Ismail v Potter [2025] ACTSC 551

1. On 4 September 2024, the appellant, Mr Ismail, was found guilty and convicted by a magistrate of one count of assault, contrary to s 26(1) of the Crimes Act 1900 (ACT) (CAN 939/2024). That offence provision is as follows: 26 Common assault (1) A person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for 2 years.

2. The charged conduct relates to events on 19 January 2024 which occurred outside the bar To All My Friends in Cook.

3. Mr Ismail appeals from the finding of guilt. The notice of appeal lists one ground of appeal, namely that the Magistrate’s verdict was unreasonable and/or not supported by the evidence. The ground was not particularised, though the notice of appeal stated that Mr Ismail sought to put further evidence before the Court.

4. The appeal was listed before me on 21 November 2025. I adjourned the hearing for a week to allow Mr Ismail to prepare further written submissions in support of his appeal.

5. On 27 November 2025, Mr Ismail appeared and made a number of points. Although he did not make those arguments in precisely the way I have summarised below, it is fair to say that they represent the gravamen of his complaints on appeal. For convenience, I will summarise and number the points made by Mr Ismail, as follows: 1. The evidence given by the witnesses at the hearing before the Magistrate was inconsistent with evidence that they had given in other proceedings or in police interviews. Rather, the witnesses lied or did not give accurate evidence, and one witness did not see the relevant events in any case. Further, their evidence was inconsistent with the Australian Federal Police (AFP) Statement of Facts in the matter. 2. The Magistrate ought to have viewed the body-worn camera footage of the police talking to the witnesses. 3. Relatedly, there should have been CCTV footage of the incident as there were approximately seven CCTV cameras in the vicinity, at least one of which was said by the appellant to have faced straight toward the incident. 4. Mr Ismail was the true victim of the events, but the conduct of the complainant and other persons was not charged. 5. Mr Ismail’s first lawyer, who appeared for him in the Magistrates Court, was incompetent and did not provide him with proper advice or properly do what he needed the lawyer to do.

Summary of evidence before the magistrate

6. The prosecution case before the Magistrate consisted of the evidence of four witnesses (Xander Marriott, Shane Taylor, Samuel Tregurtha and Constable Keely Potter), and a recording of a call between Mr Marriott and a police assistance operator (a transcript of which was filed in this court along with the respondent’s submissions). The defence case consisted of the evidence of Mr Ismail, and a bundle of medical documents.

7. Mr Marriott, the complainant, was a bar manager at To All My Friends. His evidence was that, on 19 January 2024, he was cleaning the bar in the late hours of that evening. Mr Marriott said that, at the time, he had exited the bar to go to the back cool room when he saw Mr Ismail throwing milk crates around the front of the venue. Mr Marriott knew Mr Ismail as the latter was a local in the area, whom Mr Marriott described as initially nice but “he started becoming a bit more of a nuisance around the area and harassing customers”. Mr Marriott asked Mr Ismail to stop throwing milk crates, and the two got into a verbal altercation. Mr Marriott said that Mr Ismail threw a punch at him, which he dodged (this is the conduct the subject of the charge of assault by threat of force). Immediately after that, Mr Marriott went back inside the bar and requested that Mr Taylor, the bar owner, phone the police. In cross-examination, Mr Marriott admitted to pushing Mr Ismail after Mr Ismail had swung at him. Mr Marriott said he had done this to “push … [Mr Ismail] away from me, because he’d thrown a punch”. Mr Marriott said he had downplayed doing so to police as he did not want to get into trouble.

8. Mr Taylor was the bar owner, but was at the bar in a social capacity on the evening in question. He gave complaint evidence. He said Mr Ismail had been around causing a disturbance that day, and the police had been called several times that evening. Mr Taylor said that Mr Marriott “came back in and said that Moh [a nickname for the appellant] was kicking the milk crates around … and he had asked him to stop and there had been some sort of verbal altercation, which then had resulted in Mohammed attacking Xander”. Mr Taylor confirmed that he had not actually seen the incident.

