HIS HONOUR: This is an appeal against certain convictions recorded by Magistrate Donnelly sitting in the Local Court at Muswellbrook on 18 December 2020. The proceedings were actually heard by his Honour at Singleton on 16 October 2020, but his Honour gave judgment at Muswellbrook on 18 December 2020. The Court Attendance Notices were initially listed for hearing at Wyong Local Court, but I understand the case was administered from both Muswellbrook and Singleton Local Courts.
The appellant was charged with common assault, intimidation and assault occasioning actual bodily harm on his then wife Laani Maree Wright on 20 December 2019. Those three convictions are part of the appeal against conviction. The other offence for which there is an appeal against conviction is a charge of possession of ammunition for a firearm without holding a licence or permit to do so. To that offence the appellant pleaded not guilty on the basis that he had made an honest and reasonable mistake of fact. The three other offences, which might conveniently be described as domestic violence offences, were defended on the basis that they were not committed by the appellant as charged, but rather insofar as there was physical interaction between himself and his wife, that it was in self-defence.
[2]
Background
Some background is called for. In the Local Court the learned magistrate referred to the appellant as the defendant and his wife as the complainant. After directing himself in law, his Honour then purported to set out certain facts leading up to the events which were the subject of the charges. He commenced that section of his judgment with these words:
"The defendant and the complainant at the time of the incident had been in a relationship for nearly ten years. They have been married for six years. They have three children together."
The family group at the time was Joseph Peter Wright, the appellant, then aged 36, his wife, Laani Maree Wright was then aged 31. Their eldest child was a son, X (a pseudonym), who was then five and a half years old. Their second child was a daughter, Y (a pseudonym), who was three and a half years old, and the youngest child was another son, Z (a pseudonym), who was then two and a half years old.
The appellant and his wife had served together in the Australian Army. At the time of the incident alleged the appellant was what could be described as a "house husband". He was living at their home at Denman caring for their three children. The complainant, his wife, was an employee of New South Wales Fire and Rescue. She was working in the fire brigade in Denman. She was also involved in fitness and that will become clear when I recite some evidence. She would attend a gymnasium five or six days a week and she had a business, secondary to her work with New South Wales Fire and Rescue, because of her fitness activities.
The appellant, however, did not enjoy good health. He said in his evidence in the Local Court that he had had a translocation of the ulnar nerve in the right elbow. The ulnar nerve enervates the little finger and the ring finger of each hand and sometimes can affect a part of the middle finger. The appellant had had extensive damage to his right elbow in a training exercise when he was in Australia. That led to the transposition of the ulnar nerve and led to a partial loss of sensation in the distribution of the ulnar nerve. Although he said he could pick things up, he found, for example, catching a ball to be extremely difficult. He also found that things constantly fell from his right hand. He said he had very little power and no feeling in the little and ring fingers of his right hand. He also said that there had been the onset of osteoarthritis in the elbow joint as a result of the injury to it. He had restricted power and movement in the right elbow and he suffered pain in the elbow because of the osteoarthritis. It would appear that his ability to do things was limited by this injury.
In addition to the family home at Denman, the Wrights had a "hobby farm" at 762 Flaggs Road, Merriwa. This is described as a rural property containing a small homestead and two shipping containers.
[3]
Possession of ammunition
It is convenient to deal with the charge relating to ammunition first. The formal charge was that between 3:00pm and 4:30pm on 21 December 2019 at Denman the appellant possessed ammunition for a firearm without being authorised to possess the ammunition by a license or permit. When police searched the residence at Denman they found ammunition in a wardrobe in the bedroom which was occupied by the appellant. I do not know whether he shared that bedroom with the complainant, but that is the normal Australian practice for married couples.
In addition, the police found ammunition at the hobby farm at Merriwa, but that does not appear to have been the subject of the charge.
On 22 December 2019 the appellant participated in an electronically recorded interview with Senior Constable Jason Mitchell at the Muswellbrook Police Station. Commencing at Q 37 Senior Constable Mitchell turned his questioning to the ammunition which was located at the residence in Denman. The appellant volunteered this information:
"I don't remember putting those [the ammunition] there...Laani could have put those there. You know she was a licensed shooter too. Yeah, I, yeah, I...had a 303. It is probably mine, but it could have been a case or they were in a jacket or something, I sat 'em there, then I put 'em out in the shed later and I forgot."
