Logue v R

The appeal

1. Both parties provided written submissions. There is no issue as to the nature of this appeal, which, as provided for by s18 Crimes (Appeal & Review) Act and as has been made clear in numerous decisions such as Charara and Dyason, is a rehearing on the evidence before the magistrate, but with fresh evidence permissible with leave, as did occur in this case. In the Crown submissions the approach to section 18 appeal was taken from a decision of this court in Filip Black v Regina [2017] NSWDC 326 commencing at [10]: "[10] 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: Gianoutsos 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 section 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 judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. The powers of the District Court are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28]. The issue of whether or not error is strictly required before the District Court can intervene was considered but not decided in AG v Director of Public Prosecutions [2015] NSWCA 218. I have proceeded on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v Director of Public Prosecutions [2016] NSWCA 140 at [10] and Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 at [91]. 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 at [34] per Basten JA."
2. The appellants submissions set out a passage from KD v R [2020] NSWDC 237 which emphasises that the judgment appealed from will not be set aside unless the appellant judge is satisfied that the judgment is wrong.
3. To the submissions of the parties, which I consider well summarise the correct approach, I would only add a reference to the case of Lunney where it was held the Court is not obliged in every case to undertake a complete review of the whole of the evidence and form its own view of 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: Lunney v DPP [2021] NSWCA 186 at [44].
4. Based on the written submissions, the main issue in the appeal concerned the failure of the Crown to serve a BWV of the location of the alleged offence. That video was admitted as fresh evidence on the appeal and showed that the wall in question was a tiled wall, a finding the magistrate held she was unable to make on the evidence before her. The appellant maintained this was significant because it showed the complainant to be wrong in her evidence about which she had been quite emphatic, that the wall was tiled. The matter was therefore one which, on the appellant's argument, detracted from the complainant's credibility. Broader issues as to the credibility of the complainant were ventilated at the hearing, and the appellant also argued that the magistrate had failed to give herself a Liberato direction or if she did, had misapplied it, and similarly had not properly applied a Markuleski direction. The submission amounted to arguing that the magistrate was wrong to accept the police had satisfied the onus of beyond reasonable doubt, as the areas of inconsistency and other concerns as to the complainant's credit, in a case where she was the essential witness, were such that it is simply wrong to accept her evidence.
5. The position of the Crown was that the magistrate was correct in rejecting the version of events given by the appellant, and that she appropriately took into account the numerous challenges made by the appellant to the credibility of the complainant and gave cogent reasons why the complainant's version should be accepted. Whether or not the wall was tiled, the complainant was consistent that the location was that particular wall.
6. Dealing first with the rejection of the appellant's evidence, the reasons given by the magistrate are indeed cogent, so far as they go. Yet the conclusion reached rests on his conduct after leaving the complainant after the altercation, and his assertion of self-defence only when the complainant had made a complaint. Dealing with that last matter first, query how much weight to give a failure to allege self-defence in the absence of an allegation of assault? As to the appellant's minimisation of what occurred, that conclusion rests on what is considered to be minimised. The magistrate has considered the event to be far more serious than it actually was; this is not to trivialise the seriousness of the allegation, but to acknowledge that the injuries suffered are in fact modest at best, and the injuries that received the most attention at hearing, to the side of the head, were minor, and could more accurately be described as abrasions or small cuts rather than of splitting someone's head, let alone a head wound as the magistrate described it. Further still, the first thing the appellant said to Andree on returning from the complainant was that the complainant had fallen over. The magistrate plainly concluded that the accused was lying in both words and conduct at this time as to what had occurred. That is an open conclusion; the acceptance of Andree's evidence was also open, and it extended to be to the effect that he suggested someone else was involved. The error here, if there is one, is to reject the appellant's version entirely based on a non-acceptance of one part of his evidence. Other parts of his evidence, as indicated above, are consistent with the complainant; that she struck him, that she was injured, that he assisted after she was injured. Whilst the conclusion to reject his pretence when the allegation was made is sound, there has been no consideration of why there was this pretence, and whether the version he gives now as to what occurred, in the terms of a Liberato direction, might be true.
