether it was possible that she could have gone into specifics and he said that he would “definitely remember that” but then went on to refer to a statement that had been prepared and said, “If you jog my memory, I very well might go, ‘Yeah, that’s right and that’s right’.” 50. As to when this occurred, he said, “I would have said in the afternoon, but obviously it must have been at night, yes”. He said that sometime after that conversation, he realised that the complainant did not have her dentures, and recalled that she had said, “I don’t have my teeth”. 51. He did not see any injuries on her. She did not mention any injuries. 52. He “definitely became aware” of the complainant’s missing dentures when “some girl” came to the door with the complainant’s dentures wrapped up in tissue paper. He did not see the dentures when they were brought over. All he saw was the tissue wrapped around something. He gave some evidence indicating that he had noticed her dentures missing before that from the way her mouth was “drawn in”. 53. After having consoled her, Mr Samson went home. He said that if she had still been agitated, as she was initially, he would not have gone home and left her. 54. The cross examination of Mr Samson extended over two pages of transcript. 55. He was asked about having worked out that she did not have her dentures and said that he had lived with her, and she had taken her dentures out, so he was aware of her not having her dentures in. He was asked about his recollection that she returned either in the afternoon or the night and he said, “Yes, well, night, I presume that … I couldn’t say. I would have said the afternoon myself, but I’m not going to say it wasn’t night, yes.” 56. He was asked about an occasion in March when he had come to court as a friend for the complainant. It was suggested to him that he had said that the complainant had come home approximately four months prior to that. He said that he could not recall saying that to the cross examiner. He said, “I’ve got my own stuff going on in life where, you know, I’m terrible with times and stuff now and just, yes.” 57. He was asked about an incident when he was living with the complainant and saw her gluing her dentures together. He recalled that and said that she had dropped them on the kitchen floor, and they had broken in half, so she glued them back together. 58. In re-examination, he said that the gluing of the dentures occurred at a time when he was living with her, which was before the incident that he described when there had been a commotion at the door. He could not recall how long before. 59. He was asked why he thought it was the afternoon. He said it was because he had been sleeping for some time, and that he had got up to go to the toilet a few times and the sun was out. He said, “I thought it was afternoon but I’m not going to argue it was night. I don’t really – I can’t really remember.” 60. The next witness was Brianna Carson, a First Constable working at the City Police Station. She gave evidence that on 18 January 2023, while attending the Magistrates Court for a preliminary conference with the complainant, the complainant made some disclosures to her. The complainant had said that at 8:00am or 8:30am approximately two weeks prior, she had had an argument with her partner or ex-partner and that she had been punched in the face, which knocked her backwards and broke her dentures. She told First Constable Carson that she went back to her house crying and met her friend, Mr Samson, and, at some later time, the appellant’s niece brought her broken dentures back to her. At the time of making this disclosure, she was quite upset. First Constable Carson went back to the City Police Station with her but when there, the complainant became very distressed and shut down. 61. First Constable Carson had started going through some safety planning documentation with the complainant when the complainant had “a bit of a trauma response” where she “kind of just shut down and couldn’t really communicate very well any more”. First Constable Carson described the complainant as being distracted and disengaged from the conversation. At the time, the complainant had been talking about the alleged offences and also other historical matters. 62. First Constable Carson arranged for a team to go out and visit the complainant at her house the next day. 63. In cross examination, First Constable Carson was asked about the historical matters that were being discussed, and she said that it was historical matters with the appellant and “historical stuff outside of that relationship”. 64. She was asked about a statement that she had made on 17 February 2023, and she agreed that her recollection of events was better back then. She was referred to her statement in which she had recorded that the appellant had attended the complainant’s address to pick her up and First Constable Carson said, “Yes, that’s what she informed me”. 65. She was also referred to the statement in which she recorded that the complainant had said that the appellant punched her in the mouth so hard that she broke her dentures and it knocked her backwards. First Constable Carson agreed that that is what the complainant had informed her. 66. She agreed that she did not observe any injuries on the complainant, although she did observe that the complainant did not have any dentures. 67. The next witness was Constable Jordan Hayes, who was attached to the Tuggeranong Police Station. On 19 January 2023, he was rostered to work with a Constable Jarvis. They were requested to attend the complainant’s home and speak to her in relation to the allegation of assault. 