Hamad v R [2023] NSWDC 492 | Case summary

District Court of NSW|2023-11-01

Introduction

On 3 April 2023, Shady Hamad (the appellant) was convicted of two counts of assault occasioning actual bodily harm, contrary to s 59(1), Crimes Act 1900 by her Honour Magistrate Atkinson (the magistrate) sitting at Sutherland Local Court. The appellant brings an appeal as of right against those convictions.
The appellant contended in the appeal that the magistrate failed to give effect to the Liberato principles and failed to adequately consider the inconsistencies in the complainant's evidence: Liberato v The Queen (1985) 159 CLR 507. The appellant ultimately submitted that there was a reasonable doubt as to the appellant's guilt and that the appeal should be allowed.
The alleged inconsistencies in the complainant's evidence were alleged to be: 1. The complainant gave evidence in chief that the appellant threw his licence forcefully onto the bonnet of the complainant's vehicle and that was not referred to in his statement to the police. 2. The complainant did not state in his evidence in chief that the appellant stomped on his chest but recalled that detail in cross-examination after being shown a copy of the hospital discharge summary (which did contain that allegation). The complainant did not specify in his evidence when the stomp on the chest occurred. 3. The complainant did not mention being dragged in the chokehold in his evidence in chief, but he did describe a similar action to the police when they first arrived at the scene, in an interaction that was captured on the body worn camera footage. 4. The complainant's evidence about the kick to his chin was implausible. 5. The complainant gave evidence in chief that he was placed in the chokehold the first time for 10-15 seconds, when he stated this was 40 seconds in his police statement. In cross-examination he gave an estimate of 20-30 seconds. 6. The complainant's evidence was that he did not touch the appellant's vehicle as he tried to leave whereas he stated in his police statement that he grabbed the driver's side door handle in an effort to stop the appellant from leaving. 7. The complainant gave evidence that he tried to grab the appellant's shoulder to try to stop him from leaving and this caused the appellant to throw a punch at him and that was not referred to in his statement to the police. 8. The complainant accepted after viewing the dash camera footage that he did not go back into lane 2 to turn right into Hudson Street, but in fact turned right from the wrong side of the road.

Facts

On 17 October 2022 the complainant and the appellant were drivers of motor vehicles that collided on Queens Road Hurstville, close to the intersection of Hudson Street. They stopped in Hudson Street to exchange particulars.
During their interaction, the complainant alleged that he was assaulted by the appellant, first by the appellant kicking him to the chin and launching a flurry of punches at his head and second by placing him in a chokehold from behind. The police were called and attended the scene of the alleged assaults, by which time the appellant had left. The police took photographs of the complainant at the scene. The complainant went to the police station to make a statement and then attended St George Hospital and was examined.
The appellant alleged that he was assaulted by the complainant and that his injuries were sustained when the appellant pushed the complainant to the ground in self-defence.
There were no independent witnesses called in the Local Court.

Relevant Law

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

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

Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].
The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].
Whilst the magistrate's reasons are not part of the certified transcripts referred to in s 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].
The Court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).
The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).
The requirement that the appellant demonstrate error does not reverse the onus of proof in that the prosecution, at all material times, bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA).
An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to the appellant's guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).
Section 20 Crimes (Appeal and Review) Act 2001 provides that the District Court may dispose of an appeal against conviction by setting aside the conviction or dismissing the appeal. There is no power to remit the matter to the Local Court.

Analysis of the Magistrate's Reasons

The magistrate delivered an ex tempore judgment shortly after the conclusion of the evidence and the submissions of the parties. The magistrate recited unremarkable directions concerning the elements of the offences, self-defence and the standard of proof.
She noted that the versions of the complainant and the appellant differed and that the clip of dash camera footage tendered by the appellant did not assist her to resolve the issue of guilt, deciding that who was at fault in the motor vehicle accident was an issue that she did not have to resolve.
The magistrate found that the complainant's injuries were consistent with his description of the events, and the medical evidence supported that version. She noted that there were some matters not mentioned by the complainant in his evidence.
After noting the appellant's version, the magistrate gave herself a Murray and a Liberato direction. The magistrate found that the graze to the complainant's left knee, the scratches on the side of his neck, the graze on his finger and the bruise on his chest wall were not explicable by the appellant's version of events. On that basis, consistent with Liberato, the magistrate stated that she set the appellant's evidence aside, because I infer she rejected it.
Returning to the complainant's evidence, the magistrate found that there were some difficulties with the complainant's evidence but took into account that he had been through a traumatic experience. Returning to the finding about the consistency of the injuries suffered, the magistrate was satisfied beyond reasonable doubt that the assault charges had been proven. The magistrate reiterated that she rejected the appellant's version, finding that he may have raised self-defence but his response was not a reasonable one in the circumstances that he found himself in.
The magistrate acquitted the appellant on the charge of intimidation because there was a dispute over the words spoken and in the absence of any other evidence she did not find the charge proven beyond reasonable doubt where the allegations were "word on word".

The appellant's submissions

The appellant's first submission was that the magistrate failed to give effect to the Liberato direction by: 1. finding that the appellant's evidence was "completely at odds with" the appellant's evidence because there was no evidentiary basis for that finding on the evidence; and 2. preferring the evidence of the complainant over the evidence of the appellant, rather than focussing on whether the complainant's evidence could be accepted beyond reasonable doubt.
The appellant's second submission was that there was no rational explanation for the inconsistencies in the complainant's evidence and the magistrate should have assessed his evidence with greater caution before deciding that the charges were proven beyond reasonable doubt.

Resolution

Having conducted an independent review of the evidence, I am not satisfied that the magistrate's decision finding the appellant guilty of both charges was wrong for the reasons that follow.
As to the appellant's first submission, I am satisfied that there was a proper evidentiary basis for the magistrate to find that the complainant's injuries were consistent with his evidence and inconsistent with the appellant's evidence.
The injuries sustained by the complainant were seen by the police on their arrival at the scene and photographed. In addition, police activated a body worn camera on arrival to the scene and the complainant gave a contemporaneous account of what had occurred which was consistent with his evidence. The swelling on the left hand side of his face was consistent with sustaining blows or a kick to the face. The scratches on both sides of his neck were consistent with being put into a choke hold from behind. The back of his shirt was dirty and this was consistent with being thrown to the ground as he alleged. The bruising to his chest was consistent with the allegation that he had been stomped on in that area.
I also agree with the magistrate's finding that the appellant's version of events was not consistent with the complainant's injuries. I agree with the magistrate's finding that the scratches to the complainant's neck and the grazes to his knee and fingers were not explained by the appellant's version of events. This was sufficient basis to reject the appellant's evidence and return to focus on whether or not the prosecution had proved the offences beyond reasonable doubt.
Whilst it is true that the magistrate referred to preferring one version over the other, I am satisfied that this was an infelicitous expression of the task she was undertaking. By referring to the principles in Liberato and Murray, I am satisfied that the magistrate was cognisant of and applying the correct decision-making process. After finding that she did not accept the appellant's evidence, she returned to consider the complainant's evidence and to determine that the inconsistencies in his evidence did not cause her reasonable doubt. This process indicated a correct application of the Liberato principles and the appellant's first submission must fail.
As to the second submission, the appellant made a number of specific submissions relating to the alleged inconsistencies.
First, that the complainant's evidence about the kick to the chin was implausible because there was no injury to the chin, he did not give evidence about what happened to his mobile phone and it was unlikely that the force of the kick caused him to stand up, rather than fall backwards. None of these matters cause me any doubt about the complainant's evidence and I do not find his evidence on this issue to be implausible. The complainant's evidence was that he was crouching down holding his mobile phone in both hands to take photographs of the front passenger side panel of his vehicle when he was kicked. It was open to find that the placement of the complainant's hands took some of the force of the kick, that the kick caused him to stand up rather than fall backwards and that the absence of an injury to his chin was not insignificant.
Second, the complainant was adamant that he had told the police a number of things that were not in his police statement. None of the matters relied on by the appellant went to the heart of the allegations. In fact, they were minor details. It is possible that he did tell the police the matters that were referred to but they were not included in his statement because they were considered to be irrelevant. The matters relied on by the appellant do not cause me to have a reasonable doubt about the appellant's guilt. The magistrate considered that there were inconsistencies in the complainant's evidence and still accepted his evidence against the background that he had been involved in a traumatic incident. It was entirely open to the magistrate to do so.
Third, it can be accepted that the dash camera footage did not support the complainant's version of the motor vehicle collision. The fact that drivers hold strong views about their culpability for traffic incidents is notorious. It is possible that the complainant was wrong and at fault in the collision, but that does not fall to be determined in this case and the magistrate was correct to resist the temptation to do so. The dash camera footage does not cause me to doubt, or reject, the complainant's clear and relatively consistent evidence about how he was assaulted by the appellant. His evidence is corroborated by the available objective evidence, being the complainant's injuries and the medical evidence. Further, the complainant waited at the scene for the police to arrive for the purpose of making an immediate complaint that he had been assaulted by the appellant in the manner alleged. This was conduct consistent with his allegations.
Finally, there is nothing about the complainant's evidence about the unavailability of any dash camera footage from his vehicle that causes me any doubt. His explanation for his failure to secure the footage was a reasonable one. It was open to accept that he was not sure if he wanted to pursue the matter. Further, the alleged assaults occurred to the passenger side of his vehicle and I do not know what, if anything, the dash camera footage would have shown and I must not speculate as to what it may have depicted.
Having conducted an independent review of the evidence in the prosecution case, I am satisfied beyond reasonable doubt that the appellant was guilty of the assault charges.

Orders

The orders I make are: 1. The appeal against conviction is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2023

Hamad v R

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Judgment (9 paragraphs)

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Cases Cited (7)