9. Mr Tregurtha was a bartender at the bar. Like Mr Marriott, he was working on the evening of 19 January. His evidence was that his shift had ended at 9pm that day, and he was sitting outside the bar with two friends, having a beer, when he observed Mr Marriott attempting to deter Mr Ismail from approaching Mr Marriott in the alleyway to the side of the bar. Mr Tregurtha said that he saw Mr Ismail take a swing at Mr Marriott, which the latter avoided. Then, Mr Marriott pushed Mr Ismail out of the way, and Mr Ismail ended up on the ground.

10. Constable Potter, the informant in the court below, arrived at the bar at about midnight. She spoke to Mr Taylor and Mr Marriott at that time. She said that, after she concluded speaking with Mr Marriott, “l’d heard that one male had been placed in custody. We then transported him to the ACT Watch House.” She said that male was Mr Ismail.

11. Mr Ismail gave evidence. His evidence was that, on the evening of 19 January 2024, he was walking home in the alleyway when Mr Marriott and three other people approached him from behind. They called out his name, he turned around, and Mr Marriott punched him in the head very badly. Mr Ismail fell to the ground. Mr Ismail said that, after he was punched, “I grab my dog … [and] went home straight away … I went home and I called the police”. Mr Ismail denied throwing milk crates or harassing customers. He described that he continues to be in pain from the injury to his head.

12. Exhibit P1, the recording of the phone call, was obtained by Constable Potter, who gave evidence that the call was made by Mr Marriott on the night of 19 January 2024 (although the time was not specified). The recording is only a partial recording, but the caller is heard telling the operator that Mr Ismail (referred to only by his first name) was harassing customers, threatening to hurt the caller, and was generally making a nuisance of himself.

13. Exhibit D1 was the bundle of medical documents tendered on behalf of Mr Ismail. Among those documents is an ACT Health Department of Radiology report dated 20 January 2024 at 8:49pm in relation to Mr Ismail. It records the results of a “CT HEAD & FACIAL BONES” examination, and states, among other things: “Punched on left side of face last night”. Another document, ED Clinician Notes dated 20 January 2024 and electronically signed at 8:24pm by an emergency department nurse at Calvary Hospital (labelled “P 1/8” but only containing four pages), records: [Patient] stated being assaulted last night … was sitting in local pub was punched 1x on L side of face, was falling down, denies head strike, tried to defend himself, nil further assaults … Police was [sic] involved last night, [patient] was charged for assault, was in watch house … Evidence on appeal

14. Mr Ismail sought to put before the Court a number of documents additional to those which were before the Magistrate: (a) A partial transcript of certain workplace protection order (WPO) proceedings involving Mr Ismail and Mr Taylor, dated 4 October 2024 (the proceedings have a 2024 file number). (b) An AFP record of conversation between Constable Potter, Constable Matthew Priest and Mr Tregurtha, dated 28 February 2024. (c) An AFP record of conversation between Constable Potter, an unidentified male police officer and Mr Marriott, dated 20 January 2024. (d) A bundle of documents (which was admitted, without objection, as Exhibit 1), comprising: (i) A statement of facts by Mr Ismail. (ii) A letter from the Canberra Hospital Eye Clinic, dated 24 October 2024. (iii) A letter from Dr Eliza Paterson, dated 15 August 2024. (iv) A document headed “Vision” signed by Jimmy Sung Woo Park (optometrist), which appears to take a record of an eye examination. (v) A Canberra Health Services document for Mohammed Ismail from Dr Michael Hall as to a zygomatic arch fracture, dated 29 January 2024. (vi) Consultation notes for Mohammed Ismail by Dr Eliza Paterson, dated 8 February 2024. (vii) An Oral and Maxillofacial referral from the Canberra Health Services, sent on 15 August 2024. (viii) A Directions: Pathways to Recovery letter from Dr Eliza Paterson, dated 15 August 2024. (ix) An urgent registrar clinic note from Canberra Health Service, dated 18 July 2025. (x) A letter from Canberra Hospital Ophthalmology, dated 27 March 2025. (xi) A letter from Dr Luke Halliday of Canberra Hospital Ophthalmology, dated 20 November 2024. (xii) Two documents which appear to be described as eReferral notes concerning Mr Ismail, with an “encounter date” of 19 November 2024. (e) Body-worn camera footage of Officer Giles, recording the police’s interaction with Mr Ismail commencing at 12:08am on 20 January 2024. (This was played on the voir dire by consent in order for me to determine whether it should be admitted. Whether it should be admitted will be considered below.)