7. A common form of a Liberato direction is as follows: First, if you believe the accused's evidence obviously you must acquit. Second, if you find difficulty in accepting the accused's evidence, but think it might be true, then you must acquit. Third, if you do not believe the accused's evidence then you should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that you do accept, proved the accused's guilt beyond reasonable doubt
8. The reference to a Liberato direction in the magistrate's reasons was at T107: Of course, there were only two people in the villa at the relevant time; one was Nicole, and one was Mr Logue. They have each given widely conflicting accounts of what occurred. So it is important, in cases such as this - even if I disagreed or did not accept anything or some of what Mr Logue said - I still need to give myself a Liberato direction. That is because these cases must be proved beyond reasonable doubt, and the main Crown witness must be accepted as an honest and reliable witness.
9. If that direction was given to a jury it would be inadequate. The direction in that form does not emphasise that mere disagreement with the appellant's version may require acquittal, if it be the case that the finder of fact considers the accused's version of events might be true. That the appellant may have been lying to Andree does not necessarily mean that his version of events otherwise might not be true. Certainly however, the magistrate has properly directed herself that she still needs to be satisfied of the Crown case (although not stated, clearly beyond reasonable doubt), and that it is not enough to simply prefer the Crown case over the version given by the appellant.
10. For the purpose of argument, accept that the magistrate was right to reject the appellant's version. The magistrate then properly instructed herself as to the evidence of an essential witness.
11. A point taken by the appellant is that the magistrate failed to properly apply a Markuleski direction. I accept that submission. The direction is referred to by the magistrate after she determined that the complainant should be accepted as reliable. It appears at T118 immediately after finding the appellant guilty of the assault occasioning and not guilty of the intimidation and larceny charges, in the following terms: In saying so, I have given myself a Markuleski direction in not accepting her evidence about the taking and about the intimidation. But I still - for all those other reasons - find that her evidence should be accepted about the assault. And particularly where her evidence may raise a prima facie case of intimidation. But because of - and larceny. But - or - and taking. But because of those other legal elements that must be proved, that is the - part of the reason why those charges failed.
12. The direction is referred to after concluding the assault charge has been made out, and referred to in the process of dismissing two other charges. It is that dismissal, and the reasons for that dismissal, that need to be taken into account in assessing the assault, and that has not occurred. The Crown would argue that the magistrate dismissed the other charges for reasons other than the credit of the complainant, specifically, the scant nature of the evidence as to intimidation and a lack of evidence of his specific intent. Similarly, the magistrate was not satisfied that at the time the watch was snatched, that the appellant had the intent to permanently deprive the complainant of her watch.
13. With respect, these reasons are not very persuasive. The only evidence going to the two charges that were dismissed was entirely from the complainant. As referred to above the allegation concerning the watch, and in that connection also the phone, frankly do not make much sense. There has not been a proper consideration of the impact of the evidence concerning these charges on the reliability of the complainant as to the other charges.
14. The common form of a Markuleski direction is: Giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome. If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of the complainant's evidence, you would have to consider how that conclusion affected your consideration of the remaining counts.
15. The magistrate did not properly examine the evidence of the complainant as to the other two charges, and was therefore not in a position to properly apply the direction.
16. The approach to an appeal under s18 is set out above. One way of approaching it is in the way expressed by Justice Gageler (as he then was), as the "correctness standard" in Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1 which was his Honour's way of describing the standard being spoken of in Fox v Percy.
17. If for reasons of law, fact, or discretion, the decision arrived at below was not correct, the appeal should succeed.
18. The advantage of the magistrate in having seen the witnesses must be acknowledged and applied. On the appeal the DVEC was seen so that an assessment of the complainant to that extent could be made, by this Court, though the magistrate had the advantage of witnessing the evidence at the hearing. As to the other witnesses I accept the magistrate's findings, in particular as to Ms Oaks and Andree Cardow.
19. The magistrate gave reasons for being satisfied beyond reasonable doubt that the appellant's conduct was not in self-defence, and with respect that conclusion was always very likely to follow the acceptance of the complainant's assertion that the appellant bashed her head against the tiled wall 4 or 5 times. What is the determining matter in this case is the assessment of the complainant's evidence.
20. The initial major point concerning the wall has been referred to above, and it is not known to what degree the magistrate may have been persuaded by knowing the wall was not tiled. That however is just one factor detracting from the complainant's reliability. That factor of course does not detract from the consistent allegation of it being a wall, and the result may not have changed.
21. The magistrate ultimately accepted that the complainant was both an honest and accurate witness. A large part of her Honour's reasoning was based on the conduct of the complainant after she suffered her injuries, and the fact that she made almost immediate complaint to a stranger, and then to her sister and then to her friend, in a way that was consistent. Her Honour also seems to have placed reliance on the conduct of the appellant following the injuries; see at T110, which is after she has rejected his account. Yet in the course of coming to this conclusion, the magistrate noted that the complainant downplayed the extent of her intoxication; she noted that she was intoxicated; she noted the submission that the wall was not a tiled wall but held she could not make that finding; on the fresh evidence now admitted, that is another matter tending against acceptance of the complainant. The magistrate relied on the injuries as being consistent with the alleged assault, yet they are also consistent with falling over, and she has failed to address how there is also a similar cut on both sides of the complainant's head, yet only one side of the head hit the wall on the complainant's account. On the other hand, the appellant says the complainant fell over twice. To further support the complainant the magistrate found there was blood on a pillow; with respect, whilst that was asserted by the complainant, it was not supported by the photo evidence referred to by the complainant and that has been addressed above. If anything, this evidence counts against the complainant's reliability, rather than supporting it. The magistrate appears to place emphasis on the nature of the injuries, which at one point she refers to as a "head wound" (T110.46), which reads as if it is a reference to the injury from the alleged striking of the wall with the head and which, again as noted above, is an exaggerated view. If it is a reference to the nose injury, that too would seem exaggerated as the bleeding clearly soon stopped based on the photographic evidence. The matters of the appellant's reaction, which is tied into the exaggerated view of the injuries, was relied on in respect of considering the self-defence aspect, see at T110.11, but seems, or perhaps may have, somehow influenced the magistrate's view of the Crown case.
22. The reliance on the complaints made by the complainant needs to be done with acute awareness that it is the complainant's evidence that is in question; as is often said to a jury, that a consistent complaint is made does not make a false allegation true. That said, it is legitimate to take the complaints into account, but there is nothing in the judgment recognising this aspect.
23. Nowhere in the magistrate's reasons is there reference to the evidence of the complainant herself that "I don't remember a lot of that part of it", as set out at [3i] above and discussed at [4] above, nor does she make reference to the fact that she gave 3 versions as to which side of her head was hit on the tiled wall (which was not a tiled wall); the right side, the left side and she did not recall.
24. In my view, the magistrate has erred in concluding that the complainant was a reliable witness. In reaching this conclusion, as already noted, the advantage of the magistrate in observing the complainant give evidence in court is acknowledged and taken into account. The number of matters leading to this conclusion, together with the fact the DVEC was as observable in this Court as it was before the magistrate, determine this conclusion. The bases for concluding that the complainant's evidence is not sufficiently reliable to satisfy the high onus on the Crown has been canvassed above, and without detracting from the foregoing can be summarised as follows: 1. The complainant's own evidence, as just referred to, that she does not remember a lot of "that part of it", which is the time of the actual alleged assault; see at [4] above. This fits with her being unaware she had injuries to both sides of her head, something she was unable to explain, and something it might be added is consistent with falling to the ground twice, as the appellant asserted. Further at T24 as noted above her evidence as to which side of her head hit the wall was "I don't recall". The evidence has gone from right side (DVEC), to left side (at hearing) and then "I don't recall" (at hearing). 2. The mechanics of the assault; ie using the left hand to grab the left side of her face when standing in front of her; the same oddity exists on the right hand / right side of face version. 3. On the version of it being the right side of her head that hit the wall, the logistical difficulty of it occurring in the space available. 4. That on the DVEC she claims her right side of her head hit the wall, yet at the hearing she initially said, after seeing the DVEC, that it was the left. 5. The unconvincing, almost flippant way of answering questions examining this contradiction; see at [12]-[14] above. 6. The lack of an explanation, on the complainant's evidence, for an injury to both sides of her head. 7. The lack of any sign of blood or damage to the gyprock wall. 8. The complainant's frank statement in the DVEC that she slapped the appellant, contrasted with her evidence at the hearing that she "tried to slap him". 9. Her preparedness to make allegations as to the phone and the watch, with very little, if any, basis. 10. The exaggeration of her injuries, with reference to a "split head" which appears little more than an abrasion or small cut, and reference to bleeding which the evidence shows to be very minor. 11. The complainant's sworn evidence that photo 23 shows blood on a pillow at the top left of the photo; it simply is not there, nor does it look like a pillow. 12. Her firm conviction that the wall in question was a tiled wall, which was not the case. 13. The fact the complainant was intoxicated, and, on her own evidence of 2 cocktails and 10 glasses of wine, heavily so. 14. That the complainant, as found by the magistrate, downplayed the extent of her intoxication. 15. In assessing the evidence of the complainant the magistrate did not take into account the difficulties of her allegations concerning the phone and the watch. This has been discussed above. The allegations she made founding, first her allegation of theft of the phone, and secondly her allegation leading to the charge of theft of the watch, were not soundly based, and tended to the reckless, though it was of course the police who determined to lay the charge. In assessing the evidence as to the assault occasioning charge, these matters were not considered, and they should have been. 16. The complainant asserted in cross examination that her memory was clearer at the hearing, 7 months after the incident, than at the time of the DVEC, the day after the incident. Just why this would be so is not established, but without some explanation is contrary to usual experience.
25. One point of the appellant has dissipated, namely the Browne v Dunn point. That arose in connection with the appellant not putting to the complainant that the wall was not a tiled wall. This raised the question as to the extent to which the "rule" of Browne v Dunn applies in a criminal matter when the accused is cross examining. The point has dissipated because the fresh evidence established that the wall was in fact not a tiled wall. That is enough to establish that in that regard the complainant was mistaken, and thus another aspect of her evidence to take into account with a range of other factors in determining her reliability. That this submission of the accused arose only in submissions is not something that really makes much difference, in circumstances where the police did not serve the BWV with the initial brief, but of course at all times had the BWV and would have been, or should have been, well aware the wall in question was not a tiled wall.
26. The result therefore is that there has been identified a number of errors in the magistrate's reasoning. This includes an incorrect approach to the Markuleski direction, but overridingly because, for the reasons outlined, the magistrate was wrong to find the complainant was a witness so reliable as to allow for a finding that the elements of the assault charge had been made out beyond reasonable doubt. The magistrate did not identify all of the range of matters identified above which lead to this conclusion and thus failed to take them all into account, or if she did, gave them insufficient weight.
27. Finally, the question of whether the magistrate was in error in rejecting the appellant's version of events was left undecided at [29] above. It may not be necessary to decide that question given the conclusion reached as to the complainant's reliability. Nevertheless, should it for some reason be necessary, the conclusion reached is that the appellant's version may have been true, in so far as what actually occurred in the hotel room. That version is set out at T59. Consistent with the complainant leaving the restaurant considering the appellant and Andree to be acting like idiots, the complainant is less than welcoming when the appellant enters the room, to the point of being offensive. Soon after, consistent with the complainant's evidence, she slaps him. On the appellant's version there are more blows from the complainant; on the complainant's version there is a scuffle, that is to say, physical interaction by both parties, so again, significant consistency. In the ensuing struggle his arms connected with her neck, which explains the bruising, and in seeking to ward her off there was other contact, and two occasions on which she fell to the ground. This may well explain the soreness to her knees, and the cut to her nose and blood blister on her palm (and these latter two the complainant could not explain). Consistent with it not being an assault, he then helps her to a bed and wipes blood from her face, again this last aspect being agreed with by the complainant. Allowing that the appellant was untruthful subsequently as to what happened when speaking with Andree and Ms Oaks, it remains possible to accept his other evidence as to what did occur if there is a sound reason to do so. As to his statements made to Andree and Ms Oaks it is notable that it was not put to the appellant in cross examination that he said to Andree and or Ms Oaks that someone else must be involved. Further, it was put to him in cross examination that he did say to Andree that the complainant hit her head on the tiles (T77, agreeing to that proposition). Although partly contrary to that proposition, it was then put to the appellant at T81.35 that he did not tell Andree of what had just occurred and he answered that he was worried, that he did not want to bring it up in reception, and that he downplayed things because he wanted to diffuse things. This evidence explains his lack of frankness after the event, and allows for a conclusion that his version of what happened in the hotel room might be true.

Orders 1. Appeal allowed 2. Conviction set aside.

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