R v Cooper [2007] ACTSC 74

3. Thus, the provisions of s 68C of the Supreme Court Act 1933 (ACT) apply. That is:**

Verdict of judge in criminal proceedings

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

**4. Accordingly, the accused is entitled to the presumption of innocence and the Crown bears the onus of proof of each element of the charge to the criminal standard, that is, beyond reasonable doubt. Any reasonable hypothesis, open on the evidence, consistent with the innocence of the accused must be excluded.

5. Any verdict to be arrived at must be determined by reference only to evidence properly admitted at trial but including such matters of common knowledge as may be taken into account by virtue of s 144 of the Evidence Act 1995 (Cth) (Evidence Act).

6. The fact that I have received the pleas of guilty referred to in respect of matters following the alleged assault was expressly eschewed as a ground for suggesting that I should disqualify myself from trying the matter at issue on the separate indictment. So also was the fact that on 4, 5, 6 June 2007, I presided over a trial of this accused where an earlier assault on Ms Glennie was alleged to have been committed by him. He was acquitted by the jury on that occasion. Further, during the course of that trial reference was made to the prior criminal record of the accused which included a plea of guilty entered by him to a prior assault on Ms Glennie. Those matters, though I have knowledge of them, are not part of the evidence properly admitted before me in this trial and I expressly exclude them from consideration on the question before me, that is, whether or not the accused has been proved guilty of the offence charged.**

7. Ms Jones, for the Crown, relied on the Crown Case Statement as the Crown opening:

The accused is charged with assaulting his defacto partner Teresa Glennie on Monday 13 March 2006.

The accused and Ms Glennie were involved in a de facto relationship for approximately four years and resided together at 20 Powlett St Kaleen with Ms Glennie's seven-year old son Jake Sharwood/Glennie - her son by a previous relationship.

On the evening of 13 March 2006 Ms Glennie and Jake were at the Kaleen address. Some time in the evening Ms Glennie became upset with the accused when he failed to return home when expected. Jake's memory is that his mother woke him up, helped him get dressed and told him that they were going to go to Goulburn. Ms Glennie started to drive however she became upset and stopped the car on the side of the road, crying, and then drove back home. Upon returning, Ms Glennie gave Jake her mobile phone and told Jake that if the accused hurt her, he should call the police. Jake went to his bedroom and hid the phone under the bed covers.

The accused returned home and was quite intoxicated. Ms Glennie and the accused argued. Ms Glennie came into Jake's bedroom. The accused followed. The accused punched Ms Glennie about three times and kicked Ms Glennie in the stomach area causing her to fall to the floor. The accused said to Jake, "That's real kung fu Jake" and left the room. Ms Glennie also left the room. This is the conduct that constitutes the charge of assault.

Jake rang 000. He said "Bradley Cooper's hurting my mum." He gave the address. He said, "He's kicking and punching her, and stuff like that." The conversation was taped. The prosecution intend to lead evidence of this conversation as first-hand hearsay evidence pursuant to s 66 of the Evidence Act 1995 (Cw).

As a result of that call Constables Stephen Booth and Andrew Gregory were requested by police communications to attend 20 Powlett St Kaleen. When they arrived the accused was in the front courtyard of the premises. A short while later police had cause to handcuff the accused and he was arrested.

At this point Teresa Glennie came out of the house and said to the accused that she had not called the police, that Jake had called them. The accused said to her, "I didn't do anything", to which she replied, "You hit me in the head." The prosecution intend to lead this evidence from the four police officers who were present and heard this conversation as first-hand hearsay evidence of what Ms Glennie said about the fact in issue in the presence of the police pursuant to s 66 of the Evidence Act 1995.

Constables McSpeerin and Byrne escorted the accused to a police vehicle and he was taken to City Police Station.

At the Kaleen premises Constables Booth and Gregory entered the premises. Constable Gregory located Jake in his bedroom. Jake told Constable Gregory that he had called the police because his mother had been punched and kicked on the ground by the accused. The prosecution intend to lead evidence from Constable Gregory of this conversation pursuant to s 66 of the Evidence Act 1995.

Constable Booth and Ms Glennie and [sic] entered the room and Constable Booth had a conversation with Ms Glennie. Constable Booth asked her if the accused had hit her that night and she nodded her head. The prosecution intend to lead evidence from Constables Booth and Gregory of this conversation and Ms Glennie's response pursuant to s 66 of the Evidence Act 1995.

Constables Booth and Gregory noted that Ms Glennie had a swollen lip and nose and her lip had a small amount of dried blood on it.

Shortly after, in the lounge room, Constables Booth and Gregory noticed a luggage bag near the front door. Ms Glennie told them she had packed the bag for herself and Jake and was planning to take Jake to her family's address in Goulburn. She said that the accused came home at about 8 p.m. and was drunk. She said an argument had ensued and the accused hit her. The prosecution intend to lead evidence of this conversation pursuant to s 66 of the Evidence Act 1995. Ms Glennie was asked if she wanted to speak about the incident in a tape recorded conversation but she indicated she did not want to and no formal police statement was taken.

Constable Tarn Franklin then arrived at the scene and took photographs of Ms Glennie's injuries.

It is anticipated that Ms Glennie will give evidence denying that there was any assault upon her by Mr Cooper, and that leave will be sought pursuant to s 38 of the Evidence Act 1995 to cross-examine Ms Glennie about:

• Prior inconsistent statements made by her in the presence of the police and to the police
• Evidence of the assault as will be given by her son Jake
• Her credibility

The case against the accused consists of:

1. Evidence of Jake Glennie of the assault he witnessed.

2. Evidence of Constables Booth and Gregory:

• Of the conversation between Ms Glennie and the accused outside the front door of the premises
• Of injuries noted on Ms Glennie including a swollen nose and lip and bruising to her arms and legs
• Of conversations between themselves and Jake Glennie which took place at the premises on the evening of the incident
• Of conversations between themselves and Teresa Glennie which took place at the premises on the evening of the incident, including the actions of Teresa Glennie nodding when asked if the accused had hit her.

1. Evidence of what Jake said to the 000 operator (this will be by way of tape recording).
2. Photographs taken by Constable Franklin of injuries to Ms Glennie.
3. Evidence of Constables McSpeerin and Byrne of the conversation between Ms Glennie and the accused outside the front door of the premises.

8. The count in the indictment engages the Crimes Act 1900 (ACT) (Crimes Act), s 26:

A person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for two years.

**9. Assault is committed if the accused person has struck, touched or otherwise, even indirectly, applied force to another, referred to as battery. It is a further element of the offence that the act so described be both voluntary and intentional or at least reckless. It is a further element that the other person has not consented to the act or acts alleged to constitute the assault and that no other lawful excuse is present for their performance (for example, self-defence, protection of the individual from harm).

10. Upon the Crown case the violence inflicted upon Ms Glennie was not consented to nor were there any circumstances amounting to lawful justification.**

**11. Ms Glennie gave evidence that she had, at the time of the alleged assault, been, from 2002, in a relationship with the accused. They lived together from 2004. Also residing with them was Ms Glennie's son by a previous relationship, Jake Sharwood. His date of birth was 6 October 1998.

12. She recalled that in the late afternoon of 13 March, sometime between 5.30 pm and 6.30 pm, she took Jake to a park near the then family home. She was, she said, upset because she had been arguing with the accused. That was over the telephone. It concerned:**

... he'd went to the pub drinking and I'd been getting cranky with him because he was doing that a lot. ... And I didn't like the person - one person he was drinking with a lot.

**13. However, whilst she was at the park, the accused had, apparently, arrived home. They were speaking to each other at that time by phone. She had also decided to leave and go to Goulburn, her parent's residence, because of her concerns about that issue.

14. She returned home. The accused had been drinking and was yelling about the man he had been drinking with. Jake went to his bedroom during the course of this.

15. All that occurred after that, she said, was that the accused and she went out to sit on the front verandah,**

... and then all of a sudden there was all these police there and they just grabbed him.

**16. The accused said, 'I haven't done anything Teresa.'

17. She could not remember saying anything in response to the accused's statement. The accused was then taken away by police.

18. There was, she recalled, by the front door a bag that she had packed. However, she claimed not to remember many other details. She did agree that certain photographs (exhibit 1) were of her and taken by police at the time of the incident. She refused to ackowledge that any of them depicted any sign of injury to her lip and nose area. She did agree that there was a bruise to her upper left arm. She claimed that it was present before 13 March 2006 as she bruised easily. A bruise to the area of her knee she claimed occurred in a fall some days earlier.

19. At that point, the witness was temporarily excused and Ms Jones, for the Crown, made an application for leave to cross-examine the witness concerning prior statements attributed to the witness more favourable to the prosecution case than her testimony to that point.

20. The common law position with respect to unfavourable witnesses has now been modified by s 38(1) of the Evidence Act. It provides:**

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement.

**21. Ms Jones tendered statements by police officers in support of her application for leave. They were not objected to.

22. It was foreshadowed by Ms Jones that her application would also seek to engage s 38(3). That is:**

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

**23. Constables Booth and Gregory stated that they attended the accused's address in response to a 000 call. They had an altercation with and arrested the accused as a result. That is the subject of the guilty pleas referred to above.

24. Whilst they were dealing with the accused, applying handcuffs, Ms Glennie emerged and said to the accused, several times:**

I didn't call the police, Jake called them, I didn't do it.

Ms Glennie, in apparent response to that assertion, said:

**25. The latter is relied on as a statement inconsistent with Ms Glennie's evidence and inculpatory of the accused.

26. Both officers observed signs of recent injury to Ms Glennie's lip and nose as well as the bruises referred to by Ms Jones in the course of Ms Glennie's examination in chief.

27. Constables Byrne and McSpeerin also attended. They arrived during the arrest of the accused and assisted Constables Booth and Gregory to restrain him.

28. They each recorded a similar, though not identical conversation between the accused and Ms Glennie.

29. Adam v The Queen (2001) 207 CLR 96 decided that, if evidence of a witness's prior statement was permitted to be given in evidence under s 38 of the Evidence Act it was admissible not merely for credibility purposes (see s 102 of the Evidence Act) but as evidence of the truth of the matter asserted by it, falling within s 60 of the Evidence Act:**

1. The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.

30. Further, the witness's representations concerning being hit in the head by the accused would also qualify for admission pursuant to s 66(2) of the Evidence Act. That subsection provides:

(2) If that person [that is, the person who made the representation] has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

(a) that person; or

(b) a person who saw, heard or otherwise perceived the representation being made;

if when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

**31. There is an exception in the case of a statement of intended evidence. Such statements are not excepted from the hearsay rule even if "fresh in the memory" (see s 66(3) of the Evidence Act).

32. There remains, of course, the general discretions to reject or limit the use of evidence under Pt 3.11 (ss 135 to 137 of the Evidence Act). However, it was not suggested that any ground for doing so was present in this case.

33. Accordingly, I granted leave to Ms Jones to cross-examine Ms Glennie concerning her alleged prior statements on the ground that her evidence was unfavourable to the prosecution case. I could not find that s 38(1)(b) of the Evidence Act applied (not making a genuine attempt to give evidence), as, on the face of it, she merely denied recollection of any inculpatory details. Nor can the existence of the contrary asserted facts be assumed in order to be so satisfied. Section 38(1)(c) of the Evidence Act was also problematic as the two versions given by the witness were not, in terms, inconsistent.

34. In the course of that cross-examination, Ms Glennie denied that the accused had, that evening, prior to police arrival, struck her either by punching or kicking.

35. She opined that Jake may have called the police because he must of heard lots of yelling and just got scared. She agreed that she had given Jake her mobile phone but denied it was in case the accused became violent. She denied that she would have said, as reported by the police witnesses, 'You hit me in the head'. However, she conceded that she was not sure if she did say that but, if she had said it, it was not the truth. Apparently accepting that she had said it, she explained it as just being 'angry with him' and 'awful to him' but, at the same time, she said, she had not wanted to get the accused into trouble. She did not recall, she said, nodding in agreement when a police officer asked her if she had been hit by the accused.

36. It was suggested to her that her exculpatory evidence was false, influenced by her dependence on the accused, at least until shortly after the committal proceedings. She agreed that she did not want to see him in gaol. They remained friends.

