Druett v Steel [2025] ACTSC 538

1. The appellant, Mathew Druett, entered pleas of not guilty in the Magistrates Court to the following charges: (a) Assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) (CC 2025/1773); (b) Common assault, contrary to s 26 of the Crimes Act 1900 (ACT) (CC 2025/2914); and (c) Common assault, contrary to s 26 of the Crimes Act 1900 (ACT) (CC 2025/2915).

2. On a fourth charge, also alleging common assault arising out of the same incident, the prosecution offered no evidence. That charge was struck out when the matter came on for hearing on 23 June 2025.

3. The hearing proceeded and Magistrate Burt delivered her decision on the same day, recording a finding of guilt in respect of each of the three charges. The appellant is yet to be sentenced in relation to the offences and, in any event, presently remains in custody for other unrelated matters.

4. A notice of appeal against the verdicts of guilt for all of the offences was lodged on 21 July 2025. The grounds of appeal are: (a) The verdicts provide a misapplication of the Liberato direction; and. (b) The verdicts are unreasonable and are not supported by the evidence.

5. The jurisdiction of the Supreme Court to hear and determine appeals of this type from decisions of the Magistrates Court arises under ss 207 and 208 of the Magistrates Court Act 1930 (ACT).

6. The matters to which the court must have regard in such an appeal are set out in s 214: 214 Appeals in cases other than civil cases (1) This section applies to an appeal mentioned in section 208 (Appeals to which div 3.10.2 applies). (2) In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact. (3) In an appeal to which this section applies, the Supreme Court must— (a) if it considers it necessary or expedient to do so in the interests of justice— (i) order the production of a document or anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and (ii) order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and (iii) receive the evidence, if tendered, of any witness; and (b) receive evidence with the consent of the parties to the appeal. (4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if— (a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and (b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.

7. Pursuant to s 218, the court may make the following orders: 218 Orders by Supreme Court on appeals (1) On an appeal to which this division applies, the Supreme Court may— (a) confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or (b) give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order; or (c) set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceeding to the Magistrates Court for further hearing and decision, subject to the directions the Supreme Court considers appropriate. (2) A judgment or order of the Supreme Court under subsection (1) (a) or (b) has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly.

8. The nature of an appeal under s 214 is by way of rehearing. As was summarised in Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 (Alexander v Bakes) at [13], the court must undertake a real review of the evidence and the decision in the court below, while giving due deference to the advantages enjoyed by the trier of fact at first instance in hearing and seeing witnesses give evidence. In that regard, the appellate court must observe the ‘natural limitations’ of proceeding on the record: Fox v Percy [2003] HCA 22; 214 CLR 118 at [23]. The onus is on the appellant to demonstrate legal, factual or discretionary error on the part of the Magistrate: Alexander v Bakes at [13].

9. In relation to the second ground, the court must consider whether, upon the whole of the evidence, it was open to the Magistrate to be satisfied beyond reasonable doubt that the appellant was guilty: see M v The Queen (1994) 181 CLR 487 (M v The Queen) at 492- 493. As noted in Alexander v Bakes at [18], in relation to a ground alleging the unreasonableness of a verdict: [A]n appellant may succeed in an appeal under s 214 of the [Magistrates Court Act] 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. The events leading to the charges

10. The charges arise from three incidents in the course of an interaction between the appellant and a young woman at a construction site in Belconnen, ACT on 17 December 2024. The young woman was working as a traffic controller at the site and is the complainant. The interaction with the appellant occurred in circumstances where he attempted to, and did, enter the construction site without wearing any of the requisite safety gear, and the complainant sought to prevent his entry.

11. The prosecution case was as follows: (a) At about midday on 17 December 2024, there was an initial verbal exchange between the complainant and the appellant when he was observed on the construction-site side of the road. The appellant was asked by the complainant to move, and he declined to do so. After some further discussion, the appellant pushed the complainant in the shoulders a number of times (the first assault). (b) The complainant then proceeded in the direction of the site office to make a report. The appellant also walked towards the site office and on the way there, again pushed the complainant in the back (the second assault). (c) Upon arriving at the site office but before entering the office, there was a further interaction between the two, culminating in the appellant striking the complainant in the face, causing soft tissue injuries to the complainant’s face (the third assault and the assault alleged to have caused actual bodily harm).