The Senior Constable then asked the appellant what was his shooter's current licence status. He said that he had held a licence in categories A and B, but the licence was suspended. When asked why his licence was suspended he said this:
"Interesting story, that one. Um, earlier this year, was the...tenth anniversary of a mate of mine who got blown up in Afghanistan and there was a service on for that. At that stage, I was too physically impaired to drive and travel. I wanted to take my family to the service, especially my boys. However, Laani had booked in a photo shoot for her body building on the same day and refused to change it, so we had an argument about that. And my daughter...staying at my mother's place at that time, so she, Laani, left...with the boys to go and pick up [Z]. And I was stuck at home.
Um, the boys about 6 o'clock in the morning, the next morning after sitting up all night, just bawling my eyes out, I rang an ambulance. I said I...need somebody. I need somebody to talk to. And, so they come and got me, and I went to the hospital here at Muswellbrook. And they assessed me, and they did the interview, the television interview and stuff, and they assessed me. And they said, no, Joe, you're right to go home. I broke down again. I said, 'Please don't send me home, there's no-one there. I can't leave the place.' So they've...come back and they said, 'Ah, we've found you a bed. It's in Newcastle.' I said, 'Ah, sweet, all right. I'm going to Newie, I don't care where I go to go.' That turned out to be a psychiatric intensive care unit. Um, I was told this, that that was because of my history of being a combat veteran.
Ah, fuck me, I drove bulldozers in Afghanistan, mate. But, um, yeah, so part of their administration process was to cancel my firearms licence and my guns were impounded so that's why. Um, I put in an appeal, my psych has written multiple letters, all he, he's filled out their paperwork, and he's written another letter...stating that he believes me to be of sound mind. I've been with him for four years. He knows me better than...a lot better than my wife, better than anybody...I have every idea that it's gunna come back to me. Um, I don't know, but that's why it was suspended, was because I was put into a psychiatric intensive care unit and released 12 hours later. They said...just spend the night there. Um, but it's part of their administration process. They cancel your firearms licence."
The appellant was then asked questions about the finding of ammunition at the hobby farm at Merriwa and the appellant went on to admit that that was probably left there. That in the past he had used firearms to go hunting, but the only firearm that he currently held was an antique duelling pistol, which he told the police was at his home and had been manufactured before 1901.
Later in the interview, in answer to Q 108, the appellant said this:
"I was just gunna say...with the ammunition, we were under the...idea that my wife still had a firearms licence, so we found out when they went to, when her licence expired, that they told her that it was cancelled. They never sent her a reminder notice or anything like that, so Laani doesn't have a firearms licence anymore. That's why we didn't think we had to get rid of the ammunition, you know, I just knew that, I know that there was ammunition around...but I didn't think we had to get rid of it, because Laani was a licensed shooter."
In cross‑examination in the Local Court the complainant gave this evidence:
"Q. In respect to the firearms licences you had discussed that my client didn't have a licence at the time police attended the premises, correct?
A. Correct.
Q. You discussed renewing your licence because you were also licensed, correct?
A. Yes, I was, correct.
Q. You discussed renewing it because there were weapons or firearms and ammunition in the house, you discussed that?
A. We did discuss it, yes.
Q. You were planning on renewing yours so you could keep the firearms and ammunition at the house, correct?
A. No, James sent me the renewal forms and I didn't fill them out because I was concerned and didn't want them there, to be honest.
Q. But you never conveyed that to him, correct, he sent you the forms, correct?
A. I thought he would get angry with me if I told him.
Q. What I'm getting at is he sent you the forms?
A. Yes.
Q. He told you, or you had agreed, at least to his knowledge that you were going to renew, correct?
A. Yes.
Q. You never communicated to him 'I'm not renewing these', you just thought that to yourself?
A. Yes, that's right."
I assume that the name "James" used by the complainant was a mistyping for the abbreviated form of the appellant's first name, Joe.
On this issue Magistrate Donnelly said this:
"Turning to the charge of possession [of] ammunition, the defendant relied upon a Proudman v Dayman defence that he honestly thought that a particular form had been filled out. This defence was raised without any reference to relevant legislation. It is complex legislation. Legislation, that is, a common law concept, but I do not accept that he thought that the form was filled out because he gave the forms to the complainant. This should exculpate him of the offence. It might have been a mistake, but it was not a reasonable one in the circumstances. Therefore I find him guilty of that offence."