15. Additionally, a number of documents were certified by a deputy registrar of the Magistrates Court as being “the list of exhibits/ documents before the Supreme Court in the above matter”. The deputy registrar’s certificate was not challenged by either party. Those additional exhibits are: (a) An ASIC Current Company Extract in relation to To All My Friends Pty Ltd, retrieved on 1 March 2024. (b) A chronology by Mr Taylor dated 15 August 2024, filed in the WPO matter on 16 August 2024. (c) The originating application (filed 19 August 2016), a notice of a listing on 17 October 2016 (dated 16 September 2016), response instructions (requiring the recipient to respond by 10 October 2016) and interim orders (dated 19 August 2016), all in an earlier 2016 WPO matter relating to the café opposite the bar To All My Friends. (d) A Directions: Pathways to Recovery letter from Dr Eliza Paterson, dated 15 August 2024 (seemingly the same as that referred to at [14(d)(viii)] above). (e) The ED Clinician Notes dated 20 January 2024 which were part of Exhibit D2 in the Magistrates Court, but seemingly containing the last four pages of that document (noting that the copy that was part of Exhibit D2 only contained the first four pages). (f) A document which appears to be a phone log from Optus. (g) The AFP Statement of Facts in the matter under appeal.

Consideration

Point 1: Lies and inconsistent evidence

16. Mr Ismail submitted that the witnesses in the Magistrates Court gave untruthful evidence. He pointed to their statements to the police in the records of conversation, the AFP Statement of Facts, and the witness’ subsequent evidence in the 2024 WPO proceedings. Mr Ismail submitted that the Magistrate erred by accepting the evidence of the prosecution witnesses and rejecting the version of events Mr Ismail gave.

17. The Magistrate found Mr Marriott to be a “generally credible witness”. His Honour considered that Mr Marriott’s admission that he had sought to “minimise or downplay his role in the altercation was an appropriate concession which in fact enhanced his credibility”. The Magistrate found Mr Tregurtha to be a “reliable witness … very straightforward and frank … doing no more than recalling events as they unfolded”. The Magistrate accepted Mr Taylor’s evidence “in full” as “it seemed to me that he was straight forward and honest in his evidence”.

18. The Magistrate rejected Mr Ismail’s evidence, finding Mr Ismail to be neither a credible nor reliable witness.

19. Upon my review of the whole of the evidence in the court below, I consider that this finding was plainly open to the Magistrate. Likewise, each of the Magistrate’s findings of fact were open to him.

20. It is appropriate to deal with the key contentions Mr Ismail articulated in some detail.

Events earlier in the day on 19 January 2024

21. Mr Ismail submitted that the witnesses gave untruthful evidence about him being at the venue. In his written submissions, he stated that, earlier in the day on 18 January 2024, he was “sitting far away from the venue to get fresh air outside”. He submitted that what transpired at that earlier time was as follows: [B]efore the incident, the police arrive, he spoke to me. He spoke to me and he said, I was too far away. He said, “Any trouble here?” I said, “No, with whom? I don’t have any trouble with nobody”. … But what they are saying is, I was sitting there and I am harassing the customer and all that.

22. Mr Ismail appeared to be referring to a phone call which became Exhibit P1 before the Magistrate, in which the caller told the operator that Mr Ismail was harassing customers. Mr Ismail’s evidence before the Magistrate on that point was “I don't recall he called the police or not, but I never did anything wrong”. He denied harassing customers earlier that evening.