The prosecution evidence

12. The prosecution case was based primarily on the evidence of the complainant. Evidence was also adduced from the police informant in this matter, Constable Steel, and from a witness who was the head of safety on site, Francis Fainifo. The complainant

13. The complainant gave evidence that she had just commenced on “pedestrian watch” when she noticed the appellant walking towards the site. She asked him to move to the other side of the road because it was an open site. She asked him to do this several times and also told him of the safety clothing requirements on site. She said that the appellant was wearing a singlet, shorts, a hat and normal shoes.

14. The complainant then observed the appellant step up on some scaffolding, at which time she told him to get off the scaffolding. The appellant responded by indicating that he previously worked at the site, that he didn't have to listen to the complainant, and he could do what he wanted. She said that he became angry and that she then started backing away, as he confronted her. She then went to use her radio to call a colleague, and he knocked the radio out of her hand. The appellant then commenced pushing the complainant’s shoulders. She believed the appellant pushed her in this way three times (conceding that her memory of the incident was “a bit dazy after”).

15. The complainant then gave evidence that some other work colleagues engaged with the appellant and attempted to calm him down. She decided at that point to go to the site office and report the incident. The appellant moved in the direction of the site office at about the same time. As they both moved to the site office, the appellant pushed the complainant in the back, knocking her off her feet. She got back up and started running to the office. As she took hold of the door handle, the appellant grabbed her shirt collar from the back, turned her around and punched her once in the face.

16. The complainant was able to identify a photograph of her face taken after the incident by an attending police officer that showed her right cheek to be swollen and discoloured. She described attending hospital after the incident, where she was assessed by X-ray scan for any fractures, and advised that her injuries were soft tissue in nature.

17. The complainant was shown CCTV footage, taken from the neighbouring Chemist Warehouse store, which captured a limited view of the construction site at the time of the incident. The complainant was able to identify herself and the appellant in the footage. In relation to the second assault, where she was pushed in the back as she made her way to the site office, the complainant indicated that from the perspective of the CCTV footage, that push occurred “[j]ust after that red shipping container”, and was thus obscured from view. It is evident from the CCTV footage that the red shipping container prevents any view of the site office from the perspective of the CCTV camera.

18. Under cross-examination by Mr Ameen, counsel for the defendant, the complainant was challenged about some inconsistencies between her oral evidence and the version of events that she gave to police, leading to the preparation of her statement. She acknowledged that at the time of giving the statement to police she was feeling “very dazy and confused in my head”, and that some aspects of her statement did not provide “full information”. She rejected the proposition that her memory at the time of the incident was better than it was as she gave her evidence in court, but stated that some of the details of the incident had come back to her the more she thought about it. By way of example, the complainant accepted that she may not have told the police about the appellant’s second push being made with one hand. She also gave evidence about having paused briefly to call the site supervisor before the third assault, and acknowledged that this was also a detail she had not included in her statement to the police.

19. The complainant was then cross-examined about whether the physical blow that she received was a consequence of a slap or a punch. She was reminded that in court she had referred to a punch, but in her earlier police interview on the day of the incident she had said that she was not sure if the impact was a slap or a punch. The complainant readily accepted the distinction between the two, indicating that after speaking with staff at the hospital she had formed the view that it was a punch rather than a slap. She accepted that she could not be certain one way or the other. The exchange proceeded in this way: Ameen: So you are saying that it was a punch because the hospital told you that it was a punch? Witness: I - the hospital didn’t say that, but from them doing the x-rays and everything, they also assumed it was a punch. They didn’t confirm that it was a punch, but - - - Ameen: So your answer today in court that it was a punch is based on the assumption that the hospital gave you? Witness: Yes. Ameen: All right. So you accept it’s a guess? Witness: Not a guess. Ameen: Well, it’s an assumption. You don’t know whether it was a punch or a slap; you accept that? Witness: Yes. Ameen: But you tell the court today under oath that it was a punch? Witness: Yes. Francis Fainifo

20. On 17 December 2024, Mr Fainifo was inside the site office. He observed the appellant enter the office, “very abrupt and stressed and frustrated”, and the complainant enter immediately after. The appellant stated that he wanted to make a complaint “towards the traffic controllers”. Mr Fainifo was unable to make sense of the situation as the appellant and the complainant were talking over each other. He was concerned about the safety of his co-workers, and he elected to remove the appellant from the site office and take him down towards the gate. He noted that the complainant looked scared and had a red face.

