Mannix v R

District Court of NSW|2020-01-21|Before: Basten JA, Simpson J

Solicitors: Director of Public Prosecutions (Crown) File Number(s): 2018/359672

Judgment

This is an appeal from a decision in the Local Court at Burwood which on 30 August 2019 found the Appellant guilty of one offence of committing common assault contrary to s 61 of the Crimes Act 1900. The relevant principles by which one can appeal to the District Court from a decision of the Local Court on conviction are discussed in numerous cases referable to s 18 of the Crimes (Appeal and Review) Act 2001 (NSW). [1]
Specifically, in AG v Director of Public Prosecutions (NSW), [2] Basten JA stated that the Appellant is required to demonstrate some legal, factual or discretionary error for the appeal to succeed. The term "error", however, has no precise meaning and requires the appellate Judge to be satisfied that the judgment under appeal is wrong and should be corrected. How that satisfaction is achieved will depend on a range of factors relevant to the specific cases. [3] Simpson J, following an extensive review of authorities, stated that in her view it was not necessary, before the appellate power of the District Court is exercised, that there be error of law, fact or discretion shown. Her Honour went on to hold that the powers of the District Court are exercisable regardless of error and on the basis of the District Court Judge's own assessment of the evidence. [4]

FACTS

The Appellant was on 13 April 2018 the Governor of the Dawn de Loas Correctional Centre at Silverwater. The Complainant was an inmate at the Correctional Centre and the events concerned occurred at what was known as the J Block. It is not in issue that on the occasion in question there had been an industrial strike by Correctional Officers. The Appellant at the time was managing the centre, which was described as containing some 515 inmates. Apart from a select number of inmates, of whom the Complainant was one, all of the inmates were detained in their cells. The Complainant had been selected and allowed to deliver meals to the inmates contained in their cells. That was to be done by leaving the meals outside the cell door for later distribution by correctional staff.
The Magistrate accepted, and it was not challenged before me, that the CCTV evidence [5] of events did not show the noise of unhappy prisoners banging on their cells or calling out, or the noise of televisions that were turned up loudly so that inmates without TVs could hear coverage of the strike.
It is apparent from the evidence that the strike had been called at relatively short notice. A number of the inmates had been out at work and were desirous of having showers, something that could not be facilitated at the time due to the staffing shortages.
The Complainant's evidence was that he was handing out lunches, and he was going around the cells to ascertain who was in and who was out. The Complainant could not recall being given a direction by another officer, Mr Richard Ayoub, who was described as the manager of security.
Mr Ayoub said, he observed that the Complainant was performing his duties and engaging in communications with cell inmates. At one point the CCTV shows that Mr Ayoub clapped his hands to gain the attention of the Complainant. He stated that he told the Complainant just to hand out the meals and not to talk to the other inmates. He said that the Complainant had failed to comply and he then gave another direction to a similar effect.
The evidence of Mr Ayoub giving the Complainant lawful directions was corroborated by the evidence of the Appellant. The Appellant said that Mr Ayoub called out a number of times and told the Complainant to stop talking and to get on with the distribution of the lunches. [6] The evidence showed the Complainant and another inmate, who was not called to give evidence, placing lunch packages on the floor beside the cell doors.
The Magistrate found, and I accept, that the Complainant was moving in a slow fashion, occasionally peering into the cells and having a word to the occupants of the cells. The Magistrate found and I accept that Mr Ayoub's instructions amounted to the providing of lawful directions to the Complainant to desist. At the time there were four officers at the base of the cell block below the landing where the Complainant was. Those persons were the Appellant, Mr Richard Ayoub, Mr Benjamin Williamson and Mr Frank Szecki.

Complainant Approached

It was not in issue that, as a consequence of the Complainant's failure to abide by the direction that he was given, the Appellant, followed by Mr Ayoub and the other two senior staff, being Mr Williamson and Mr Szecki, climbed the stairs and approached the Complainant on the walkway above.
The Appellant was followed by officers Williamson and Szecki; the former on the left, the latter on the right, and then by Mr Ayoub. The CCTV evidence shows that the Complainant was walking away from the direction of the officers as they were going up the stairs. At one point the Complainant looked behind him, which as best as I could make out, is several metres but less than ten metres from where the Appellant was. It is acknowledged by both parties that the versions of various witnesses as to what occurred thereafter differed.
The Appellant's Counsel observed that the Magistrate had found contradictions in the Complainant's evidence. Those contradictions were referred to in her Honour's decision in the following terms: There are some contradictions in the complainant's evidence. Firstly the defence says that the complainant pleaded guilty to the internal charges of intimidation arising from the alleged offence. While this is denied by the complainant the officer-in-charge of these proceedings gave evidence that it was his understanding that the complainant had so pleaded. Certainly there is no dispute that he was disciplined internally following the alleged offence. Secondly, the complainant agreed in cross-examination that when the accused grabbed him she said words to the effect of 'Just calm down and do as you're told', and I note that this is in conflict with an assertion in his statement, which is MFI A of these proceedings, that, 'As I was trying to explain to Ms Mannix she grabbed me by the throat, she pushed me against the wall and said, "Don't talk back to me",' the accused denied that she said those words'. The complainant's evidence must be viewed in the background of those two inconsistencies and indeed of the fact that he was in custody for a dishonesty offence, that being obtain financial advantage by deception, at the time of the alleged offence, and that he had a prior conviction for the same offence, both of which are matters I am satisfied substantially affect his credibility. Because of this, and because of the need to be satisfied of the facts proved beyond reasonable doubt, I resolve every conflict between the evidence of the accused and that of the complainant, where the complainant's evidence is not otherwise corroborated, in favour of the accused. [7]
The Defence in these circumstances submitted that in light of that approach it was unnecessary to apply greater scrutiny to the evidence of the other staff.
The Magistrate noted the Appellant's evidence when she stated that on the second top stair she called out, "Oi, mate, come here" and the Complainant continued walking to her right. When at the top she repeated, "Oi, mate, come here" and the Complainant approached her. Her Honour noted that the Appellant described that the Complainant was extending his right arm to his side and saying, "What the fuck do you want?", repeating that another two times and elevating his voice each time she asked him to come over, and raising his arm higher each time. [8]
Ultimately, Her Honour found Officer Ayoub's evidence loosely corroborates the Appellant's version of the conversation. It was noted that Mr Ayoub stated that the Complainant was aggressive, loud, and was raising his hand at the Governor. Mr Ayoub stated that once an inmate raises his hand that is a potential threat.
Her Honour then referred to "another eye witness" deposing to the Complainant raising his left hand in what was believed to be a threatening gesture. Her Honour rejected that evidence, stating that the CCTV evidence shows the Complainant distinctly raising his left hand to either touch or scratch the side of his head.
It is not clear from her Honour's decision whom the "eye witness" referred to was.
One witness, Mr Szecki, gave evidence of viewing Exhibit 2 before the Court. That identified that the Complainant was waving both his hands about. [9] After he was shown Exhibit 2 he described a point indicating that the Complainant raised his left arm and then put it down. It is not clear if it was Mr Szecki that the Magistrate was referring to as the "eye witness," however the Magistrate concluded that on the evidence of the Appellant, and the CCTV, that she was satisfied that the Complainant faced the Appellant after first ascending the stairs and raised his arm to the side as he was on the footing and said three times, "What the fuck do you want? What the fuck do you want? What the fuck do you want?" in rising volume. [10]
In referring to the raising of the arm, I interpret that as a reference to the right arm. The evidence indicates however the Complainant also lifted his left arm at one point prior to stepping back. It is not clear where the Magistrate's reference to this as "a threatening gesture" comes from. The Complainant did raise his left arm, which the Magistrate determined was either to touch, or scratch, the side of his head. That was not put to any of the witnesses, as far as I can see.
I cannot determine the circumstances in which the left arm was raised. In any event, it is not the purpose for which the arm was raised which is in issue, but rather it is how it was interpreted by the Appellant. For her own part the Appellant does not refer to any movement of the left arm, only the right arm motioning as the Complainant asks, "What the fuck do you want?"
The Magistrate nevertheless makes a specific finding rejecting the evidence of Mr Szecki and finding him as an unreliable witness. He gave evidence of never following the Appellant to the upper level, whereas the CCTV evidence showed that he did, and further that he was moving away from the Appellant and the Complainant in the early part of the event. No issue is taken with this finding and I am satisfied myself, having viewed the CCTV evidence, that this finding is correct.
The Magistrate also observed that Mr Williamson described the Complainant as angry and irritated when talking to the Appellant at the top of the stairs but could not hear the conversation. He said the Complainant was waving his arm about whilst putting the meals out. [11] This was not supported by other witnesses or the CCTV. This, however, did not cause the Magistrate to otherwise dismiss the remainder of his evidence.

Assault

Mr Williamson described the Complainant as taking a step forward and the Appellant grabbing him around the neck area, which he later qualified as the lower neck area. This was described by the Magistrate as below the collar line and on the upper chest. Later in cross-examination Mr Williamson said, "Around, yeah, the neck area, yeah, high around".
Mr Williamson's evidence was somewhat at variance with the contents of a statement which he gave to the police on 26 November 2018, particularly at paragraph 8. That statement was put to him in the course of cross-examination following the granting of leave pursuant to s 38 of the Evidence Act 1995 (NSW). [12] The witness agreed that in his statement he did not refer to observations that he gave in earlier evidence about the inmate taking a step towards the Appellant. He accepted that his opinion that the Complainant was not co‑operating was based on the Complainant moving forward. He also accepted that the claim that the Complainant was upset and angry was not in his statement.
Mr Williamson was an overseer who did not have correctional duties of a prison officer, and conceded that he did not have day to day responsibilities for inmates and matters of discipline. The situation, as such, was unfamiliar to him and he conceded that it could be the case that he was concentrating on what other inmates were saying from the cells rather than what was happening in front of him. It is acknowledged, however, that he was in close proximity and so far as his evidence is concerned it was conceded that he had seen the CCTV evidence after he had made his statement. Even so, he said he could only recall one hand on the Complainant's neck not two, and the location where he saw that contact was described somewhat variably.
The Magistrate also appears to have had little reliance on Mr Williamson's evidence in this respect. The Appellant did not argue otherwise.
However the Magistrate noted that the Appellant denied that the Complainant was grabbed around the neck saying she grabbed the collar. The Magistrate rejected that evidence stating: [13] I find that [the CCTV] shows the accused holding the complainant at this stage to the front of his neck with her right hand on his collar against his neck at the same time, and this is consistent with the complainant's complaint to his mother, Ms Carruthers, shortly after the incident in a phone call, that in her words "He was grabbed around the throat by the Governor."
The fact that this was said by Complainant to his mother following the incident does not of itself make it truthful, if in fact it is wrong.
For my own part, on a re-hearing, I have had regard to the evidence given by the Complainant on this matter in the course of cross-examination.
The Complainant was shown some still shots [14] taken from the CCTV vision, and the following exchange occurred: Q. You see this is exhibit 3 in the proceedings here. A. Yes. Q. I just want you to accept that behind the white pole is Ms Mannix, okay? A. Yes. Q. She grabbed you by the collar here, I suggest. A. No, by the throat. Q. By the collar, I suggest to you. A. Yeah, that's probably - that looks like by the collar, but-- Q. You're looking at the second photograph, it looks by the collar? A. It could be a hand there. It's all blurry, sir. Q. You can see that your neck is exposed, isn't it; you see? A. You can't see my tattoo there really, can you? You can see like a hand there. Q. Because it's at the side? A. You can see a hand there. You'd be able to see it clearly my tattoo, you would there. Q. That's the tribal tattoo that you've got on the left hand side of your neck, is that right? A. And look you can see a hand, the hand there is in the way of it. Q. I'm going to suggest to you, if you want to look at the footage, I'm going to suggest to you, and you can see on the footage if we show it to you, when you're pulled away by Ms Mannix, away from the door, sorry, you could accept that she pulled you away from the doorway? A. Probably. [15]
On the basis of that evidence, and my own viewing of Exhibit 3, I would respectfully disagree with the Magistrate to the extent that she relied on the Complainant's evidence-in-chief as to the issue that she needed to be satisfied beyond reasonable doubt; that is, that the Appellant grabbed the Complainant's neck, or throat, as he described it.
The Appellant denied that she grabbed the inmate by the throat, and denied that she was holding him by the neck with both hands. Whilst at one point the Appellant accepted on the basis of the contents of the CCTV that it showed that she had her hand on the lower neck area of the Complainant; she described this as being on the right shoulder area. The Appellant rejected that her hand was around the back of the neck and rejected that it was not on the right hand shoulder side. [16]
Mr Ayoub, in his statement of 26 November 2018, [17] said the Appellant placed her right hand on the collar area of the Complainant. His actual words in paragraph 8 were: Governor Mannix reacted as if she was going to assaulted and placed her right hand on Mr Radi's left collar area.
In his incident report, [18] Mr Ayoub referred to the Appellant having placed her hand on the Appellant's chest region. That report was completed on 16 April 2018, three days after the incident.
In evidence in chief, Mr Ayoub described the Appellant's actions as a grab at the clothing area, and the Appellant having a hold of the collar in a tight position. [19] He was cross-examined in the context that that response was different, and further that the CCTV showed that both hands of the Appellant met around the Complainant's collar region. He did not accept that the Appellant's contact was to the neck region.
In cross-examination Mr Ayoub acknowledged that he demonstrated in his evidence that the Appellant placed her right hand in the upper chest, which he referred to as the upper chest collar area. [20]
Ultimately, as the parties conceded, this Court is in as good a position to view the CCTV evidence except for the fact that the Court did not have the benefit of a zoom-in facility. The Court does however have the benefit of the contents of the still photographs. [21]
As far as I can see the contents of Exhibit 3, were matters which only the Complainant was taken to in his evidence. The Magistrate did not refer to Exhibit 3, and the other evidence of the Complainant which I have referred to. Bearing in mind the content of Exhibit 3, the answers given in cross-examination by the Complainant, to some extent supported by the statement of Mr Ayoub in the incident report of 16 April, I accept that the Appellant at no stage grabbed the Complainant's throat. I do accept that she grabbed him on the left hand shoulder as indicated in one of the still shots, with the right hand, and with her left hand on the other side.
The Magistrate found thereafter the Complainant was pushed against a wall, and that the Appellant says that she placed her left hand on the Complainant's right shoulder. The Magistrate rejected this, stating that she was satisfied that the CCTV showed that she in fact placed the left hand on the back of the neck.
Again, I respectfully disagree. On the basis of the Magistrate having accepted the evidence of the Appellant, and the CCTV evidence (on my examination not contradicting that evidence), I would not reject this aspect of the Appellant's account. Indeed to some extent I find it supported, on my own viewing of Exhibit 3, to the extent that I am able to make anything out, although the position of the hand is not entirely clear.
In terms of the hold which the Appellant had with the Complainant, I am fortified in my finding by the fact that the CCTV evidence does indicate a subsequent forward continuous movement in which the Appellant has hold of the Complainant's shirt.
Proceeding further, the Magistrate found that the CCTV evidence shows that the Appellant moved her face close to the Complainant and said, "Mate, you need to calm down. Just do as you are told".
The Appellant agreed in cross-examination that after she grabbed the Complainant, and as she pushed him towards the wall, he did not resist, and indeed the CCTV evidence shows his arms to the side. The Appellant's evidence was that she did this because she needed to know that he was not going to escalate back up. Also noted was that the Complainant was still being abusive saying, "What the fuck do you want?"
The Magistrate noted that this account of the Complainant still being abusive, was given in cross‑examination, and examination in chief, the Appellant had made no mention of repeating that phrase; whilst she held the Complainant against the wall with his hands on the side not resisting. The Magistrate found that this evidence was given in cross‑examination, to explain on the CCTV of the Appellant holding a compliant and an unresisting inmate, by two hands round the neck. Her Honour found that this was untrue. The suggested motive for the Appellant to give the account that she gave, as found by the Magistrate, was not put to her in course of cross‑examination. Nothing was suggested to her that she was untruthful. Moreover, on my finding, the Appellant's holding of the Complainant, was in accordance with the account that she gave in the course of her evidence.
That still leaves the questions of whether the Complainant whilst not physically resisting, did say the words that the Appellant alleges, and whether that aspect of the Appellant's evidence can be accepted.
The evidence of Mr Ayoub on this does not assist. [22] He described the Appellant as being generally, verbally aggressive.
Mr Williamson did not give evidence of hearing a conversation. Though he did say that when the Complainant was having words to Ms Mannix, he was not co‑operating that well. [23]
Mr Szecki's evidence is of no assistance for the reasons earlier indicated. His evidence was that he was not paying attention at the time and the Appellant had the situation under control. Although following taking the inmate to the cell, after the incident, he described in his statement that the Complainant was still swearing and carrying on. [24] In examination in chief, however, he gave different accounts, describing Mr Ayoub taking the Complainant away and describing it as routine. This was not pursued any further.
Mr Ayoub in his statement stated that the Complainant was taken away to the cells without further incident. [25]
Mr Williamson, on his evidence, stated that after the Appellant's intervention, he would say that the incident de‑escalated and the inmate was taken back to the cell.
Certainly the CCTV image does indicate that the inmate was somewhat animated and agitated, following the incident in question. What, however, was the cause of this is not clear and was not explored.
The Complainant's evidence on this matter was variable. At one point, he accepted that he kept on saying, "what the fuck do you want". [26] He later disagreed that he said anything like that. [27] He did agree however, consistent with the Appellant's evidence, that after he was held, the Appellant possibly said to him, "just calm down and do as you are told". Accepting that that was said, is consistent with the belief held by the Appellant, that at that point, the Complainant was not calm and not co‑operating.
It was not suggested that what the Appellant said to the Complainant, was threatening or aggressive, associated with the physical action she took. In the circumstances, and bearing in mind the contents of the words that the Appellant spoke, according to her account, I am prepared to accept her evidence as to the words spoken at this time to the Complainant. They are also, in my view, consistent with the other events which I have described.
The Magistrate proceeded to find that the CCTV evidence shows that the Appellant, after pushing him back towards the cell door, and pulling him forward by the collar, which shoulder she had. The Magistrate noted that it was necessary for the Appellant to do this because of a locking mechanism to the cell that protrudes and if pushed into that mechanism, that would have caused hurt to the Complainant. The evidence of this was not challenged and can be accepted.
Next, the Magistrate stated that the Appellant was seen to be breathing heavily after this event. It is not clear where that observation had its foundation. It is not discernible on my viewing of the CCTV and the proposition was not put to the Appellant in the course of cross‑examination. Nor is it clear what impact, if any, such a finding would have had on the ultimate outcome of the case.

Self Defence

The assault on the Complainant in these circumstances, was not in issue. The question remains as to the defence under s 418 of the Crimes Act 1900 (NSW).
In considering the first limb of the test, the Magistrate took into account, as relevant to the Appellant's subjective perception, that she believed her conduct was necessary to defend herself. She noted a number of matters which provides some support to that belief. Firstly, that she had been assaulted half a dozen times previously, including an occasion where she had been hospitalised. Secondly, she was long experienced as a prison officer and she worked in a potentially dangerous and a volatile environment. Thirdly, related to the first point, she was ignorant of the criminal history of the Complainant and unaware as to whether he had been convicted of violent offending, and fourthly, that there were four officers to manage and control the inmates because of the strike that had taken place.
The Magistrate proceeded to consider on the other side, a number of other factors. Firstly, that the Appellant had 32 years of experience in Corrections and that she was used to the general behaviour of inmates, including inmates being disrespectful. Secondly, the Appellant's evidence where she stated there was no pressure, other than the usual, on her and other staff. Thirdly, that the training she had received in the usual alternatives of non‑physical methods to resolve problematic behaviours, wherever possible, with the use of force being an option of last resort. Fourthly, the fact that there were other prison officers, to use her words, at arms' distance away.
Ultimately, her Honour noted that the Appellant's evidence that she felt threatened when the Complainant stepped forward into what was described as, "my space" and she was in fear that she may have been assaulted.
Her Honour then concluded: The CCTV footage shows that the complainant stepped back far further than he stepped forward. It was the accused who covered the ground to meet him and grab him to the front of the neck. She was a trained professional corrections officer, surrounded by three others. I am not satisfied that there is a reasonable possibility that the accused believed that because the complainant was saying loudly 'What the fuck do you want?' and gesturing to his side and slightly stepped forward after stepping back that she believed her behaviour was necessary in order to defend herself. I am satisfied she simply lost patience, that she became angry and lashed out at the complainant for his lack of compliance. It is telling that at the end of the CCTV that she stands breathing heavily, she is angry." [28]
The proposition that the Appellant lost patience was not directly put to her. It was put to her that she reacted to the Complainant's behaviour out of frustration and anger and she grabbed the Complainant by the throat. Further, that she pushed him backwards into the wall as a result of that frustration; not as a result of any aggression or threat.
The propositions were rejected by the Appellant who also rejected the suggestion that she simply was asserting her dominance and reinforcing authority.
Those contentions as to what in fact occurred have to be seen against the Appellant's unchallenged evidence that after holding the inmate she said to him that he needed to calm down and do as he was told. Beyond that, however, the proposition that she could not have been threatened by the movements of the Complainant into her space was not directly put, nor was it put that she could not have apprehended fear in circumstances where there were three other officers nearby.
In the end this is a fast moving event. It occurred on the upper landing of a prison. It involved a correctional environment where volatile behaviours can sometimes be exhibited in circumstances which can be quite unanticipated. Events can unfold quite quickly. Correctional officers in positions such as this need to exercise fine judgments consistent with their responsibilities for their own safety and those of whose care is entrusted to them. It is unhelpful to speculate as to whether alternative actions were open in circumstances where there may have been greater opportunity for reflection.
The Magistrate gave a lengthy and considered decision. I have departed from a number of her Honour's findings, in particular in relation to the finding that the Appellant was untruthful in respect of an aspect of her evidence. Taking that into account, I also need to bear in mind that the Appellant is a person of previously good character, a person who a number of witnesses gave evidence which was not questioned before the Magistrate supporting that good character. That evidence is important both as to the likelihood of her having committed the offence and also make it less likely that she would give a false account in her evidence before the Court.
Having considered those matters and having regard to all of the circumstances I am of the view, contrary to the decision of the Local Court, that the Appellant's account is a reasonable possibility and the Crown has not excluded it beyond reasonable doubt. That is, that she perceived a threat to her safety. In other words, the Crown has not established that at the time of the said act the Appellant did not believe that it was necessary to do what she did in order to defend herself.
So far as the second limb is concerned the Crown contended the fact that the Complainant was verbally aggressive was not a circumstance where the use of force and its duration could be described as proportionate. The Crown again has to establish that the force used in the circumstances was disproportionate. I have accepted the Appellant's version of the physical action she took, and the circumstances in which she took it, consistent with the findings earlier described. The level of force that was used, in my view, and the position of that force was at variance with that which was found at the Local Court. It follows that I am not satisfied in the circumstances that the Crown has proved beyond reasonable doubt that the Appellant's action was not a reasonable response in the circumstances as she perceived them to be.
For these reason the orders of the Court will be as follows: 1. The appeal is allowed. 2. The orders of the Local Court are set aside. 3. The Offender is found not guilty.

Endnotes

Charara v The Queen (2006) 164 A Crim R 39, [2006] NSWCCA 244; Dyason v Butterworth [2015] NSWCCA 52;
[2015] NSWCA 218.
At [34].
At [95] (Sackville AJA preferred to express no view on the construction issue).
Exhibit 2 before the Local Court.
T. 116.18.
T163.22-.40
T 164.01-.04.
T 79.44.
T 164.44-.48.
T 95.34-96.22.
T 102.28-.36.
T 165.04-.09.
Exhibit 3
T 33.07-.38.
T 134.7-.19.
Exhibit 7.
Exhibit 6
T 246.13-.15.
T 70.41-.47.
Exhibit 3.
T 49.35-.50.
T 98.18-.30.
Exhibit 8 at [8].
Exhibit 7 at [8].
T 31.13-.14.
T 35.15‑.25.
T 116.33-.45.

Amendments 02 November 2020 - Typographical error amended 09 July 2021 - [44] - In the first sentence, the word "in" is added after the word "and"

[47] - Substitute the word "Complainant" for "Appellant"

[50] - Substitute the word "on" with "in" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2021

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