23. I have summarised the Magistrate’s assessment of the respective witnesses’ credibility above. On my review of the evidence, I consider that it was clearly open to the Magistrate to accept the evidence of the prosecution witnesses. The call made by Mr Marriott (Exhibit P1 below), so far as it is relevant, also supports the evidence of the prosecution witnesses. Indeed, in the court below, Mr Ismail denied being at the bar earlier that evening at all: Mr Ismail, I suggest to you that what actually happened was that you were at the To All My Friends bar earlier in the evening of 19 January 2024; is that correct?---No

24. His counsel below pointed out to the Magistrate that the question specifically referred to “earlier in the evening”, and Mr Ismail was not asked about his presence at the bar at any other time that day. However, in his submissions before this court, Mr Ismail asserted that the charged incident occurred “an hour later” from when the police officer arrived to speak to him, suggesting that Mr Ismail in fact was present earlier that evening.

25. Therefore, the Magistrate did not err in rejecting Mr Ismail’s account, which his Honour summarised as being that “he was not at the bar at all during the evening, as I understood the effect of his evidence … and just happened to walk past at a later stage”.

Whether Mr Ismail made contact with Mr Marriott

26. Mr Ismail submitted that he did not physically assault Mr Marriott (in the sense of a battery). His submission on appeal was: So they lie, your Honour. So I never touch him and never even – you know – physically contact with him but they saying, hey – you – I bash him. I hurt him. So that’s lie, your Honour.

27. In support of this contention, Mr Ismail pointed to the AFP Statement of Facts. He also submitted that that document had a number of inaccuracies, being that it wrongly described that he hit Mr Marriott’s chest with his hand, that he had his dog with him (and gestured to it threateningly, as if to get it to attack Mr Marriott and the others present), that he swore at Mr Marriott, and that Mr Marriott had a keg trolley with him.

28. Mr Ismail is correct to observe that there is some inconsistency between the AFP Statement of Facts and the evidence. Most notably, Mr Marriott’s evidence was, “as Moh approached me he put a hand out towards me, towards my chest, and took a swing at me, which I ducked”, whereas the AFP Statement of Facts asserts that Mr Ismail “placed one hand on [Mr Marriott’s] chest”.

29. The inconsistency arises because of Mr Marriott’s inconsistent statement in his record of conversation with police, dated 20 January 2024 at 12:13am (provided to this court by Mr Ismail). Mr Marriott said the following: Q13 [He’s] gone to hit you, could you just - like, whereabouts did he grab you, like, what hand - - - A So he put his hand - I think - I don't remember that it happened - - - Q14 Yeah. A Like, he put his hand on my chest - - - Q15 Yep. A - - - and I think, took a right swing at me, which I just ducked.

30. However, Mr Ismail’s submission is ultimately misconceived because the charge in respect of which Mr Ismail was convicted was assault by threat of force. As the Magistrate rightly observed, “it’s not alleged that there was actual physical contact by the defendant, as opposed to having a swing at the complainant, which the complainant ducked under”. His Honour further observed that the evidence of Mr Tregurtha and Mr Taylor was “consistent on the strike towards Mr Marriott by the defendant and also consistent on the strike not making contact with him”.

31. Of course, it was open to Mr Ismail in the court below to “explore how the author of the Statement of Facts came by the assertions of fact set out in the Statement of Facts, with a view to demonstrating that [the witnesses] had made a prior inconsistent statement”: Greenwood v Barlee [2018] ACTCA 62 at [18]. However, in the absence of having done so below — and given that the account in the AFP Statement of Facts was not relied upon by the prosecution or the Magistrate, and that the charge faced by Mr Ismail was that of assault by threat of force — the inaccuracy of the APF Statement of Facts has no bearing on the correctness of the Magistrate’s decision. It is the truthfulness and accuracy of the evidence given in court which the Magistrate was required to consider.

32. Indeed, notwithstanding that the AFP Statement of Facts appears on the exhibit list certified by a deputy registrar of the Magistrates Court, it does not appear to have been part of the evidence before the Magistrate. Even if it was before the Magistrate, the Magistrate’s reasons disclose that his Honour’s decision was based on the evidence of the witnesses and the two exhibits to which I have referred (P1 and D1). It was open to the Magistrate to convict Mr Ismail of assault by threat of force on the evidence his Honour accepted, which, as I have explained above and will elaborate upon below, was well open to his Honour to do.