21. Under cross-examination, Mr Fainifo was unsure whether he had mentioned the red discoloration of the complainant’s face to the police in his interview with them. He said that while she was in the site office, the complainant referred to having been assaulted by the appellant.

22. When questioned about his failure to tell police in his interview that “a person has been assaulted” on the site, he said that he had not personally witnessed the assault. He said, “when I do make a statement, they’re things that I need to be witnessing, and I don't witness that”. Mr Fainifo said, “I didn't see the assault, but I saw evidence of someone with obviously that on their face. ... I didn't see the assault, but I did see evidence of bruising, or redness, on [the complainant’s] face.” He conceded that the assault may have been disclosed after the appellant first made a complaint about the conduct of the traffic controllers.

23. Mr Fainifo recalled that another traffic controller, Mackenzie Kerry, had disclosed that there was “a bit of push and shove” between her and the appellant, and that she had made a complaint to the construction company.

Constable Thomas Steel

24. Constable Steel attended the site in response to a radio transmission from ACT Police Operations reporting an incident in Belconnen. He was met by Mr Fainifo and taken to the site office where he conducted a record of interview with the complainant. He did a walkthrough of the site with the complainant, and his body worn camera footage of the walkthrough was received into evidence. Constable Steel also obtained the CCTV footage from the neighbouring Chemist Warehouse store. The appellant’s record of interview with police on 29 January 2025, recorded on body worn camera, was also tendered through this witness.

25. There was no evidence tendered in the defence case. Ground 1: The application of the Liberato direction

26. The Liberato direction is a legal instruction given by a judge to a jury in a criminal trial where there is a need to address a conflict between the evidence presented by the prosecution and the defence. It is, in essence, a direction about the onus and standard of proof in criminal proceedings, being matters on which a jury must be directed clearly and appropriately.

27. In referring to Liberato v The Queen (1985) 159 CLR 507 (Liberato v The Queen), the case from which the direction is derived, the High Court stated in De Silva v The Queen [2019] HCA 48; 268 CLR 57 (De Silva) at [12] that the trial judge is required to direct that: … (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?

28. In Liberato v The Queen, the direction was, by its terms, restricted to a trial in which there was a conflict in the sworn evidence. As counsel for the respondent highlighted in her submissions before me, the effect of the decision in De Silva was to extend the requirement for such a direction to circumstances in which the conflicting account was in the form of a witness’ record of interview with police. The majority in De Silva stated at [11]: If the trial judge perceives that there is a real risk that the jury will reason that the accused's answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused's account in a record of interview suffices to establish guilt, a Liberato direction should be given. Where the risk of reasoning to guilt in either of these ways is present, whether the accused's version is on oath or in the form of answers given in a record of interview, the Liberato direction is necessary to avoid a perceptible risk of miscarriage of justice. When an accused gives, or calls, evidence there is a natural tendency for the focus to shift from the assessment of the capacity of the prosecution case to establish guilt to an assessment of the perceived strengths or weaknesses of the defence case. Recognition of this forensic reality suggests that the risk that the jury will reason in either of these ways is more likely to arise in a trial in which the conflicting defence account is on oath. (Footnotes omitted.) Appellant’s submissions

29. The appellant does not suggest that the Liberato direction given by the Magistrate in this case was in any way deficient. The criticism is instead directed to the application of the direction, and in particular to the Magistrate’s comment that the appellant’s account amounted to “bare denials of the offending conduct”. The appellant contends that an alternative version of events was put to the complainant in cross-examination at trial, such that the appellant’s account could not be characterised as a “bare denial”.

30. The appellant also contends that the Magistrate’s failure to indicate expressly what she had done in relation to the appellant’s record of interview constituted a failure in the application of the Liberato direction. The appellant says that what was required of the Magistrate was to articulate that the appellant’s denials were rejected and had been put to one side.

Respondent’s submissions

31. The respondent submits that the appellant’s “account” was properly characterised as a bare denial. Relevantly, the Magistrate, in the course of giving reasons, referred to the decision of Mossop J in Connelly v Hayes [2024] ACTSC 26 (Connelly), where his Honour stated at [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.

32. If the appellant relies upon the alternative version of events that emerged in the course of cross-examination of the complainant – that is, a version whereby the complainant’s injuries were caused by her tripping as she made her way to the site office – the respondent says that is not a version that is reflected in the appellant’s record of interview. It emerges only (presumably on instructions) from the line of questioning directed to the complainant. The respondents submits that whatever underpinned that line of questioning, it did not form part of the evidence before the court, and as a consequence, fell outside the scope of a Liberato direction.

33. To the extent that the appellant’s version of events in his record of interview was a denial of the allegations, the respondent submits that the denial did not include the presentation of “a reasonably plausible alternative version of events”. In those circumstances, its acceptance or rejection turned upon an assessment of the evidence in the prosecution case as a whole, particularly that of the complainant. The respondent contends that the Magistrate’s ultimate finding was one of acceptance of the complainant’s account in respect of each of the offences and satisfaction that each of the offences were proved beyond reasonable doubt. That acceptance necessarily involved a rejection of the appellant’s account. Was there a misapplication of the Liberato direction?

34. The relevant direction in the Magistrate’s reasons was: I am giving myself a Liberato direction in relation to that account. Your evidence should not be subject to any greater scrutiny because it is the evidence of a person accused of an offence. I am free to accept some, all or none of that evidence, but even if I reject some or all of that evidence, I must consider whether the prosecution has discharged their onus to satisfy me beyond reasonable doubt. The fact that you have given an account in the interview does not alter the burden of proof. You do not have to prove that your version is true. Even if the evidence relied on by you is not positively believed, I must not convict you if it gives rise to a reasonable doubt about guilt. So, first, if I believe your evidence, I must acquit you. If I have difficulty in accepting your evidence, but I think it might be true, I must also acquit you. If I do not believe your evidence, then I should put it to one side. Nevertheless, the question will remain, can the prosecution, on the basis of the evidence that I do accept, prove your guilt beyond a reasonable doubt.

35. The appellant contends that, having directed herself in that way, it remained for the Magistrate to expressly reject the appellant’s evidence where her Honour did not believe it. The Magistrate commenced the analysis by categorising the appellant’s version as a bare denial of the offending conduct, referring with approval to the observations of Mossop J in Connelly. Her Honour noted that as it was a bare denial, there was nothing in the appellant’s account which tended to undermine the credibility of the complainant’s allegations.

36. The Magistrate went on to carefully analyse the evidence of the complainant to determine whether she could be satisfied on the basis of that evidence that the prosecution had established each of the elements of the offences beyond a reasonable doubt. She concluded: So, ultimately, I accepted the credibility of her account of the first assault, of having been pushed in the shoulders three times, and that she was pushed in the back with one hand such that she fell over, and that he then grabbed her and punched her in the face. I accept that she was credible in each of those accounts and that that generally is consistent with the evidence of Mr Fainifo.

37. I am not satisfied that in the application of the Liberato direction, there was a need for the Magistrate to go further. It was abundantly clear, having directed herself correctly and having then conducted a comprehensive analysis of the evidence in the prosecution case to the requisite standard, that the Magistrate was rejecting the evidence of the appellant. As Berman AJ observed in Phillips (a pseudonym) v Burton [2024] ACTSC 127 at [20] (quoting with approval the written submissions of the respondent in that case): In its written submissions, the respondent puts the matter very well: That the rejection of the appellant’s evidence, in part, occurred as a consequence of the magistrate’s acceptance of the prosecution case does not reveal a misapplication of the burden of proof, or an error in approaching her task. Rather, it reflects the reality that the evidence of the prosecution witnesses was diametrically opposed to that of the appellant who denied the offending had occurred. Her Honour was obliged to consider the whole of the evidence before making her findings. Her Honour’s acceptance of the prosecution case required rejection of the appellant’s evidence since they could not stand together.

38. The first ground of appeal therefore fails.

Ground 2: Unreasonable verdict not supported by the evidence

39. The question to be answered is whether, upon viewing the evidence as a whole, it was open to the Magistrate to be satisfied beyond reasonable doubt that the appellant was guilty. In answering that question the appellate court is called upon to make its own assessment of the evidence with a view to answering the question of whether that evidence gives rise to reasonable doubt. Where, contrary to the determination of the Magistrate, a doubt is experienced, the appellate court must consider whether the Magistrate’s advantage in seeing and hearing the evidence is capable of resolving the doubt such that the appellate court may conclude that there was no miscarriage of justice: see M v The Queen at 492-5.

40. In reflecting upon the nature of the independent assessment conducted by the appellate court, the High Court observed more recently in The King v ZT [2025] HCA 9; 281 CLR 137 at [11]: However, that assessment is undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties' respective cases at the trial. (Footnotes omitted.) Appellant’s submissions

41. In his written submissions the appellant identifies the following matters as inconsistencies arising from the evidence that ought to have resulted in a finding of reasonable doubt.

The first-in-time common assault

42. The appellant asserts inconsistency between the evidence of the complainant and Constable Steel as to whether there was pushing alleged in the interaction between the appellant and the co-worker, Ms Kerry. In her evidence-in-chief, the complainant referred to the appellant pushing her co-worker. The appellant contends that this is in some contrast to the evidence of Constable Steel who, when asked about his record of interview with Ms Kerry, accepted that Ms Kerry had not disclosed to him that she had been subject to an assault by the appellant.

The second-in-time common assault

43. The appellant identifies a number of inconsistencies between the evidence of the complainant, Constable Steel and the CCTV footage as to the location and circumstances of the assault.

44. I have had the benefit of viewing the CCTV footage in question. On the CCTV recording, the appellant can be seen to begin walking towards the site office from across the road. The complainant can then be seen running from across the road towards the site office shortly afterwards. The complainant overtakes the appellant without incident at a point approximately between the gates into the construction site, before moving out of view behind the red shipping container. The appellant also moves behind the red shipping container, about five seconds after the complainant on the recording.

45. First, the appellant contends that there is a discrepancy between the complainant’s evidence and Constable Steel’s evidence as to the location of the assault. During evidence-in-chief, the complainant was shown the CCTV footage from the Chemist Warehouse store and gave evidence that she had been pushed “just after” a red shipping container visible in the footage. The appellant says this is inconsistent with the evidence given by Constable Steel, who agreed that the complainant had indicated to him that she had been pushed “between the two gates” controlling access into the construction site.

46. Second, the appellant contends that the complainant’s movement towards the site office, as recorded on the CCTV footage, is not consistent with her having been the victim of an assault. The appellant contends that no reasonable explanation was given for why the complainant began running towards the site office in the way she did.

47. Third, the appellant submits that the cross-examination of the complainant at first instance raised serious concerns in relation to the reliability of her evidence, and contends that the complainant’s memory was “susceptible to change”. The appellant notes that the complainant agreed her memory of the incident when talking to police was “a bit hazy”, and that she had stated her recollection of the “little details” of the incident had changed “the more I think about it”. The appellant contends there is a real question as to whether the complainant’s evidence reflected her memory of the day or was a reconstruction of her memory from thinking about the incident afterwards. The assault occasioning actual bodily harm

48. The appellant relies upon a number of asserted inconsistencies in the evidence of the complainant given in relation to this incident. The appellant submits that during evidence-in-chief, the complainant indicated she was struck on the left side of her face, before changing her evidence to indicate she was hit on the right side of her face. The appellant contends that the complainant changed her account of whether she was punched or slapped “about four or five times” in giving evidence to police and in evidence to the Magistrate, and that it was not possible to make a finding with certainty as to whether the complainant was punched or slapped.

49. The appellant also submits that the complainant conceded she had not told police about calling the site supervisor before climbing the stairs to the site office, and could not remember if she had told police that she had been grabbed from behind by the appellant before entering the site office.

50. The appellant ultimately submits that the asserted lack of clarity and inconsistencies in the complainant’s account raise doubts about the complainant’s reliability. The appellant contends that it was not open to the Magistrate to make the findings that were made on the basis of the complainant’s evidence.

Respondent’s submissions The first-in-time common assault

51. The respondent submits that there was no relevant inconsistency between the evidence of the complainant and Constable Steel. The respondent notes that the complainant gave evidence on what she saw occur between Ms Kerry and the appellant, and had not given a recount as to whether Ms Kerry had made a complaint to police. Further, Mr Fainifo gave evidence that he was told by Ms Kerry about “a bit of push and shove” between Ms Kerry and the appellant, and that Ms Kerry had submitted a complaint to the construction company following the incident.

52. The respondent contends that the absence of evidence from Ms Kerry had little bearing on the complainant’s credibility, especially given that Ms Kerry’s interactions with the appellant were “relatively tangential” to what occurred after the conduct comprising the first-in-time assault. The respondent also notes the Magistrate gave a Mahmood direction to address Ms Kerry not being called, and that the appellant did not put the asserted inconsistency to the complainant. The second-in-time common assault

53. The respondent contends that there was no inconsistency in the complainant’s evidence of the location of the second assault. The respondent notes the complainant’s evidence that the second assault occurred after she had passed through the gates to the construction site. When shown the CCTV footage of the site, the complainant identified the location as just past the red shipping container. In body worn camera footage of the construction site walkthrough, the complainant appears to point past the gates, towards the red shipping container, and can be heard telling police she had passed through the gates and that the assault occurred “around these grey paver things”. The respondent submits the complainant’s evidence is consistent with both the CCTV footage and the body worn camera footage of the site walkthrough.

54. The respondent submits that any inconsistency between the complainant’s evidence and Constable Steel’s evidence about the complaint made is a result of Constable Steel’s agreement with a proposition put to him by the appellant in cross-examination: And she has indicated to you that between the gates is when [the appellant] has pushed her?

55. The respondent submits that the proposition put to Constable Steel mischaracterised the evidence from the recording of the site walkthrough with the complainant, and that the asserted inconsistency arose from the manner in which the proposition was framed in cross-examination, rather than from a substantive inconsistency in the complainant’s evidence.

56. The respondent further contends that the complainant gave a cogent and logical explanation for why she began running to the site office, in circumstances where a person had entered the construction site without permission and was acting aggressively.

57. The respondent submits that the appellant’s complaint about the reliability of the complainant’s memory was of little significance, in circumstances where the complainant gave a “cogent explanation” for why she had not mentioned some details of the incident to police. The respondent notes that the complainant acknowledged she spoke to police shortly after the assaults, and submits that it is not unexpected for a person to feel disoriented and fail to report some details immediately after an assault. The respondent further contends that the complainant’s recollection of details in oral evidence that she had not mentioned to police, such as how many hands she was pushed with during the second assault, could not be fairly characterised as a “change” in memory. The assault occasioning actual bodily harm

58. The respondent contends that the appellant’s submissions in relation to this ground assert inconsistencies in minor aspects of the complainant’s evidence, without advancing a proper basis for an unreasonable verdict to have arisen on the evidence. The respondent submits that the omissions identified by the appellant are of little significance and in the same vein as the complaints in relation to the reliability of the complainant’s memory of the second incident.

59. The respondent submits that the complainant made a “slip of the tongue” when referring to the left side of her face, which she immediately corrected. The respondent highlights the complainant’s acknowledgement that her punch to the face evidence was based upon an assumption formed from what she had been told by medical staff. The respondent notes that the prosecution was not required to prove the precise nature of the strike to the complainant, only that the complainant had been struck in some way.

Is there a doubt experienced on the evidence, viewed as a whole? The first-in-time assault

60. I am not satisfied that the discrepancy identified by the appellant is made out. To the extent that the description given by the complainant may be said to differ from that received by Constable Steel as to the interaction with Ms Kerry, it was well explained by the complainant in the course of cross-examination. Her evidence to the effect that she saw Ms Kerry being pushed is entirely consistent with the description that Ms Kerry provided to Mr Fainifo.

61. I accept the submission of the respondent that Ms Kerry’s reasons for failing to make reference to that interaction in her interview with Constable Steel may be due to any number of reasons. However, it is properly characterised as an omission rather than a positive inconsistency. It does not of itself bespeak of an inconsistency leading to doubt. That is particularly so when the focus of the police officer’s evidence gathering was on the assault that had been alleged by the complainant and not on Ms Kerry’s own experience.

The second-in-time assault

62. The discrepancies relied upon by the appellant relate primarily to the location of the assault and the speed with which the complainant traversed the area from the gate to the site office.

63. As to location, the asserted discrepancy is not made out. The evidence of the complainant is consistent with both the body worn camera footage and the CCTV footage, noting that each records the location from a different angle. As the Magistrate observed, the assaults were not depicted on the Chemist Warehouse CCTV recording because the area in question was outside the scope of the relevant camera.

64. When the complainant was recorded on the body worn camera footage of the site walkthrough, which depicted the red shipping container, she described the assault by, amongst other things, pointing in the direction of the red shipping container. Her description to the police and her oral evidence was to the effect that the assault occurred in the vicinity of the site office, which would have placed her somewhere behind the red shipping container, or out of sight from the perspective of the CCTV.