The offender's firearm licence had been suspended by the authorities because of the offender's admission to a psychiatric hospital on a purely temporary basis. The circumstances in which his licence was suspended were explained by him in the electronically recorded interview with the police. They are wholly acceptable. There was ammunition that had been used, which at the time that the appellant's firearms were taken from him the ammunition was not taken, probably because it was not in the firearms' safe.
But his wife was a registered shooter. He and she had discussed her renewing her licence so that it was not necessary to get rid of the ammunition. She said that she would, but she had no intention of doing so but did not communicate that to the appellant.
With the utmost respect to the learned magistrate, many men rely upon their wives to "run the household". For example, when I was growing up my father would come home each Friday evening and give his wages packet to my mother, in days when people were paid in cash. She took control of the family income, my father's wages, and she paid all the bills and outgoings and paid for, for example, the groceries and the like. A small amount was returned by her to my father to enable him, for example, to buy a beer after work on his way home from work. It is very common for ladies in Australia to "run the household" and for their husbands to rely upon them. Indeed one of the purposes of marriage is to enable men and women to rely upon each other to act in concert with each other for their mutual good.
It appears to me to be entirely reasonable that when the appellant's wife had a firearms licence and it was due to be renewed and he provided her with the renewal forms and she told him that she would renew it, that he relied upon her to do so. He did, but she did not renew her licence as he had anticipated. In those circumstances it appears to me that he had not only made an honest mistake, but he acted reasonably in doing what he did.
Accordingly, I set aside the conviction recorded and sentence passed in respect of the charge of possession of ammunition without holding a licence or permit to do so, the offence known as sequence 5. The penalty imposed was a fine of $900. That fine is set aside.
[4]
Domestic Violence Offences
His Honour set out further background material and then turned to the Crown case concerning the allegations of stalking/intimidation and assault occasioning actual bodily harm. The two charges of assault run hand in hand. There was one episode of interaction between the appellant and the complainant which appears to have been artificially broken up so that it became two charges of assault, rather than one.
His Honour's consideration of the Crown case was based almost entirely on the assessment of what the complainant said about the circumstances of the interaction between the complainant and the appellant that could be described as the episode of domestic violence. Likewise his consideration of the defence case on that issue was based purely on a consideration of what the appellant said about that interaction.
His Honour made some comments which indicated that he thought that much of what the appellant said was implausible. For example, at p 9 line 30, the transcript of 18 December 2020, his Honour said this:
"Having assessed all the evidence, I do not accept that defendant's version because it is implausible. Even if I accepted his version of events, I do not accept placing the complainant in a stress position was a reasonable response to the circumstances as he perceived them because [X] had left the room. It has been held that if a person believes any risk of harm can be dealt with by withdrawing generally, that belief would be inconsistent with the belief that conduct of the nature of the assault was necessary for defence, see Sivaraja v The Queen [2017] NSWCCA 236 at [125] and [144]; Colosimo v DPP [2006] NSWCA 293 at [19].
In essence the stress position was not a reasonable response. I find the prosecution have proved beyond reasonable doubt he did not act in self-defence. Once his version is rejected, the evidence of injury to the complainant is very powerful evidence because of how and where she said the injuries were inflicted. I find that the credibility attacks on the complainant did not substantially undermine her credibility as a witness."
The only attack on the appellant's credibility that his Honour had earlier referred to was this:
"Under cross‑examination it was put to her that she exaggerated her evidence, had a motive to lie, was not believable and the question of whether she was angry about the Facebook post and also her concerns for the safety of the children with the defendant. That was implausible given he was normally at home with the children. The complainant made a complaint at 2pm to Senior Constable Huebner at Muswellbrook Police station, see exhibit 1. The officer gave vague evidence, but I think the exhibit itself could be accepted as evidence of complaint, combined with the complainant's account, that evidence while fresh in her memory and her out of court complaint, can be used for the truth of what she says to support her credibility on the basis that she acted in a consistent manner and like a person who had been assaulted, see Papakosmas v The Queen [1996] HCA [sic, scil. (1999) 196 CLR 267] and the Court of Criminal Appeal decision of BD [R v BD (1997) 94 A Crim R 131]."
That is merely a summary of matters of challenge to the credibility of the complainant, but does not deal with the very issues raised by the defence. For example, it is clear that the appellant did make a statement to Senior Constable Huebner at Muswellbrook Police Station about 2pm on 20 December 2019. However, the point of the challenge was that she had left Denman, where there was a police station and did not stop to complain there, and then she had driven through Muswellbrook, where there was a police station but did not complain there, but drove on to Singleton, before attending the police station in that town and making her complaint.
The appellant, as I said, gave a voluntary interview to the police. It contains this matter which I am going to recite in full because it details certain matters of background which were not adequately canvassed in oral evidence, mainly because the appellant adopted what he said in the record of interview in his sworn evidence and said that what he told the police was true. I shall omit quoting the usual utterances recorded in a live transcript, the "aahs" and "ums" and "ers" and the like:
"I met Laani ten years ago when I was in the army with her. She was in the army also. We discharged together and got married six years ago. Got three kids. [X]'s five and a half, [Y]'s three and a half and [Z]'s two and a half. So three years and four days between the three of them. I'm retired, ex-serviceman retired, medically retired. I'm just primary caregiver for them for the last two years that I've been at home. Me and Laani don't - well, when I got retired, Laani, in my opinion, just turned her back on her family and left and has been pursuing her own interests ever since.
We don't have a good marriage. It's a very abusive marriage. I find myself financially abused. Laani doesn't allow me to meet her friends or her colleagues. She graciously donates $300 a week to the family, which is the income from one of her jobs. She has three jobs and she keeps the other income to herself. That requires me to use all of my pension and, up until recently, when it ran out, savings that I had from my compensation payments to buy food and pay bills, and things like that, as a result of being unable to leave the home. I can't afford fuel. I can't get to my farm to work. I can't take the kids anywhere. I'm a stay at home dad that's stuck at home.
I get abused regularly. I've been hit by her, now on two occasions. The first being about, just before [X]. What's that, I'd say six years ago she ripped a chunk of my hair out and punched me in the face. This was when she was drunk. I told her then and there if she ever hit me again, that that would be the end of our relationship, and we are at the end of our relationship.
Q. We're here because of an incident that allegedly happened on Friday, 20 December 2019. Is there anything you want to tell me about that incident?
A. Absolutely...it goes back further than that. It goes back to 7 December...I remember that date, because of my eldest daughter's birthday. I wasn't allowed to mention her. We went to - my wife's a member of the New South Wales Fire and Rescue. We went to their Christmas party. At the end of the Christmas party - well, actually, the people were complete dicks the entire time. I had one bloke leading my son around a bend on sexual double entendres and playing on his innocence. I obviously put a stop to that. I sat there and started talking to him, and he started on me, and I didn't really enjoy that. But at the end of the night, that same man and his wife were travelling home and my wife decided that she could throw our three kids, unrestrained, into that car and drive home with them.
I voiced my obvious objection to it. I was told it was only 200 metres. I said, 'That's all the more reason to walk', but they did it anyway. Laani told me the day before this incident that I was such a dickhead over it that people were wondering whether she was going to be okay or whether I was going to go home to beat her. When I asked her whether she stood up for me and said that, that's not the person that I am or the case, all she said was, 'He's never hit me'. I didn't think that was the sort of support you needed from your wife and it really ate at me.
So later on that day I posted up on the Denman community Facebook page that, in no uncertain terms, I did not beat my wife and that I was really disappointed in the actions of our first responders and I named names because of this incident. And thought that, considering their role in the community, that their focus would have been on the three unrestrained children, not with the husband trying to stop it from happening, or the father...trying to stop it from happening. The post was taken down within about a minute, but it got to the people that needed to know, and I started getting text messages [saying], 'How dare you, you [have] got no respect. I've basically said, did it happen? Should you know better? I don't regret it. I would have done it again.
When Laani came home that day she came home two hours early from work, and she was pissed...off, not drunk. She told me she was leaving, the relationship was over and we're getting separated and all the rest of it. I said, okay, no worries. I said - I was actually vacuuming when she came home, and I said, 'Well if you're home early I'll go out to the farm and fix the pump' because our bore had been broken and we had run out of water. And my young son [X], my eldest, he's four and a half, he piped up and said, 'I'll come with you, dad'. I said, 'Yeah, righto, mate, in you come.' He often comes to the farm with me, it's what we do. He rides his little bike around. He has a great time.
Well, Laani refused and said, 'You're not going' and I said 'Why?', and at that point she became irate and she was screaming at [X], 'You're not going anywhere with him, you're not going anywhere with him,' and [X] is getting quite upset and he ran into his bedroom, and Laani ran in after him, and she was grabbing, she was sitting on the floor grabbing at him. He was struggling to get free. She basically rag‑dolled him and I walked in, I was standing at the door and I said, 'Let him go, what are you doing? Why are you doing this? Just calm down. We're just taking him to the farm. He's not going anywhere with you. Who the hell are you? I'm his father.'
So at that point [X] wriggled free and he went to bolt and Laani lunged after him. I stood in front of her and said 'Run boy' and he shot out the door. Ran outside...into the garden and hid under a bush. Laani went to run after him and I stood in her way, so she shoved at me and grabbed me on the shoulders, and I grabbed her on the shoulders and we had like a bit of a scrum sort of thing...well, actually that broke up, because she went for my neck, right here. And so I pushed her off me and stood back, and then she went to go again, so I stood in front of her and she tried the same thing, to push me towards the window, so I pushed back and then she was next to [X]'s drawers...she was standing there and she started screaming at me, 'Go on, go on, cunt, fucking hit me, fucking hit me. I want you to hit me. Go on hit me. I'll have the cops around here in a second.'
I said to her, 'I don't want to hit you, love,' and I kissed her on the nose. And she lost it, so she went to run out the door after [X] and I grabbed her around the waist, both hands, and at that point she lunged backwards, pushing me through the wall. She smashed me right up against the wall...you guys have seen the hole [in the wall]. I held onto her. She went to run again and then she went to slam me up against the wall again, and I pushed forward that time and I put my hands up underneath her arms and over her head in fort [? in front]. I don't know what you call it these days, but when I was in the army it was called a Stress Position, and she starts screaming, 'Don't you dare put me in the Stress Position'.
[She] put a foot on the boy's bed and threw me back into the wall again, so I sat down and held on. She went down as well and I said, 'I'll let you go as soon as you calm down,' and she started screaming, 'I'm going to kick you in the fucking head, cunt.' I said, 'I know you are, babe, that's why I'm not letting you go until you calm down,' and within, I don't know, ten, 15 seconds, she sought of calmed down. I couldn't hold on to her anymore anyway. So she calmed down, so I let her go and she made a beeline straight out the door, so I followed her, it's the front door. [X] was hiding under a bush, and she couldn't see him so she ran straight past him, but I saw him. And again we were probably about 10 metres away from where [X]'s hiding. I was about 2 metres from Laani and I was just standing there so she couldn't get back to him.
At this point [X] was screaming, 'Leave me alone, leave me alone, go away, leave me alone, leave me alone.' Laani was still screaming at him, 'You're not going anywhere with him, you're not going anywhere with him. [X], you have to stay here.' I was still staying, 'He can go to the farm if he wants.' 'Who are you, who do you think you are?' I said, 'I'm his father'. Then [X] started screaming, 'Help me, daddy, help me, daddy, help me, daddy,' so I walked away from Laani, ran over, picked him up from underneath the bush and went down. She was still screaming, 'You're not going anywhere, you're not going anywhere." So I went down, I unlocked the front gate. I said, 'You can't stop me, he's my son, I'm going, I'm getting out of here.' So she then grabbed my young son and ran inside with him. I got in the car and left.
When I got home that evening Laani wasn't there and I had assumed that she had gone to her work Christmas party because that was booked in that night, and I had already told, me and the kids weren't going to attend because the same bloke that was at the RFS, the firies one, it's his father's company."
The description goes on, but that encapsulates what the appellant said happened.
The magistrate summed up the complainant's evidence in this fashion:
"The complainant's account was that...when she returned home...[X] was in distress and angry and he did not understand why he could not go to the farm. Her account was that she had got down to her knees and hugged him and was cuddling him when then defendant walked up and put his hands on her shoulder from behind. The complainant said, 'He grabbed me with his hands on top of my arms'. She described his right hand on her right arm and left arm on her left arm from behind and just between the shoulders and the biceps. It was the complainant's account that the defendant pulled her up and she got carpet burns on her knees as he was pulling her up and dragging her up. She testified that she also got scratches on her arms whilst he was holding her tightly.
She said that she was still cuddling [X] because her arms were still pinned to the side of her body. She got carpet burns on the knee and a big scratch on her bicep. She testified that she tried to get out of the defendant's grasp and in the end she spun around, facing him, and he had hold of her shoulders. She switched from front to back and then slammed her against [X]'s bed. She said she was pushed into it, he pushed her back against - she testified at this stage that the defendant was really angry and full of rage.
After that point she said something changed in his face and he regained his grip on her arm and lift her up from her chin to her forehead, and said something like, 'Drop dead, bitch', then shook her and slammed her up against [X]'s bed. She used the expression in Court 'like he threw me away'. She described the stress position in her evidence whereby the defendant put his arms under her outstretched arms and placed the palms of his hands on the back of her head.
She stated in her evidence that the stress position is one of the positions from their army training. She said at this stage she started to panic, she could not move anywhere and could not do anything. She said she dug her heels in and forced both her and the defendant back into the wall. It did not work, she tried three times. She said each time she tried to struggle to get free, the defendant would press hard against her head, and her chin was pushed towards her chest and forced down until she slid down the wall and her head was between her legs and her legs outstretched on the floor. She repeated asked the defendant to let go.
One of her sons, [Z], then came up and asked if she was okay. She gave him a little smile. At that stage [X] turned to exit the house. She said [X] was out hiding in a bush. She said the defendant was still angry, he was really distressed. Then the defendant put [X] in the ute and reversed up the driveway and set off. She identified photographs admitted as exhibit 16 of the carpet burn, scratch to her biceps and red marks to her arm."
His Honour then set out the challenges the complainant made under cross‑examination which I have already quoted. His Honour then set out the contents of the photographs, then directed himself in law that the actual injuries that had been photographed might be taken to be corroboration of an assault and relied upon R v Beryl [1982] QR 508 and two unreported decisions of the Court of Criminal Appeal. His Honour then turned to the defendant's evidence, which I have quoted in length from the ERISP.
When his Honour recited the direction by the appellant to X to "run boy", the learned magistrate made this comment, "That is encouraging your son to run away." That appears to me to be a pejorative comment and there was no suggestion ever made that the appellant was asking his son to run away from the family home, rather he was telling his son to leave the room because of the argument between his parents and the fact that he was receiving what the appellant perceived to be unwanted attention from the complainant.
There are a number of things that were not the subject of any comment by the magistrate. In chief the complainant was asked about the early interaction as it happened according to her. She said at T3.43 this:
"At that stage he proceeds to pull me up and I get carpet burns on my knees as he's pulled me up and dragging me up and also scratches on my arms because he was holding me tightly. As I have come up I was still cuddling [X] because my arms were still pinned to the side of my body from the way I have been held."
I find it very difficult to understand how one could get carpet burns on one's knees as one was being pulled up, not being pulled along the carpet. Furthermore one will immediately note that there is hyperbole involved because the evidence only shows one scratch on one arm, not scratches on each arm. The scratch involved is on the left arm and can be seen in one of the photographs in exhibit 16 in the Local Court. The left arm is not shown in a proper anatomical position, but the scratch appears to be on the anterolateral surface of the upper left arm from about 2 inches above the antecubital fossa heading towards the acromioclavicular joint or perhaps medial to the acromioclavicular joint, but clearly well short of it. The scratch appears to me to be about 4 or 5 inches long; that is about 11 centimetres.
Before she drove home on 20 December, the complainant drove to the day care centre where the couple's daughter Y was being minded. The complainant had dropped her off there for the day. In her evidence‑in‑chief the complainant said:
"I told them that I was not feeling so good about things at home and I wanted to make sure that [Y] was safe and stay there until I could come back and pick her up, so I then went home and went into my bedroom and put my bag down."
In cross‑examination the complainant said that she visited the day care centre because she was so concerned for her daughter's safety and that she was "walking into an unsafe situation". She said that she physically attended the day care centre because she "knew the appellant wasn't stable", meaning, I assume, that his mental state was unstable. No doubt she formed that view from the download that had been made by the appellant on the Denman community Facebook page concerning his interaction with the Fire and Rescue personnel on 7 December. She confirmed that the situation was "unsafe" or unsocial because of the Facebook page which the complainant said as she could "feel the rage in it", which is her description of whatever it was that the appellant had posted on the Facebook page. The actual post was never put before the Local Court, nor has been put before this Court. It was obviously taken down quickly, but it is possible that somebody took a screenshot of it. Certainly it appears to have been drawn to the complainant's attention if she could "feel the rage in it".
When challenged as to why she did not travel to the closest police station but instead went to Singleton Police Station after collecting Y, Singleton being about 55 kilometres by road from Denman, the appellant said that she did not go to the closest police station because she was heading to her friend's place afterwards and that friend's place was in Singleton. She also agreed that she had her mobile telephone with her, but made no telephone call to any police station or to 000.