When the appellant went home

33. In his reasons, the Magistrate said the following: [Mr Ismail] also stated that he simply walked home after what he calls the assault on him. He made no reference in his evidence to the fact that, at least according to the informant, Constable Potter, he was actually taken into custody that night and transported to the watchhouse, something which is consistent with notes contained in the hospital records. Again, that seems to me to be an inconsistency with unchallenged, objective evidence in the defendant's own version.

34. The hospital records to which his Honour referred are those within Exhibit D1 below (which was also tendered as part of Exhibit 1 before me), namely the ED Clinician Notes dated 20 January 2024. Those notes state: “Police was involved last night, [patient] was charged for assault, was in watch house”.

35. In his submissions before this court, Mr Ismail said: I moved backwards to remove myself from harm and returned home. From there I called the police and recorded for evidence. During the incident I had lost one of my Mobile Phones, [so] I returned to the scene around 15 minutes later to search for my phone when I saw the police were already there. … [The police] also asked if an Officer was here earlier, I responded with yes. …

36. Mr Ismail may have returned home for a brief period, given his unchallenged evidence in the court below that his house was a two-minute walk away from the bar. His counsel asked: What happened after Xander punched you?---Because I grab my dog, I went - I went home straight away. Because there's three of them, so I scared for my life, so they might attacked me further. So I went home and I called the police. Was there any further interaction in the alleyway after they punched me?---No. Just I went home.

37. It was not put to Mr Ismail how he came to be arrested.

38. Even if the explanation the Mr Ismail gave on appeal were to be accepted, it does not enhance his credibility as to the critical events earlier. In my view, it could not have affected the Magistrate’s overall assessment of Mr Ismail’s credibility and reliability.

Mr Tregurtha

39. Mr Ismail submitted that Mr Tregurtha gave evidence in the 2024 WPO matter which was inconsistent with his evidence before the Magistrate. Mr Ismail said, in particular, that Mr Tregurtha admitted in the WPO matter that “[Mr Tregurtha] never saw me [Mr Ismail] physically contact or violently approach Mr MARRIOTT”.

40. Mr Tregurtha’s evidence before the Magistrate was that he was sitting on one of the benches outside the bar with two friends, having a beer. He said: I was slightly obstructed by my friend's head, but from my position, it appeared that Moh took a swing at Xander … After that, from what I could see_, Xander avoided the swing and from my position it looked like Xander pushed him out of the way and Moh ended up on the ground.

41. So far as the absence of physical contact is concerned, that is irrelevant for a charge of assault by threat of force (and, in any event, Mr Tregurtha did not give evidence that he had seen Mr Ismail make contact with Mr Marriot).

42. So far as the violent approach is concerned, Mr Tregurtha said in the WPO matter (per the extract of the transcript provided by Mr Ismail): I had finished my shift and was there with two friends, sitting outside … and then heard, like, a verbal argument between [Mr Marriott] and [Mr Ismail], [Mr Marriott] trying to tell [Mr Ismail] to leave, and they then came back up to the top of the alleyway, to where they were in view. The verbal argument continued and [Mr Marriott] was using the keg trolley to keep distance between the two of them, and that's when, from where I could see, it looked like [Mr Ismail] had swung at [Mr Marriott], to which [Mr Marriott] got out of the way and pushed [Mr Ismail] away from himself, and after that, I proceeded to get up to aid [Mr Marriott] in trying to deter [Mr Ismail] verbally, until he did in fact leave the area …

43. Mr Tregurtha further said in the WPO matter, in response to Mr Ismail’s questioning: I could see you from there. … From where I was sitting at the time, it looked like he avoided your punch and pushed you out of the way. …

44. That is consistent with what Mr Tregurtha told the Magistrate (and, for that matter, consistent with what Mr Tregurtha told the police in his record of conversation dated 28 February 2024). There is no substance in this complaint.

Mr Taylor

45. Mr Ismail submitted that it was wrong for the Magistrate to have regard to Mr Taylor’s evidence given that Mr Taylor did not see the events.

46. This point may be dealt with briefly. Mr Taylor gave what is known as complaint evidence; that is, evidence of what Mr Taylor was told by Mr Marriott at a time when “the happening of the asserted fact was fresh in the memory of the person who made the representation”: Evidence Act 2011 (ACT), s 66(2). Mr Taylor gave evidence that Mr Marriott told him that the incident had occurred “immediately” prior to Mr Marriott speaking to him. The Magistrate made no error in having regard to Mr Taylor’s evidence as complaint evidence.

A prior assault

47. Mr Ismail submitted that he had been assaulted by certain persons on Christmas Eve in 2023, and that there was a connection between those persons and the bar. I note that the transcript of the 2024 WPO matter contains reference to this occurring, and a member of staff at the bar being aware. However, the events asserted to have taken place on Christmas Eve, if they happened, are not relevant to the events of 19 January 2024 the subject of the charge or this appeal.

Point 2: Body-worn footage

48. Mr Ismail submitted that, in the proceedings below, he wanted to adduce body-worn camera footage from the police officers who were present when they arrested him (and possibly from the officer who spoke to him earlier in the evening).

49. Not playing any available body-worn footage was a forensic decision made by Mr Ismail’s lawyers below (Mr Ismail’s point about his counsel will be expanded upon under Point 5 below).

50. Body-worn camera footage of Mr Ismail’s interactions with a police officer would not have aided Mr Ismail’s case. Even if it showed, as he asserted it did, that he had not been disrupting or harassing customers or staff at the time the officer spoke to him, it remained well open to the Magistrate to find that “the defendant attended at the bar earlier in the day on 19 January 2024 … [and] was, in general terms, making a pest of himself”. However, I note that that finding does not have particular relevance to the charged conduct later that evening. To the extent such footage could have gone to the relationship between the persons involved, there was ample evidence of previous negative interactions between the bar staff and Mr Ismail.

51. So far as body-worn camera footage of the police interactions with Mr Ismail on the night he was arrested is concerned, one officer’s body-worn camera footage was played during the hearing before me on the voir dire. In general terms, it shows Mr Ismail under the influence of an intoxicant of some description, speaking to police officers (I note that, in parts of the video, Mr Ismail’s face is quite clear and, contrary to his evidence and submissions, no injury can be observed on his face, although the lighting is poor). Mr Ismail can be heard asking the officers about his mobile phone, which he says he lost during the altercation.

52. I have some reservations about the admissibility of the footage. Mr Ismail makes a number of statements to police after one of the police officers tells him: “I need you to stay here. You’re suspected to be involved in an incident here. … You’re not free to go. You can’t walk away from us at this point”. No caution was provided until Mr Ismail was arrested a few minutes later.

53. However, given Mr Ismail requested that I view the footage, and counsel for the respondent consented to this being done on the voir dire, I did so. I am not satisfied that, if admitted, it would have made any difference to the Magistrate’s finding. At best, it was largely irrelevant, and at worst, it tended to support the evidence of the prosecution witnesses over Mr Ismail’s own evidence, given Mr Ismail’s intoxication and the observations which could be made about the apparent absence of any injury to his face. I therefore will not receive the footage which was played on the voir dire into evidence.

Point 3: CCTV footage

54. Relatedly, Mr Ismail submitted that the prosecution was unfairly prejudicial because he was denied CCTV footage from adjacent stores. He submitted that there were plenty of CCTV cameras in the area, including from a jewellery store, which he said had been robbed once before, and so was more likely to have operational cameras.

55. No CCTV was available for reasons which were not fully clear, and which are not necessary to determine here. The informant gave the following evidence before the Magistrate: Did you subsequently canvass the area for any CCTV footage?---Originally, yes. I hadn't walked around the back at that point, where the incident had taken place. Were you able to obtain any footage in relation to this incident?---No. So I went back to that location at a later date, when I'd substantiated exactly where the offence had taken place. I spoke to the manager at the Little - I think it's 'Oink' - shop, and he said the cameras weren't working at that time.

56. It emerged that the canvassing for footage only occurred after a request for disclosure by the prosecution’s office on 15 February 2024.