68. He attended the premises at 7:03pm that day. The complainant told him that, about a week prior, she had been at the appellant’s residence. They got into an argument where she had accused him of lying. She had then gone to the toilet. After leaving the toilet, the appellant confronted her in the hallway. He had punched her in the face, causing her dentures to fall out and be broken. She immediately fled the premises. 69. He observed that when speaking to her there were no dentures in her mouth. She was only mildly distressed when speaking about the matter. The appellant’s address was about 150 m away, with an almost direct line of sight between the two dwellings. 70. He examined her gums, which she described as having sustained an injury, but did not observe any injury or markings that could be an injury. 71. He subsequently conducted checks of police indices which showed that the appellant was subject to a special interim FVO. He identified an affidavit of service of that order and a timing notice from the Magistrates Court, both of which were tendered. 72. Constable Hayes and Constable Jarvis conducted a FVEIC interview with the complainant from 7:34pm until 7:52pm. 73. After the FVEIC interview, the complainant told him that the appellant would be at the Calwell Pub. Constable Hayes and Constable Jarvis went there and arrived at 8:06pm. They stopped a white ute that the appellant was driving. They did a breath screening test. They then arrested him for family violence offences. Constable Hayes thought that the allegations had been mentioned prior to the arrest but could not recall specifically if it was before or after the appellant was placed under arrest. He did not believe it was mentioned prior to the breath testing. 74. A portion of Constable Jarvis’ body worn camera footage was played back to the court (30 seconds to three minutes and 20 seconds). Constable Hayes gave evidence that identified the very first interaction between the police and the appellant in relation to this matter, and that there had been no discussion with the appellant prior to that. The body worn camera disclosed the appellant saying, “whoa whoa whoa, I know what this is about because [someone else] told me all about it and she’s full of shit mate”. Another portion was then played back (four minutes to five minutes and 13 seconds). The two portions that were played were tendered and became an exhibit. In the second clip, the appellant demonstrates a degree of hostility towards the complainant but denies the allegation of family violence. 75. After the appellant was arrested, he was taken to the ACT Watch House. He was served with the FVEIC interview. 76. Constable Hayes’ evidence was that the additional enquiries indicated that the special interim FVO was still in place. 77. He also obtained a floor plan of the appellant’s house. This was obtained by another officer who obtained it from Housing ACT. A further document was tendered which indicated that the floor plan provided was a mirror image of the layout of the premises, and that is consistent with what he had observed at the premises. 78. In cross-examination, he agreed that his memory of events was better when he prepared a statement on 16 February 2023 than at the time of giving evidence. He agreed that he took notes in his notebook. He agreed that neither the statement nor his notebook recorded any observation of injuries on the complainant. He agreed that the complainant did not give him a date for the assault. He said he was told approximately a week, but no specific date. 79. He agreed that she had said it was either on a Tuesday or Wednesday, but “without any holidays or birthdays either side”. 80. He agreed that the complainant had told him that the appellant’s nephew, Jackson, lived next door. He agreed that Constable Jarvis had left at some stage to speak to the appellant’s nephew. 81. He agreed that Constable Jarvis had cautioned the appellant when the appellant was arrested. He agreed that the appellant had continued to deny any assault had occurred. He agreed that someone called either Jackson or Justin had told him all about what this was about. He agreed that he had not attempted to determine who Jackson or Justin was or take any statement from that person. He agreed that when the appellant was asked for contact information relating to Mr Samson, the appellant had helped with those enquiries by providing a contact number. He agreed that the appellant was quite clear and consistent in his denial that any assault had occurred. 82. There was no re-examination. 83. There was no defence case. The analysis of the primary judge
As to “the Murray Point”, the appellant raised 5 points for consideration by the primary judge which his honour considered as follows at [107]-[119]: 107. First, it was contended that the complainant had a clear motive to lie because a relationship of seven or eight years had collapsed when she had discovered that the appellant was unfaithful. The magistrate appeared to accept this, saying, “Common sense and life experience would tell the court that infidelity is a strong motive to lie …”. Counsel also referred to the evidence that she struggled to regulate her emotions and that she remained deeply upset. 108. Notwithstanding the magistrate’s apparent acceptance of this proposition as a matter of generality, it is not a persuasive factor when one applies it to the present case. It might well be the case that infidelity gives rise to a strong motive to lie. An obvious example might be provided by the circumstances of the appellant who may well have had a motive to keep his infidelity secret from his partner. However, those were not the circumstances in which the complainant found herself. So far as her position was concerned, what was being suggested is not a lie in order to keep infidelity secret but a lie alleging an assault which did not occur, motivated, one must assume, by an intention to get revenge. That is a different and substantially less plausible motive than a lie in order to keep infidelity secret. The proposition that she invented the story because she was struggling after she discovered his infidelity was put to the complainant and denied. 109. Further, the proposition that she was motivated to lie does not sit well with the circumstances in which she made the complaint to police. As the prosecution submitted before the magistrate, the indirect manner in which the complainant disclosed the incident is not consistent with somebody who was motivated by infidelity to seek revenge through a false complaint to police. The possibility of the evidence involving a lie prompted by infidelity needed to be assessed in the context of the details of her complaint, which included much that was unlikely to have been included had it been a concoction motivated by revenge for infidelity. 110. The second point made in the appellant’s submissions is that there was no evidence of any injury “in circumstances where visible injury would be expected”. The submission was that the alleged punch was thrown “with such significant force at the centre of the complainant’s mouth that it caused her to spin around and land on the floor” and caused her dentures to spill out and become split. That was to be contrasted with the absence of any injury. It was submitted that it was curious that, although the complainant claimed her upper lip was split, it did not bleed and neither Mr Samson nor Constable Hayes observed any injuries. It was suggested that it was implausible that she would not have exhibited enduring pain in the presence of Mr Samson. It was submitted that there was an inconsistency between her evidence that the cut to her lip did not last long and was not very noticeable, and her evidence that she had seen a GP regarding “all of this matter several times”. … 116. The third submission related to the evidence of Mr Samson. The submission was that his evidence only disclosed an argument and that there was no mention of any form of assault. That was said to be inconsistent with the complainant’s evidence that she had told him that she had been punched in the face and her dentures had been broken. … 118. The fourth submission was that the complainant’s evidence was “riddled with internal inconsistencies”. Seven such internal inconsistencies were identified. I will address them individually. In summary, to the extent that there were uncertainties or inconsistencies in the complainant’s evidence, they were not in relation to matters of significance or they were not explored in cross-examination in a way which would resolve whether they were significant or not. They were classically matters where the magistrate who heard the evidence would be in a much better position to assess their significance.
His Honour went on to consider each inconsistency before moving to the fifth point advanced by the appellant: 119. The fifth and final submission made by the appellant was that “there are numerous aspects of the complainant’s version of events that are so bizarre as to render her version of events implausible and contrary to common sense”. The matters referred to are the complainant’s evidence that the appellant was not in an aggressive mood but then, all of a sudden following a claim that he was a liar, had punched her. She said that he “wasn’t cranky after he did it even”. The appellant then pointed to the evidence that the complainant gave that he threw objects at her and did not say anything while doing so. The submission was that “this entire sequence of events is so bizarre that it cannot be accepted without some degree of corroboration”.
The primary judge concluded that the matters raised in challenge of the complainant’s evidence, when considered individually or in combination, did not support the conclusion that it was not open to the magistrate to conclude beyond reasonable doubt that the acts alleged by the complainant had occurred (at [121]): 121. The five matters raised by the appellant are matters which were relevant to the assessment of the evidence of the complainant. However, taken individually or collectively they were not such as to indicate that the magistrate erred in reaching a conclusion beyond reasonable doubt that the acts alleged by the complainant had occurred. The version of events given by the complainant involved a plausible narrative consistent with likely behaviour and motivations. The description of the events included details unlikely to have been given if, as the appellant contended, the story was a concoction. It was given, as the magistrate found, without embellishment. The complainant’s version of events included descriptions of the appellant’s behaviour favourable to him: not being aggressive before the incident, apologies and offers of restitution after the incident. It also involved the description of a minor injury which resolved quickly, unlikely to have been given if the incident was a concoction. It also involved surprise at the limited nature of the injuries, once again, details unlikely to have been given unless it reflected the reality. The circumstances in which the complaint was made were also consistent with it being a genuine one, that is, made in passing while in the presence of police. When giving evidence, so far as disclosed in the transcript, the complainant did so in a manner which disclosed matters adverse to her contentions and appeared to answer questions in a straightforward way. Further, there was a degree of corroboration of upset and broken dentures from Mr Sampson. There was also the evidence of the complaint to First Constable Carson, the circumstances in which it was made and the demeanour of the complainant at the time that it was made. It is in that context that the various matters raised by the appellant must be assessed. They are not matters which individually or collectively demonstrate any error on the magistrate’s part.
As to “the Liberato Point”, the primary judge concluded at [123] that it was open to the magistrate to reject the bare denial of the appellant as it was not given on oath, it was unable to be tested, and it did not involve a description of a reasonably plausible version of events. His Honour found at [123]-[125]: 123. It was clearly open to the magistrate to reject the bare denial made by the appellant. It was a denial that was not given on oath and not able to be tested by cross examination. Because it was a bare denial, it did not involve a description of a reasonably plausible alternative version of events. It was a denial which was different to the version of events put to the complainant in cross examination. It was a denial given in terms which demonstrated hostility towards the complainant which was, at the least, consistent with the complainant’s allegations. Because the denial was a bare denial, there was nothing in it which tended to undermine the credibility of the complainant’s allegations 124. When there is no alternative version of events put forward and the denial is not given in circumstances where it could be tested, whether or not it should be rejected will be dependent upon the other evidence in the case, particularly the evidence of the complainant. The issue comes back to whether the complainant’s evidence may be accepted beyond reasonable doubt 125. In the circumstances of the case and with the benefit of being able to see and hear the complainant give evidence, it was open to the magistrate to conclude beyond reasonable doubt that she had been assaulted in the circumstances that she described and to not have a doubt about the accuracy of those allegations based upon the bare denial by the appellant.
The primary judge dismissed the appeal and confirmed the convictions concluding: 127. Having reviewed the whole of the evidence and the magistrate’s reasons for judgment, and respecting the advantage that the magistrate enjoyed, I am not satisfied that the magistrate erred in accepting the complainant’s allegations beyond reasonable doubt. It follows that I consider that, upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty. The appeal to the Court of Appeal
By notice of appeal filed on 22 February 2024, the appellant appealed to this Court. The grounds of appeal were: (a) The appeal judge erred in finding that the appellant engaged in conduct causing the appellant to be within 70 metres of the complainant; and (b) The appeal judge erred in finding that the appellant punched the complainant.
The appellant was self-represented on the appeal. Whilst he filed no written submissions, he did file three affidavits dated 9 July 2024 and relied on three undated letters addressed to the Court. It is useful to set out the some of the content of that material.
Relevantly, the first affidavit states: No evidence whatsoever from any of the police officers involved in the court case and for what reason did it take [the complainant] 8 or 9 days to ring the police to get me charged? And also in Gary Sampson statement to the police and also to the magistrate in court that he saw [the complainant] glueing the denture teeth back together months before and also that [the complainant] did not tell Gary that [I] had punched her?
The next affidavit, of the same date states: A statement on behalf of [the complainant] saying that a female caught a Taxi from the females residence to [Scott Doyle’s] residence and stayed at [Scott Doyle’s] house overnight (no evidence from [the complainant]) (plenty of evidence from [Scott Doyle]) saying that the lady had not come to my place at all.
The third affidavit states: That the charge of breach of bail against me is that I supposedly picked [the complainant] up from somebody’s house and gave her a lift in my ute to my house The address of the house where I supposedly picked [the complainant] up from? The name of the person that either lives at the house or was at the house?
The letters handed up to the Court by the appellant at the hearing of the appeal were undated and included the following relevant assertions.
First Letter: The charge of Breach of Bail I supposed that I drove my work ute to pick [the complainant] up from somewhere, what is the name of the address? And also the name of the persons house or property where I supposedly picker her up from? I also know for a fact that the evening before that [the complainant] and another lady Travey arrived at my house both of them on a scooter each I personally told [the complainant] to go away from my property and I was refused by [the complainant] but the other lady Tracey told [the complainant] to leave and both women did leave. [the complainant] arrived at my property by herself the following morning I did not drive my work ute anywhere what so ever. I should not have been charged for Breach of Bail because I have the proof of evidence that I did not pick [the complainant] up from anywhere what so ever.
Second Letter: th On Wednesday the 11 of January 2023 [the complainant] walked straight into my house at about 7.30am [the complainant] started verbally abusing me regarding an accusation that a female Antonia Bostock had stayed at my house overnight. [The complainant] also says that Antonia Bostock had arrived at my house by Taxi the night before. Antonia Bostock has evidence that she did catch a Taxi from her own house to the Calwell Service Station to buy herself a packet of cigarettes and she was taken directly back to her own house [The complainant] threw something down onto my loungeroom floor and then she went out my front door. I stood up from my lounge and walked over and picked up two parts of dentures I went out my front door and asked [the complainant] what are you doing throwing your dentures down. [The complainant] replied that she will ring the Police and have me charged with Assault. The police were rung about 8 days later?
Third Letter: I [Scott Doyle] will tell you the truth and nothing but the truth I was arrested outside the Calwell Tavern on Thursday evening 19 January 2023 and charged with Assault causing actual bodily harm. I was also charged with Breach of Bail and also charged with property damage. I [Scott Doyle] pleaded guilty immediately for property damage to the fly screen door, the metal [unclear] right next to the fly-screen door and not guilty to the glass window that was supposedly smashed. The charge of the glass window was dropped for the reason being that the glass window had masking tape attached to it inside and outside for a very long time therefore the charge was dropped, for what reason was I charged? ([the complainant] lied). The police realised that the glass window had been smashed a long long time before and also know the reason why I pleaded not guilty.
The part of the third letter which addressed the property damage offence would appear to have no relevance to the appeal and we have disregarded it. We note that although the appellant refers to being arrested for breach of bail, it appears from the evidence before the magistrate that he was arrested for breaching the Family Violence Order. In our view, nothing turns on this.
The Court in Alexander considered the nature of an appeal to this Court in circumstances such as this matter and observed at [11]-[14]: 11. As apparent from the introduction above, the appellant appealed the magistrate’s findings of guilt to the ACT Supreme Court. That appeal was pursuant to Division 3.10.2 of the Magistrates Court Act 1930 (ACT) (“MCA”), relevantly, ss 208 and 214. This is an appeal from orders of that appeal judge, allowing the appeal from the magistrate’s decision in part and thereby confirming a number of the magistrate’s convictions. Accordingly, this is an appeal against orders made by the appeal judge by way of rehearing pursuant to s 37O(1) of the SC Act, not an appeal against conviction, to which s 37O(2) is directed. In other words, this is not an appeal against a conviction alleging the verdict should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, the language of s 37O(2)(a)(i). 12. That is not to suggest that an appeal on the basis the convictions were not supported by the evidence could not be sustained. Rather, it is to emphasise the importance of clarity about the nature of the appeal. 13. Where an appeal is by way of rehearing, generally an appellant may succeed only by demonstrating material error in the decision below, whether legal, factual or discretionary: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (Allesch) at [23]. This is noting that a court on a rehearing is to conduct a real review of the evidence given at first instance and the judge’s reasons for judgment and, while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, reinforced by the High Court in Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]- [56]. 14. In contrast, when considering whether a verdict is unreasonable, the Court must ask itself “whether it thinks that upon the whole of the evidence it was open to [the Tribunal of fact] to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492-495; and see Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 (Dansie) at [7]- [8]; Lang v The Queen [2023] HCA 29; (2023) 97 ALJR 758 (Lang) at [251].
The Court continued at [18]-[20]: 18. Accordingly, an appellant may succeed in an appeal under s 214 of the MCA by demonstrating that the magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed. Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision. 19. It may also be accepted that unreasonableness is a species of factual error which may, if established, justify this Court setting aside the appeal judge’s orders pursuant to s 37O(1) of the SCA. 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; (2003) 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.
Counsel for the respondent noted that the appellant indicated in his notice of appeal that he “may” seek to put further evidence before this Court. Whilst counsel accepted that this Court has a discretion to receive further evidence, it was submitted that the material put before this Court by the appellant did not in fact contain any evidence, but rather advanced submissions made in support of the appeal. As revealed in the extracts above this was an accurate characterisation of the content of the material upon which the appellant sought to rely.
Further, the respondent acknowledged that two grounds of appeal were asserted in the appeal to this Court, but submitted that the content of the material relied upon by the appellant demonstrated that effectively, he makes the same argument before this Court as he did before the primary judge, namely that the findings of guilt were unreasonable or cannot be supported, having regard to the evidence. The respondent approached the appeal on that basis and accordingly, did not oppose receipt of the appellant’s material by this Court as an outline of the submissions he wished to make in support of his appeal. The appellant did not take issue with that approach.
Having regard to the matters raised by the appellant in the material the substance of his complaint to this Court is that the verdicts were unreasonable or cannot be supported having regard to the evidence and the appeal matter has been considered accordingly.
The appellant asserted that the primary judge was in error to ultimately conclude that the convictions imposed by the magistrate were open on the evidence. The matters drawn to this Court’s attention in support of that contention centred around the credibility and reliability of the complainant’s evidence to demonstrate that the verdict was unreasonable or cannot be supported having regard to all the evidence.
For convenience and clarity, it is useful to consider the matters raised by the appellant in this appeal by adopting the references in the primary judgment as argued by the appellant.