65. As to the component of speed I do not accept that there is an inconsistency revealed by a comparison of the CCTV footage and the complainant’s evidence. The complainant’s evidence was that, unsurprisingly, she was in a hurry to get to the site office to report the incident. She rejected the proposition put to her in cross-examination that she was rushing to the office to prevent the appellant from making a complaint. Viewed objectively, it is quite unclear how her arrival at the office before the appellant would have prevented such a complaint being made in any event.

66. The appellant also seeks to challenge the reliability of the complainant’s recall, based on her own admission in the course of her evidence that her memory shortly after the assault was “very dazy and confused”. I accept the respondent’s submission that there was a cogent explanation for why the complainant did not mention several minor details in her recall of this incident to police, and that some of these details may not have seemed consequential to the complainant at the time she spoke to police. This was also a matter which was examined and dealt with in some detail by the Magistrate in her reasons.

The assault occasioning actual bodily harm

67. There are a number of elements to the appellant’s contention, which is to the effect that inconsistencies in the complainant’s evidence when viewed as a whole ought to give rise to doubt. The issue as to the side of the face identified as the location of the strike that the complainant received can be readily dispensed with. It is quite clear that the complainant made a mistake, initially referring to the left side of her face, which she quickly corrected in the same sentence. Her evidence in that regard is entirely consistent with the photographic evidence.

68. In a similar vein, I accept that the complainant’s failure to tell the police that she was grabbed from behind and the failure to disclose her attempt to call the site supervisor immediately prior to the subject assault do not rise to the level of discrepancies in her evidence suggesting either an issue as to reliability or as to credibility. Both matters involved a level of detail which I readily accept may have been overlooked in the aftermath of what would have been a very stressful experience for the complainant. I accept that they constitute the type of detail likely to emerge with the benefit of time to reflect, and in response to closer questioning.

69. The primary concern raised by the appellant was as to the nature of the strike; that is, whether it was in the form of a slap or a punch. I do not accept the contention of the appellant that the precise nature of the strike was a matter which it was necessary to resolve before the Magistrate could be satisfied beyond reasonable doubt that the offence occurred. It would be entirely outside the scope of normal human experience to impose upon the victim of an assault a standard that required them to identify with precision the exact nature of the blow to which they were subjected. Proof of the offence requires acceptance of the contention that the complainant was in fact struck, and not whether she was struck with an open fist or a closed one. I accept that there will be cases where the evidence as to the nature of the strike will be relevant to the task of weighing the evidence as a whole to assess whether there is doubt about the offence having been committed. That will be particularly so where there are competing factual accounts about the nature of the interaction between a complainant and a silent accused, but this is not such a case. There is no counterfactual.

70. I am not satisfied that the complainant's inability to identify with precision the nature of the blow that she received, nor her decision to conclude, based on the evidence available to her, including medical evidence, that she was probably punched, when considered in the context of the evidence as a whole, is such as to lead to any doubt about the verdict.

71. The second ground of appeal therefore fails.

Appellant’s submission on Mahmood direction

72. Although not expressly forming part of the appellant’s grounds of appeal, an issue was raised in oral submissions about the respondent’s failure to call any other witnesses from the building site who may have witnessed the offences or their aftermath, noting that there was reference in the evidence to other persons being in the vicinity, at least in relation to the first assault.

73. The difficulty with that submission on appeal is that it is not something that was raised at all before the Magistrate and no request was made for a Mahmood direction in that regard. The principle which stands against new issues being raised on appeal is generally strictly applied, absent some exceptional circumstance. In Water Board v Moustakas (1980) 180 CLR 491 at 497, Mason CJ, Wilson, Brennan and Dawson JJ stated that: More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. (Footnotes omitted.)

74. The rationale for strictly enforcing this principle was described by Gleeson CJ, McHugh and Gummow JJ in Whisprun v Dixon [2003] HCA 48; 77 ALJR 1598 at [51]: It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs. (Footnotes omitted.)

75. As the issue was not expressly raised as a ground of appeal, it is unnecessary for me to do more than to observe that I would have found against the appellant on this matter had it been raised, on the basis that it was not raised in the Court below.

Orders

76. For the reasons set out above, the appeal is dismissed.

I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: