Vagelis Kandalepas (the appellant) appeals against the convictions for the offences of Damage Property, two counts of Common Assault, and two counts of Intimidation entered by his Honour Magistrate Bartley at Newtown Local Court on 19 May 2023. The appellant brings the appeal as of right.
The appellant and the complainant had been in an on-again-off-again intimate relationship. The complainant had been working at a restaurant in Beverly Hills and finished her shift at about 1.00am on 26 January 2020. She agreed to meet the appellant on her way home at a service station on the Princes Highway at Sydenham. When the appellant arrived he sat in the front passenger seat of the complainant's vehicle. The pair had a conversation that developed into an argument.
The prosecution alleged that the appellant punched the windscreen of the vehicle a number of times causing the glass to smash (sequence 1 destroy property). The appellant continued to argue with the complainant and he poked her with his finger causing her to feel scared (sequence 2 common assault). The complainant said to the appellant "you just smashed my Dad's car" to which he responded, "so what, I'm going to smash you and your Dad and your car. I'm going to smash everyone, your whole family" (sequence 3 intimidation). While the argument continued the complainant turned on the ignition of the vehicle, at which time the appellant leaned across her and grabbed the key out of the ignition causing the key chain to break.
At about 2.30am, an independent witness, Mr Houlbrook-Walk heard loud noises coming from the vehicle. When he approached he saw the appellant punch the windscreen a number of times. He approached the complainant and asked if she needed help and she nodded her head. The appellant got out of the vehicle and walked towards Mr Houlbrook-Walk and said, "take a walk, I'm going to fucking launch you" (sequence 4 intimidation). The appellant continued to walk towards Mr Houlbrook-Walk placing his forehead on the side of Mr Houlbrook-Walk's face (sequence 5 common assault).
The appellant denied the charges. He gave evidence that when he first arrived that he and the complainant had a general catch-up and conversation. He then returned to his van to smoke a cigarette and when he did so he had a telephone conversation with a friend. When he returned to the complainant she became irate and demanded to know if he had called a female. She then hit him on the forearm. He reached for his mobile phone to video what was happening, but the complainant snatched it away from him. The complainant resumed hitting him and he placed his hands in front of himself to stop her, in the course of which his hands made contact with the windscreen and it broke. The parties calmed down and he walked towards the service station to buy a bottle of water. When he returned he saw Mr Houlbrook-Walk stumbling around drunk. He asked him what he was doing and where he was going. The appellant extended his arm towards Mr Houlbrook-Walk to stop him from falling over but did not make physical contact with him. After this the appellant turned around without going into the service station and went back to the complainant to see if she was all right before leaving in his van.
The appellant submitted that the key issue in the appeal was credibility of the witnesses.
In relation to sequence 1, the appellant relied on a temporal inconsistency in the prosecution case. The complainant gave evidence that the punching of the windscreen occurred early in the interaction, which was by necessity some time before Mr Houlbrook-Walk arrived on the scene. Mr Houlbrook-Walk gave evidence that he saw the appellant punch the windscreen and that the two versions could not be reconciled. This became a central plank in the appellant's argument that the complainant's evidence was unreliable.
In relation to sequence 2, the appellant submitted that there was no independent evidence of the allegation and there was limited complaint about "poking" to the investigating officer or in the 000 call.
In relation to sequence 3, the appellant submitted that the complainant did not make a complaint to the investigating officer or to the 000 operator to the effect that she had been threatened and that ultimately, Mr Houlbrook-Walk conceded that he did not hear any threats contrary to what he told the 000 operator.
In relation to sequences 4 and 5, the appellant submitted that the evidence of Mr Houlbrook-Walk and the complainant was inconsistent in a number of respects.
[2]
Relevant Law
The applicable principles to be applied in determination of the appeal are as follows.
[3]
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 judgement 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).
[4]
Analysis of the Magistrate's Reasons
The Magistrate reserved his decision and delivered a well organised and comprehensive judgment. The Magistrate gave himself all of the necessary warnings relating to the fact finding exercise in a prosecution of the kind he was dealing with. The Magistrate set out an accurate summary of the evidence given by each of the witnesses. The Magistrate made detailed credit findings based on the content of the evidence of each of the witnesses. He made accurate and telling notations of the attempts by the appellant to explain how the windscreen was broken. He was in a far superior position to assess the credibility of the witnesses and did not make any finding that suggested that he misused that advantage.
The Magistrate found that the complainant was a "forthright, honest and impressive witness who gave generally cogent and compelling evidence". The Magistrate found that she gave an internally consistent version on the central issues.
The Magistrate found that Mr Houlbrook-Walk was an independent witness who made appropriate concessions and did not exaggerate. The Magistrate found him to be a frank and honest witness, whose evidence about the offences against him was cogent and compelling. The Magistrate rejected the suggestion that Mr Houlbrook-Walk tailored his evidence to be consistent with the complainant's evidence.
The Magistrate found that the appellant gave a number of different versions of how his hands or fists came into contact with the windscreen. The Magistrate rejected each of the alternate versions put forward by the appellant and was satisfied beyond reasonable doubt that each of the explanations could not explain the damage to the windscreen. The Magistrate rejected the appellant's evidence on this issue, describing it as "incredible".
As to sequence 4, the Magistrate found that the evidence of the complainant partially corroborated the evidence of Mr Houlbrook-Walk and that the appellant's evidence was "scarcely credible and partly incoherent". The Magistrate found the evidence of the appellant to be completely unreliable and rejected it. He found that the prosecution witnesses both recalled the appellant saying "take a walk or I'm going to launch you" and was satisfied beyond reasonable doubt that sequence 4 was established.
The Magistrate did not accept the appellant's evidence as to the state of Mr Houlbrook-Walk's intoxication.
As to sequence 5, the Magistrate found the appellant's evidence that he tried to assist Mr Houlbrook-Walk as "not credible". He set the appellant's evidence aside and accepted Mr Houlbrook-Walk's "frank and honest" evidence that the appellant pushed his head against Mr Houlbrook-Walk. He rejected the evidence of the complainant that the appellant pushed Mr Houlbrook-Walk causing him to fall to the ground. The Magistrate concluded that he was satisfied beyond reasonable doubt that sequence 5 was established.
As to sequence 1, the Magistrate noted that there was an inconsistency in the timing and sequence of the events between the evidence of the complainant and the evidence of Mr Houlbrook-Walk. The Magistrate found that he had a reasonable doubt as to whether Mr Houlbrook-Walk saw the appellant punch the windscreen but was satisfied beyond reasonable doubt that he did so on the basis of the complainant's evidence after giving himself a Murray direction.
As to sequences 2 and 3, the Magistrate found that the appellant's evidence providing an extensive recall of the conversation that took place between the complainant and the appellant to lack credibility. As to his evidence overall, the Magistrate found the appellant to be a "most unimpressive witness who gave very unreliable evidence". The Magistrate rejected the appellant's evidence and set it aside. The Magistrate returned to consider the complainant's evidence and accepted her evidence as truthful.
Having conducted an independent review of the evidence, I am satisfied that it was open to the Magistrate to find as he did, and he was correct to convict the appellant of each of the charges. I have little hesitation in saying that the appeal lacked any merit.
However, in relation to sequence 1, I am of the view that he should not have rejected the evidence of Mr Houlbrook-Walk that he saw the appellant punch the windscreen for the following reasons. First, it was not appropriate to treat the content of the 000 call and what she said to the investigating officer as "complaint evidence". At those times, it is unlikely that the complainant understood that she was being asked to give a complete and accurate recitation of the events that took place. The time for that was in her DVEC, which was a more fulsome account. Second, in her DVEC she stated that the punching of the windscreen occurred at the time when Mr Houlbrook-Walk and his friend were walking past, at which time she tried to turn on the ignition to wind down the window to get their attention. In my view, the version of timing of the events that were the subject of sequence 1 that she gave in her DVEC was more reliable and it was corroborated by Mr Houlbrook-Walk's evidence.
[5]
Consideration
For the sake of completeness, I will return to deal with the appellant's arguments.
As to sequence 1, as the Magistrate stated, human memory is fallible and it is common for witnesses to mix up the order of events especially where they experience stressful and traumatic events of the kind that the complainant faced on the night of the offences. As was demonstrated in relation to the Magistrate's findings on sequence 5, the complainant's evidence was not perfect. However, her version of events in relation to sequence 1 was corroborated by the eyewitness account of Mr Houlbrook-Walk. The Magistrate was correct to reject the appellant's version as fanciful. It was open to him to accept the complainant's version beyond reasonable doubt, and I agree with his conclusion. For the reasons given, he should also have accepted Mr Houlbrook-Walk's evidence which wholly corroborated the complainant's version and provided further strength to the beyond reasonable doubt finding.
As to sequences 2 and 3, the appellant's complaints were put forward on a false premise that what she told the 000 operator and the investigating officer at the scene was expected to be a complete account against which the evidence given in her DVEC and in the witness box could be tested. It was open to the Magistrate to reject the evidence of the appellant and to accept the evidence of the complainant. He did not simply prefer the evidence of the complainant but correctly applied the Liberato direction.
As to sequences 4 and 5, the appellant relied on the inconsistencies between the evidence of the complainant and Mr Houlbrook-Walk. For sequence 4, the Magistrate found that that the witnesses corroborated each other and that their agreement was recorded on the 000 call. The appellant's complaints about what the complainant did or did not see, do not rise above pedantry. For the reasons given, in relation to sequence 5, it was open to the Magistrate to reject parts of the complainant's evidence as he did, and to prefer the evidence of Mr Houlbrook-Walk. It was open to the Magistrate to reject the evidence of the appellant and to accept the evidence of Mr Houlbrook-Walk. He did not simply prefer the evidence of Mr Houlbrook-Walk but correctly applied the Liberato direction.
For all of these reasons, the appeal must fail.
[6]
Orders
The orders I make are as follows:
1. The appeal against the convictions is dismissed.
2. Appeal against severity is allowed.
3. I confirm the penalty imposed by the Magistrate except that I reduce the community service to 100 hours.
[7]
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Decision last updated: 25 September 2024