In cross‑examination the complainant denied that she was enraged by the Facebook post and denied that she left work early to take up the matter with the appellant. That itself has an air of implausibility about it. Between 7 December and 19 December 2019 there is no suggestion of any actual disharmony between the appellant and the complainant. There is no evidence the complainant had concerns for the safety of any of her children. It appears that her dropping Y off to the day care centre was routine and that X and Z were left in the care, control and management of the appellant on workdays between 7 and 20 December without the complainant having any concern for their safety.
The only thing which appears to have triggered off a reaction was the posting made by the appellant on the Denman community Facebook page criticising someone or people working for Fire and Rescue in Denman, following upon the appellant's concerns for his children's safety that he mentioned in the recorded interview with the police. Everything points to a sudden change in attitude and temperament of the complainant to the appellant following upon the Facebook posting which he made. Furthermore, there is no suggestion that the appellant did not leave her place of employment earlier than anticipated.
The complainant accepted wanting to get to the bottom of the reason why the appellant posted what he had posted on the Facebook page, but then said that it was "getting very argumentative" and also said, "I don't want to talk about it right now," despite having agreed earlier that she wanted to deal with the situation caused by the post. Again she reiterated in cross‑examination that she did not want to talk about the post "in an angered state". However she eventually agreed in cross‑examination that she did discuss the post with the appellant. She maintained her denial of being angry or even having a heightened mood when she blocked the appellant's path to Leroy, saying that she was concerned for his safety because of the state of mind of the appellant.
It is common ground, however, that the appellant had said that he was going to the hobby farm and that X could go with him, and that X wanted to do so. X appears on any objective view of the matter to have been upset when the complainant said that he could not go with his father to the hobby farm. No such embargo had been placed on an interaction between the appellant and X prior to her being informed of the posting of the message on the Denman community Facebook page that led to her concern for the appellant's "sanity", to use the word bluntly, that was referred to elliptically in the evidence.
The complainant agreed that she had been training as a body builder, attending five or six gym sessions each week, and that she was quite strong and fit for her size. She agreed, after repeated questioning, that she did not know what specifically had caused the scratch to her biceps. That can be found between T23.30 to T25.26. She accepted that she could not recall everything that was said in her interaction with the appellant, but denies that she said "Go on hit me, cunt, fucking hit me" to the appellant.
In her evidence she mentioned that the appellant licked her face from the chin to the forehead. If I may be so bold, each of the appellant and the complainant mentioned an act which I could describe in Latin as facilingus. The appellant has it as kissing the complainant on her nose, the complainant has it as the appellant licking her from her chin to her forehead. However, the complainant did not mention that action or the appellant saying words "Drop dead, bitch," when she was interviewed by Senior Constable Huebner, commencing at about 2pm on 20 December 2019. She said that she was distracted in making that statement by having to care for her children at the police station whilst the statement was being typed, and in essence that she "forgot about it". That raises the vexed question of "recovered memory".
In cross‑examination she denied ever being angry with the appellant, despite the fact that she admitted that ramming the appellant into the wall caused the wall to be broken. There is in exhibit 10 a photograph of the broken wall in X's bedroom. One of the criticisms raised by the appellant's solicitor is this:
"Despite initially answering 'No, I didn't say that,' when asked whether she told the appellant 'Don't put me in a stress hold,' again saying 'No' when asked 'You never mentioned the term stress hold or anything like that' (T30.7-14), the complainant then agreed that she did remember saying, 'Don't you dare put me in a stress position'. She was unable to provide a reason why that was not in her statement (T32.14-18)."
Eventually at T33.48 she agreed that X had thrown a tantrum despite having earlier in her evidence denying that that was the case.
Everything points to the complainant being, to use neutral language, very concerned about what the appellant posted on the Denman community Facebook page, criticising her work colleagues at Fire and Rescue. That appears to have caused her to form the view that something was amiss in the appellant's mind, that suddenly there were concerns for the safety of her children, and if that be the case one could understand her objecting to X going with his father to the hobby farm, and one can accept that X enjoyed doing that and was upset when the prohibition was imposed by his mother.
However, when I look at each case, if the implausibility as identified by the learned magistrate be correct, there are greater implausibilities in the complainant's version. At the end of the day all that need be said is that I am persuaded that the position put forward by the appellant in the ERISP is a reasonable possibility of what occurred. Therefore the Crown has failed to prove its case beyond reasonable doubt.
The learned magistrate in my view did not adequately contrast and compare the conflicting stories, and analysed more closely the defence case than the Crown case, when in fact he was required by law to do the exact opposite. For those reasons I set aside the convictions recorded and sentences passed by the Local Court sitting at Muswellbrook on 18 December 2020 in respect of an allegation of common assault, sequence 6, of intimidation, sequence 7, and of assault occasioning actual bodily harm, sequence 8, and the sentences imposed for those offences at the Local Court at Muswellbrook on 22 March 2021.
[5]
Severity appeal
The remaining issue concerns the severity of sentences passed in respect of offences to which the offender pleaded guilty. When the police attended the family home at Denman they searched the house for firearms. I do not know what caused the police to search the house for firearms. It may be because the appellant had previously had a shooter's licence which was suspended for the reasons that he told the police later. It may be because the complainant herself had a shooter's licence which was not renewed. They did not find any firearm, but they found an amount of ammunition located in a cupboard in the accused's bedroom. I do not know why they used the word "cupboard", if the police meant to describe a "wardrobe".
When the police found that they contacted the appellant, who attended the address at the same time as the accused was conveyed to the Muswellbrook Police Station. When the complainant arrived she also searched for firearms and then walked to the rear garden shed, where the police had previously located a gun safe.
The complainant walked straight to the back corner and located a crossbow which she handed to the police. In other words the complainant knew of a crossbow in the rear garden shed, which she gave to the police. The complainant then walked to a wooden wardrobe-type cupboard which had a number of electrical leads going into it. Senior Constable Michael Power checked inside the cupboard and located a number of cannabis plants and other items which were depicted on a body worn camera. In other words the complainant led the police to this cannabis "plantation". One of the photographic exhibits in the Local Court was Exhibit 11 which shows roughly ten cannabis plants with their root structure, but the plants are less than 6 inches high. With the ammunition found in the "cupboard" in the appellant's bedroom, the police found a set of handcuffs. These handcuffs had been obtained by the appellant when he was in the army, when he was stationed at Amberley, and he had taken them with him to Afghanistan and he had brought them home. They were, in essence, a souvenir.
In respect of the charge of cultivating a prohibited plant, the Local Court imposed a conditional release order for a period of 12 months. One of the conditions being that the appellant was subject to supervision by Muswellbrook Community Corrections District Office and he had to undertake drug and alcohol counselling as directed by Community Corrections, and must comply with any reasonable direction for treatment given to him by any psychiatrist, psychologist or general practitioner.
In respect of the possession of the prohibited weapon without a permit, namely the crossbow, the Local Court imposed a fine of $100 and a Community Corrections order for a period of 12 months. In my view in the circumstances of this case that penalty was excessive. I set aside that penalty and in lieu thereof sentence the offender to a conditional release order for a period of 12 months.
In respect of the possession of a prohibited weapon without a permit, namely the handcuffs, the Local Court imposed a Community Corrections order for a period of 12 months, again with the same additional terms imposed for the cannabis offence, which in the circumstances is inappropriate. Considering the circumstances in which the appellant came into possession of the handcuffs, in my view the matter should be dealt with under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. I point out that the learned magistrate accepted that the appellant was a man of prior good character when he stood for sentence.
I make the following orders:
1. Sequence 1: appeal dismissed;
2. Sequence 3: I set aside the penalties imposed by the Local Court at Muswellbrook on 22 March 2021;
3. Sequence 3: Under s 9 of the Crimes (Sentencing Procedure) Act 1999 I order that the offender be released on a conditional release order for a period of 12 months from today. The conditions of the order are as follows:
1. You are not to commit any offence; and
2. You are to appear before the Court if called upon to do so at any time during the term of the conditional release order.
1. Sequence 4: I set aside the conviction recorded and sentence passed by the Local Court at Muswellbrook on 22 March 2021. Under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, without proceeding to a conviction but having regard to the appellant's prior good character and the extenuating circumstances of the offence, I am satisfied that it is inexpedient to inflict any punishment. I order that the charge be dismissed;
2. In respect of sequences 5, 6, 7 and 8: I set aside the convictions recorded by the Local Court at Muswellbrook on 18 December 2020 and the penalties imposed by the same Local Court on 22 March 2021.
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Decision last updated: 17 March 2022