57. The absence of CCTV footage is unfortunate. However, the relevant question is what the Magistrate made of the absence of CCTV footage. While his Honour did not address the point, importantly for the purpose of the appeal, his Honour did not speculate as to what may have been on any footage. Rather, the Magistrate based his findings of fact on the evidence before him. It was open for the Magistrate to convict Mr Ismail on the evidence before his Honour. No error is disclosed in this regard.

Point 4: Persons not charged

58. Mr Ismail submitted that he was the true victim of the events of 19 January 2024. He tendered a number of medical documents. These all appeared to show that he suffered from a head injury, and his evidence before the Magistrate was that he continued to be in pain from that injury. He said that the cause of his injury has never been addressed by the courts. He submitted that he missed an early intervention surgery, and subsequent surgeries would be more invasive.

59. Mr Ismail’s evidence before the Magistrate was that Mr Marriott called him by name from behind as he was passing through the alleyway as he was walking home. When he turned around, Mr Marriott punched him.

60. The Magistrate’s findings were relevantly as follows: I have decided that ultimately I don't need to determine how the apparent injury to the defendant's left jaw occurred, because I'm satisfied beyond reasonable doubt that it did not occur prior to the incidents [of 19 January 2024] …

61. His Honour did list some hypothetical possibilities as to the cause of this injury, but avoided falling into error by determining: I don't need to decide which, if any of those, hypotheses is correct, because, as I've said, only one person has been charged with an offence arising from this incident and I'm satisfied that it did not occur, the injury was not sustained at any time prior to the actions by the defendant, which I'm satisfied themselves constituted an assault.

62. The Magistrate was correct to observe that the question before him was whether the prosecution proved that Mr Ismail had assaulted Mr Marriott in the way it was alleged.

63. Given Mr Ismail’s evidence below was that the attack was unprovoked and that he did not retaliate — an account which the Magistrate was entitled to reject, noting the assessment of Mr Ismail’s credibility and reliability — his Honour was correct to conclude that no issue of self-defence was raised. Therefore, Mr Ismail’s injury, though unfortunate, does not assist him in this appeal.

64. Mr Ismail also submitted that he was the victim of certain events alleged to have occurred on 24 December 2023. So far as those Christmas Eve events are concerned, I have addressed their irrelevance above.

Point 5: Competence of counsel

65. Mr Ismail’s final point was that his lawyer in the court below was not competent, or did not properly act on his instructions. The relevant principles have been set out in Faris v Savage (No 2) [2020] ACTSC 219 at [23]-[54]. It is sufficient to set out the statement of Gleeson CJ (McInerney J agreeing) in R v Birks (1990) 19 NSWLR 677 at 865: 1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as a result of the ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable to do so, to attempt to define such cases with precision. When they arise they will attract appellate intervention.

66. Mr Ismail’s written submissions included that “Legal Aid was not helpful they denied me CCTV”. In his oral submissions before me, Mr Ismail submitted, “I’ve never been properly advised by the Legal Aid, so that’s the problem”. He submitted that he gave a “direction to Legal Aid” for body-worn camera footage to be played, but that Legal Aid said “No, that’s not going to help you”. It was not clear, but Mr Ismail also appeared to be suggesting that two other persons who were present at the time of the events should have been called but were not.

67. The absence of CCTV footage has been addressed above. As to the playing of body-worn camera footage and the calling of witnesses, that was the subject of an agreement between the parties. Further, I have discussed the body-worn camera footage above. In totality, and having regard to the matters raised and the evidence put before me, the way in which the case was run below did not result in a miscarriage of justice.

68. Finally, I note that counsel for the respondent submitted that the appellant’s point about the asserted incompetence of counsel required amendment to the notice of appeal (at least to include that there had been a miscarriage of justice). Amendments to notices of appeals are governed by r 5111 of the Court Procedures Rules 2006 (ACT), which picks up Pt 2.7 of the Rules relating to the amendment of documents. As I consider that there is no merit in this point, I would not have considered it appropriate to allow an amendment, even if amendment were necessary and the prescribed procedures in the Rules had been followed.

Order

69. I have rejected each of Mr Ismail’s points. Therefore, his ground of appeal fails. The order of the Court is: (1) The appeal is dismissed.

I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly.

Associate: Date: