NADINE MUSABWASONI v R

The Relevant Law

1. The applicable principles to be applied in determination of the appeal are as follows: 1. 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]; 2. 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]; 3. 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].
2. Section 13 Crimes (Domestic and Personal Violence) Act 2007 provides: A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. ... For the purposes of this section, a person intends to cause fear or physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. For for the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. …
3. Section 16 Crimes (Domestic and Personal Violence) Act 2007 provides: A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears: the commission by the other person of a personal violence offence against the person, or the engagement of the other person in conduct in which the other person: intimidates the person or a person with whom the person has a domestic relationship, or stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order. Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if: (a) the person is a child, or (b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function, or (c) in the opinion of the court: (i) the person has been subjected at any time to conduct by the defendant amounting to a personal violence offence, and (ii) there is a reasonable likelihood that the defendant may commit a personal violence offence against the person, and (iii) the making of the order is necessary in the circumstances to protect the person from further violence. For the purposes of this section, conduct may amount to intimidation of a person even though: (a) it does not involve actual or threatened violence to the person, or (b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.
4. I pause to note that I need only be satisfied of the matters provided for in section 16, to make an Apprehended Domestic Violence Order, to the civil standard of proof; that is on the balance of probabilities.
5. Section 17 Crimes (Domestic and Personal Violence) Act 2007 provides: In deciding whether or not to make an apprehended domestic violence order, the court must consider the safety and protection of the protected person and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order. Without limiting subsection (1), in deciding whether or not to make an apprehended domestic violence order, the court is to consider: in the case of an order that would prohibit or restrict access to the defendant's residence-the effects and consequences on the safety and protection of the protected person and any children living or ordinarily living at the residence if an order prohibiting or restricting access to the residence is not made, and any hardship that may be caused by making or not making the order, particularly to the protected person and any children, and the accommodation needs of all relevant parties, in particular the protected person and any children, and any other relevant matter. When making an apprehended domestic violence order, the court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order, and the protected person's property. If an application is made for an apprehended domestic violence order that prohibits or restricts access by the defendant to any premises or place and the court hearing proceedings in respect of the application decides to make an order without the prohibition or restriction sought, the court is to give reasons for that decision.
6. Section 84 Crimes (Domestic and Personal Violence) Act 2007 relevantly provides as follows: An appeal may be made to the District Court: by a defendant against the making of an apprehended violence order by the Local Court … An appeal under subsection (2): may be made under Part 3 of the Crimes (Appeal and Review) Act 2001 in the same way as an application may be made under that Part by a defendant against conviction arising from court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986… The Crimes (Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act.
7. Tendered before me was the Crown bundle (Exhibit A), which comprised of the statement of Constable McCue dated 18 May 2014, the statement of Constable Dreon dated 16 May 2014, three photographs of the complainant taken by him on or about on 24 April 2014 (Exhibit 4 below), four photographs of the complainant taken by police on 5 May 2014 (Exhibit 2 below), the Initiating Application filed in the Family Court of Australia and the transcript of the hearing before the magistrate on 24 September 2014.

Analysis of the magistrate's reasons

1. The magistrate noted that the appellant agreed she was at home with the complainant on both 21 April 2014 and 5 May 2014 and that the issue in each matter was whether or not the events that were the subject of the charges occurred at all.
2. The magistrate recited the complainant's evidence and of particular relevance noted his evidence to the effect that his brother Richard was present in the house at the time when the assaults of 21 April 2014 were alleged to have occurred. The magistrate made no finding about the significance of the failure of the prosecution to call Richard Sebie.
3. The magistrate recorded that the complainant had given evidence that he felt threatened when the appellant held the kitchen knife with the blade pointing up and said the words, "one day Robert I can kill you".
4. The magistrate then recited the appellant's evidence, including that she noticed the complainant's eye was swollen when he arrived home on 21 April 2014 and that she asked him about it. The complainant told her that he had fallen when cutting a tree. The appellant gave evidence that she had separated from the complainant but continued living under the same roof from about 14 February 2014 onwards; being the date when she had returned her rings to the complainant.
5. The magistrate noted that this was a one witness versus one witness dispute and that the prosecution had to prove the matter to the very high standard of beyond reasonable doubt. The magistrate commented that it was appropriate for her to exercise caution in accepting the word of one person, without further corroboration, particularly where the appellant had given evidence and denied that the relevant events had occurred.
6. The magistrate noted that the appellant had raised character and that she had taken it into account. It was agreed between the parties that on the appeal, I should not have reference to character, and therefore I do not need to comment further on this aspect.
7. The magistrate accepted the complainant's evidence as to the assaults of 21 April 2014 as she believed that it was corroborated by the photographs taken by him of his injuries on about 24 April 2014. She accepted his explanation for the delay in complaint, by reference to the history of their relationship and his "habit of photographing incidents and taking no action" (T64 line 5). She accepted that the threat made to him on the morning of 5 May 2014 was a precipitating factor in making his complaint to the police. She accepted that he felt fear on that occasion and that had prompted him to go to the police.
8. The magistrate found that there were some inconsistencies in the appellant's evidence, in the following respects: 1. that she gave evidence that she was initially concerned about the injury to the complainant's eye and then later gave evidence of not being concerned about his eye; 2. that at one time she gave evidence that these proceedings had forced her out of her home and that she later gave evidence that she was looking forward to moving out and finding her own accommodation.
9. Ms Holloway fairly and appropriately conceded in submissions that the inconsistencies in the appellant's evidence referred to by the magistrate at T 64, were illusory.
10. First, the appellant's initial concern about the complainant's eye injury was in the context of her return from Melbourne on 21 April 2014, when she enquired of how he had received the injury (T50 line 37). Her later evidence about not being concerned about him having minor injuries in general, was in the context that on her evidence that he regularly had minor injuries sustained in the course of his work as an air-conditioning installer (T51 lines 20-27). For my part and with the benefit of the Crown's submissions I do not consider this to be an inconsistency in the appellant's evidence.
11. Second, the appellant gave evidence of being distressed as a result of being forced to leave her home as a result of these proceedings (T40 line 40). The appellant later gave evidence to the effect that as at about 5 May 2014 she was relieved that the Family Court proceedings being commenced and she was "looking forward" to finding a rental property and moving out on her own (T53 line 15). In my view those two pieces of evidence clearly related to two different points in time and accordingly are not inconsistent.
12. The magistrate noted that in relation to sequence 3 the basis of her finding of guilt was that the appellant had the knife in her hand because she was cutting sandwiches, and it was not the case that she had picked up the knife for the purpose of making the threat (T64 lines 27-30).
13. The magistrate made no express credit findings to which I must have regard. The magistrate made no express findings about the demeanour of any of the witnesses.

Failure to call Richard Sebie

1. In general, it is incumbent upon the prosecution to call all available material witnesses, unless there are good reasons not to do so. The tribunal of fact should not speculate about the evidence that might have been given by the witnesses who were not called.
2. In Mahmood v Western Australia (2008) 232 CLR 397 at [27] the plurality of the High Court said: "… Where a witness, who might have been expected to be called to give evidence on the matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused."
3. See also Louzios v R (2009) 194 A Crim R 223 at [57].
4. The complainant's evidence was that his brother Richard had been living with him and the appellant from the beginning of 2014, "on and off" (T3 lines 27-29), and that he was present at the house on the night of 21 April 2014. On the complainant's evidence, his brother heard the argument taking place at the time when the appellant struck him with the coffee mug and that as a result of the commotion Richard came into the kitchen, at which time, the complainant said to Richard, "she hit me with a coffee mug" (T6 lines 16-17). The complainant continued in his evidence to say that he and Richard were walking away from the kitchen towards the hall, at which time they passed through the lounge room. The complainant gave evidence that it was at this time that the appellant picked up a skateboard from the children's toy area and struck him with it across the back of the left upper arm (T8 lines 6-10).
5. Under cross-examination the complainant gave evidence that his brother Richard was present, that he had not provided a statement to the police but that it had volunteered to do so (T11 line 20-25). As the complainant understood it he had not been asked by the police for a statement. The complainant gave evidence that his brother "was even available to come today [the day of the hearing] if he was required, but no one" had requested him to do so (T11 line 26). The complainant gave evidence that Richard had not seen any injury to his face, prior to the alleged assault as a result of the gardening incident (T20 lines 18-19). The complainant also gave evidence that his brother had stayed with him for a while after the alleged assaults on 21 April 2014 before the complainant had gone to bed (T16 lines 34-35).
6. In the present case there was no explanation as to why Richard Sebie was not called as a witness or even why the police had failed to take a statement from him.
7. On the complainant's evidence Richard was an available and willing witness to the events that occurred on 21 April 2014 and he had ample opportunity to observe the matters in dispute. Richard Sebie, it appears to me, could have given important evidence about the interaction between the complainant and the appellant on 21 April 2014. In fact, the complainant's evidence emphasised Richard's proximity to and involvement in the relevant events. In my view he was a crucial witness, if the prosecution was to prove the assaults of 21 April 2014 occurred to the standard required, that is beyond reasonable doubt.
8. In the absence of any evidence from Richard Sebie and any explanation as to why he was not called, I am not satisfied beyond reasonable doubt that the assaults of 21 April 2014 took place.

Consistency of the injuries alleged

1. In relation to sequence 1, the complainant gave evidence that he was struck in the left eye with a ceramic coffee mug, in a punching type motion (T4 lines 14-19). The complainant gave evidence that he did not initially have any injury, but that it started to bruise "after a day or two" (T6 line 10). In cross-examination the complainant gave evidence that he didn't even notice that he had a black eye until two days after the incident. He said that his eye felt puffed up but did not start turning black until a day or two afterwards (T13 lines 30-35). He later added that his eye was "slightly red" immediately following the injury (T18 line 9). He gave evidence that he took the photographs which were exhibit 4 below, after he noticed how bad the swelling got, and how bad his eye was (T18 line 27-30).
2. As to sequence 1, the photographs taken by the complainant of himself that became Exhibit 4 in the Local Court, depicted bruising to the left eyelid and immediately under the eye extending downwards in a crescent shape that was approximately 10-15mm below the centre point of the eye at its lowest point. In my careful examination of photographs I do not accept that they depicted swelling of any part of the eye region. There appeared to be no injury to the eyebrow area. The photographs that became Exhibit 2 below, did not depict any injury to the eye in my view, probably because the injury depicted in the other photographs had resolved.
3. I am not satisfied beyond reasonable doubt that the injury to the left eye was inflicted by the use of an oversized coffee mug. In my view, such an object was likely to cause injury to the eyebrow area at least in addition to any other injury. I do not accept that the use of the object alleged would have caused the localised bruising that is depicted in the photographs. Further, I do not accept the complainant's evidence about the initial appearance of his eye after the assault because it appeared to me to be contradictory and self-serving.
4. In relation to sequence 2, the complainant gave evidence that he was hit in the lateral aspect of the upper left arm with a skateboard. The complainant described the skateboard as a "full-size skateboard" (T8 line 24) with a rough sandpaper like surface (T8 line 34). The complainant stated in his evidence in chief that he was struck with "one of the corners of the skateboard" (T8 line 28).
5. The photograph in Exhibit 4 below depicted an injury to the left arm consistent with a deep graze that was circular in shape and slightly larger than a 50 cent piece. The arm injury depicted in the photographs, including the photographs taken by police that became Exhibit 2 in the Local Court did not include bruising.
6. The complainant gave evidence that he was wearing a short sleeved T-shirt at time of the assault (T12 lines 1-2). He described a T-shirt as having a longer than normal sleeve, in that the sleeve came down to his elbow (T12 lines 19-20). The complainant agreed in cross-examination, that the T-shirt was covering the part of his left arm that was struck by the skateboard (T12 line 33). The complainant gave evidence that the arm injury included bruising (T17 line 37).
7. I am not satisfied beyond reasonable doubt that the injury to the left arm was caused by the skateboard because I do not accept that the graze type injury could have been caused through the material of the T-shirt that the complainant said he was wearing. Further, I do not accept that the injury could have been caused in the manner described without there being significant and visible bruising to the area of impact.
8. Ms Holloway fairly and appropriately conceded in the appeal, that the injuries to the complainant could have been equally caused by either the assaults alleged or the gardening incident. Ms Holloway further conceded accordingly that the injuries could not be considered as independent corroboration of the complainant's version of events.
9. For these reasons, which are in addition to the reasons I have given relating to the failure to call Richard Sebie, I am not satisfied beyond reasonable doubt that the prosecution have established the elements of the offence required to record a conviction in relation to both sequence 1 and sequence 2.

Delay in complaint

1. There can be many reasons for a complainant to delay their complaint to the police and the fact of a delay in complaint: 1. does not automatically detract from the veracity of the complaint, and 2. will not automatically be adverse to the complainant's credit.
2. On the other hand, the tribunal of fact may consider that the failure of a complainant to make a complaint at the earliest available opportunity can be taken into account in whether to believe the complainant at all or to impugn his or her credit: Kilby v R (1973) 186 CLR 427.
3. Further, the tribunal of fact is entitled to consider whether or not the accused has been prejudiced in presenting his or her defence by the delay in the complaint coming to his or her attention: Lemura v R [1998] NSWCCA 699.
4. In my view the appellant was prejudiced in the presentation of her defence referrable to the delay in the complainant's complaint in two respects, being: 1. the prosecution did not put into evidence the T-shirt that the complainant was wearing on the night in question. Had it been available, it could have been examined for blood and/or coffee stains that could have been corroborative of the complainant's account; 2. the police would have had the opportunity to make independent observations of the injuries closer to the time when they were allegedly inflicted and that may have included the opportunity to have the injuries looked at by a medical practitioner.
5. The complainant and the appellant were going through a relationship breakdown. I do not accept the complainant's evidence that he did not want the appellant to get into trouble and that is why he did not complain about the assaults alleged to have occurred on 21 April 2014. On this issue, I prefer the evidence of the appellant that the breakdown of the relationship had reached a point that the complainant and the appellant were discussing arrangements for her to move out of the matrimonial home. This evidence was corroborated by the fact that the appellant had instructed solicitors to commence the Family Court proceedings and that those solicitors had progressed the matter to the stage of filing the Initiating Application in the Family Court. In my view, this upset the complainant sufficiently to make false allegations of what occurred on 21 April 2014 and 5 May 2014.
6. It follows that in accepting the appellant's evidence on this point, and finding that the complaints were false that I cannot be satisfied of the veracity of the complainant's evidence beyond reasonable doubt or at all, and I must acquit the appellant on all three counts: Liberato v R (1985) 159 CLR 507.

Intent required for sequence 3

1. The intent required for the proof of sequence 3 is set out in section 13(3) Crimes (Domestic and Personal Violence) Act 2007.
2. Mr Segal submitted that taking into account the complainant's evidence of the history of the relationship and in particular his experience of being told similar words on numerous occasions that I could not be satisfied beyond reasonable doubt that the appellant knew that those words would be likely to cause fear in the complainant.
3. The complainant gave evidence that similar words had been said to him by the appellant on about 15-20 times in the past several years (T9 Lines 15-25). Later in cross-examination he gave evidence that she had "said it a number of ten times before" (T19 lines 13-15).
4. I agree with the magistrate on this issue that the fact that she had the knife in her hand was incidental to the words spoken, because she was in the process of making sandwiches, and that the holding of the knife could not of itself add to the threat. Further, I cannot reconcile what type of knife the appellant was holding. It was described in the evidence as both a "cutting knife" and a "butter knife" and I am left with a reasonable doubt as to which one it was. In my view, the type of knife was relevant to the purported threat. As I am left in some doubt as to the type of knife the benefit of that doubt must go to the appellant.
5. If I accept the complainant's evidence on this point, which would be to accept the prosecution case at its highest, the only reasonable inference to draw was that a comment to this effect was within the ordinary discourse between the complainant and the appellant. In those circumstances, I could not be satisfied beyond reasonable doubt that the appellant knew, either actually or recklessly, that the words would cause the complainant fear of physical or mental harm.
6. As a result, the prosecution has failed to establish an essential element of sequence 3 and I cannot be satisfied beyond reasonable doubt that the offence was committed.
7. For the sake of completeness I should add that I am not satisfied beyond reasonable doubt of the complainant's evidence that the words were in fact spoken and I therefore must acquit the appellant of sequence 3.
8. My findings on the inconsistency of his evidence as to the injuries that he alleged he suffered, are sufficient for me to reject his evidence as a whole. I have carefully considered the appellant's evidence and I prefer it to the evidence of the complainant whenever it is in conflict. In so doing I am mindful that I did not see or hear the witnesses give their evidence, but it was conceded by Ms Holloway that the magistrate made no credit or demeanour findings to which I must have regard. In my view, the appellant's version that the injuries to the complainant were sustained in the gardening incident is more likely and I accept it. It follows that in my view the complainant gave a false account in his evidence.
9. The result is that I am not satisfied even on the civil standard that any of the conduct alleged that was the subject of the charges occurred at all.
10. The magistrate presumably made the Apprehended Domestic Violence Order on the basis that she had convicted the appellant of personal violence offences as defined by the legislation. As I have set aside the convictions I must consider the requirements of the section afresh.
11. In the circumstances, I am not satisfied that the complainant had reasonable grounds to fear that the appellant would commit a personal violence offence or otherwise that she would engage in conduct that intimidated him or amounted to stalking.
12. In conclusion, I am not satisfied beyond reasonable doubt that the prosecution has proved the elements the three charges and I make the following orders on the appeal against conviction: 1. Appeal against conviction allowed; 2. Set aside the orders of the magistrate of 24 September 2014; 3. Dismiss the Court Attendance Notice.
13. In relation to the appeal against the imposition of the Apprehended Violence Order I am not satisfied on the balance of probabilities that the matters set out in section 16(1) Crimes (Domestic and Personal Violence) Act 2007 have been established and I make the following orders: 1. Appeal against the imposition of an Apprehended Domestic Violence Order is allowed; 2. Set aside the order made by the magistrate on 24 September 2014.

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