37. In cross-examination by Mr Archer, Ms Glennie agreed that she had been drinking beer that afternoon. She had been crying and upset and Jake would have seen that. She also agreed that on a prior occasion she had made an untrue complaint of a similar nature to police concerning a former partner and had been convicted of doing so.

38. It is apparent that the Crown case was that Ms Glennie was not a witness of truth and was not using her best endeavours to accurately and frankly disclose the events that occurred within the house at Kaleen on 30 March 2006 between herself and the accused. I agree with that assessment of the evidence of Ms Glennie. Whilst rejection of her evidence where it conflicts with other evidence does not supply positive evidence of the guilt of the accused it represents no obstacle to the acceptance of such contrary evidence as exists.

39. I remind myself, however, that, in the absence of any direct evidence that the accused assaulted Ms Glennie, the case against him is circumstantial.

40. There was then an application by the prosecutor to call Jake, the young child, to give evidence. He is now aged eight years. Pursuant to s 11 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) the child was separately represented by Mr Ken Hubert, a lawyer. This was, of course, entirely appropriate, particularly given the Crown case that the child's evidence would be contrary to the evidence of his mother and, indeed, contrary to the interest she had expressed in advantaging the accused. By virtue of s 8 of that Act, the evidence must be given from a remote location by audiovisual link. I note that none of those provisions are inconsistent with the Evidence Act.

41. The Evidence Act deals with the competency of persons as witnesses in s 13. Section 13 provides:**

Competence: lack of capacity

(1) A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence.

(2) A person who because of subsection (1) is not competent to give sworn evidence is competent to give unsworn evidence if:

(a) the court is satisfied that the person understands the difference between the truth and a lie; and

(b) the court tells the person that it is important to tell the truth; and

(c) the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding.

(3) A person who is incapable of giving a rational reply to a question about a fact is not competent to give evidence about the fact, but may be competent to give evidence about other facts.

(4) A person is not competent to give evidence about a fact if:

(a) the person is incapable of hearing or understanding, or of communicating a reply to, a question about the fact; and

(b) that incapacity cannot be overcome.

(5) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.

(6) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.

(7) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit.

**42. It is clear that there is an inherent difficulty in a child not yet 10 years of age giving evidence. It is conclusively presumed that such a child lacks criminal responsibility (see s 25, Criminal Code 2002 (ACT)). Hence, there is no sanction that can, in law, be imposed on such a child for giving wilfully false evidence or for contumeliously refusing to give any evidence.

43. Nevertheless in R v Brasier [1730] EngR 38; (1779) 1 Leach 199 it was held that even a child under seven might be sworn if that child possesses, in the Court's opinion, a sufficient knowledge of the nature and consequences of an oath. Even absent the religious consequences of an oath being understood, it was held in R v Hayes [1977] 2 A11 ER 288, 291 that a child might be sworn if the child (per Bridge LJ):**

... has a sufficient appreciation of the solemnity of the occasion, and the added responsibility to tell the truth, which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty of normal social conduct.

**44. Why any person, let alone a child, who has no appreciation of the religious consequences of an oath should be permitted to take an oath, is not explained by his Lordship. Indeed, generally speaking, the Oaths Acts of the various States and Territories would prohibit an oath being administered in such circumstances (see for example, Oaths Act Amendment Act 1884 (Qld), s 2). In R v Brown [1977] Qd R 220 the Queensland Court of Criminal Appeal held it was appellable error to allow child witnesses to be sworn in such circumstances, even if they appeared competent to give evidence on affirmation.

45. But the competency to give evidence on affirmation depends on an expectation of legal punishment which no child under 10 could reasonably have.

46. In reliance on Cheers v Porter [1931] HCA 51; (1931) 46 CLR 521 (particularly per Dixon J), Williams J in R v Brown (supra) held (at 237-238):**

... It seems to me, with respect, to be completely unanswerable that the law as it stands requires that once the matter is appropriately raised before the judge, no witness can be sworn on oath who has not some religious belief in a God or other Supreme Being such that an oath would or should have some binding effect on the witness' conscience.

...

Whereas until recently a child aged 7 years and older could be liable for certain criminal offences that age was from the first day of July 1976 altered to 10 years. It would seem to follow then that if a child under the age of 10 does not qualify to take an oath that child could not give evidence unsworn in a criminal trial and of course would not comply with the provisions relating to making an affirmation which provide expressly for a penalty should the person fail to tell the truth.

47. For this Territory the relevant Act is the Oaths and Affirmations Act 1984 (ACT). Section 14 provides:

(1) In any case where an oath is required or permitted by law, a person is entitled, instead of taking such an oath, to make an affirmation.

(2) This section has effect notwithstanding anything contained in any other Territory law.

48. Section 15 deals with competence.

_Where a person required or permitted by law to take an oath - _

(a) appears to a person before whom an oath may be taken to be incompetent to take an oath; or

(b) is objected to, on grounds a person before whom an oath may be taken considers reasonable, as incompetent to take an oath;

...

the person before whom an oath may be taken may require that firstmentioned person to make an affirmation instead of taking an oath.

**49. It was the common position of the prosecutor and Mr Hubert that Jake was not competent to give sworn evidence, that is either on oath or affirmation.

50. Nevertheless, Jake was examined before me by remote TV link by his representative, Mr Hubert to address the question as to whether Jake should give unsworn evidence. Jake could understand that, not being 12 years of age, it would be a lie to say he was of that age but said that he did not know what it meant to break a promise to tell the truth. Whilst he asserted that he understood that it was important to tell the truth in the proceedings it was not apparent that he regarded it as an obligation or a matter of great significance.

51. Ms Jones referred to R v Brooks (1998) 44 NSWLR 121. In that case the Court of Criminal Appeal held that 'evidence', not being sworn or affirmed by virtue of s 13(1) of the Evidence Act was not admissible, notwithstanding s 13(2). In that case, however, the trial judge had failed first to find the witness incompetent to give sworn evidence.

52. Grove J in that case adverted to the provisions of s 13(2) of the Evidence Act. Those provisions apply only if the witness is not competent to give sworn evidence. That implies that the witness does not understand or does not accept that he or she is under an obligation, religious or civil as the case may be, to give truthful evidence.

53. The giving of unsworn evidence is an option only if ss 13(2)(a),(b) and (c) of the Evidence Act are satisfied. I take that to require that the court be satisfied that the prospective witness understands the difference between the truth and a lie, though there is inherently a difficulty in accepting that, if the witness is, simultaneously, incapable of understanding that he or she is "under an obligation" to give truthful evidence. However, that is certainly a possible state of mind that a witness may have, that is, that the witness intends to tell the truth even if not obliged to and appreciates that he or she is under a duty, even if only a moral duty, to do so.

54. The same issue was adverted to in R v JTB [2003] NSWCCA 295 (3 October 2003).

55. I should also refer to R v Climas [1999] SASC 457; (1999) 74 SASR 411. The Court of Criminal Appeal considered amendments to the Evidence Act 1929 (SA). They had a similar effect, in some respects, to the provisions of ss 12 and 13 of the Evidence Act. A witness capable of giving sworn evidence may freely choose to take an oath or make an affirmation. There is no age limit. The essential consideration (per Duggan J at 416-7) is the ability to understand the obligation of telling the truth in the witness box. As to a witness under 10 years of age, his Honour said (at 419):**

... despite the absence of a criminal sanction for not telling the truth, it remains appropriate in the case of children of this age to regard the obligation to be truthful referred to in s 9(1) as alluding to the importance of telling the truth in the witness box as a serious matter which may have serious consequences for the accused.

**56. As to the alternative where that understanding is lacking, the prerequisites are the same as under s 13(2) of the Evidence Act.

57. That can apply, Duggan J held, only to cases where there is present an understanding as to:**

... the importance of telling the truth in the witness-box, and indeed the crucial importance of telling the truth in the witness-box by comparison with other, everyday occasions on which the sanction and solemnity of the oath are not invoked.

(at 419, citing with approval King CJ in R v Whittingham (1988) 49 SASR 67,69).

**58. Lander J in R v Climas (supra) examined the legislative history of the requirement for sworn evidence in some detail. Evidence received without the sanction of an oath or affirmation is, it is clear, and Lander J affirms this, of lesser weight and credibility than sworn evidence.

59. His Honour allowed that a child under 10 might have sufficient understanding to give sworn evidence even though no legal sanction for not being truthful could be imposed. The point was made that there is no distinction made as to the entitlement to give evidence between a person who may make an oath and one who may make an affirmation.

60. What then as to a child under 10 who would choose an affirmation?

61. The question remains one of capacity, not amenability to punishment, though that may be relevant in a particular case to a conclusion concerning capacity and sense of obligation.

62. Once lack of capacity to give sworn evidence is found to be present, the question that remains is not only of the capacity to give unsworn evidence but also of the fairness to the accused in allowing it. In the case of a minor child, under the age of 10, there is, in my view, also a question of the interests of the child. By way of example, it would, in some cases, be damaging to a young child to force him or her to give evidence against a parent, without any compelling public interest in requiring it. That discretion is not necessarily satisfied because the child himself or herself does not object to giving evidence.

63. To my mind, the child Jake, though able to give to Ms Jones examples when questioned of what was a truthful statement and what was a lie, did not seem to understand why it was important to tell the truth rather than a lie. I appreciate that is not an easy concept but it is a significant one. The provision requiring the court to tell the person proposing to give unsworn evidence that it is 'important' to tell the truth, is not a mere ritual. The court has to be satisfied that the witness not only accepts but also understands that obligation. I was not satisfied that Jake had a sufficient understanding of that concept. I therefore ruled that s 13(2) of the Evidence Act had not been satisfied.

64. In any event, as Mr Hubert submitted, there remained the discretionary judgment as to whether the evidence should be received in that form in any event. It is unnecessary to determine that but I am far from persuaded it should be in the circumstances of this case, where the custodial parent has a different interest.

65. It was, in any event, by no means apparent that the child had personally witnessed any event between his mother and the accused, save, of course, for the sound of the argument between them. That the child observed something of the kind, of course, emerges as the reason for the 000 call which is only consistent with some such altercation.

66. The tape and transcript of the 000 call were then tendered.

67. I am satisfied that the call was made by Jake and contained, relevantly, the following statements:**

Jake: Bradley Cooper's hurting my mum.

...

Operator: ... who's the male that's hurting your mum?

Jake: Bradley

Operator: Do you know Bradley's last name?

Jake: Cooper

...

Operator: What is he using to hit her? Is he using his hand? Has he got a weapon or anything?

Jake: No, he doesn't have anything. He's kicking and punching her, and stuff like that.

**68. That, of course, is not evidence of an assault but it is corroborative of some altercation that could lead to a conclusion that physical confrontation was occurring.

69. Sergeant Booth (Sergeant Booth then was a Constable) and Constable Gregory were directed to attend.

70. Sergeant Booth deposed to the conversation which Ms Jones had put to Ms Glennie, namely, that what she had said to the accused, concerning the police presence:**

I didn't call the police honey, I didn't call them, Jake called them.

The accused then yelled:

I didn't do anything.

Ms Glennie then said:

You hit me in the head.

**71. Clearly, that statement could only have been directed to the accused.

72. Observing marks upon Ms Glennie he took to be bruises, Sergeant Booth asked her if the accused had hit her. He received a response in that she nodded her head, in an affirmative manner. She refused, however, to provide a statement.

73. A photographer attended. The photographs were tendered. Sergeant Booth's testimony was not challenged. Constable Gregory supported Sergeant Booth's evidence. It was also unchallenged. He also observed injury to Ms Glennie's face, a swollen nose, fat lip and blood on the top of her lip, plainly consistent with recent trauma, though the bruising is not obviously so categorised and might well be, as Ms Glennie asserted and Ms Jones suggested by her questioning of her, unrelated to the events of 13 March 2006.

74. I have to say that the photographs, as tendered, seem to me to support Sergeant Booth's observations.

75. On the basis of all that evidence, I was satisfied that there was a prima facie case that the accused had assaulted Ms Glennie by striking her in the head, that is, in the nose and mouth area. I rejected Mr Archer's no-case submission accordingly. There is no evidence supportive of any more extensive assault.

77. Ms Jones relied on the evidence of injury, the prior inconsistent statement and the circumstances of the 000 call as sufficient to find guilt.

78. Mr Archer submitted that a reasonable doubt should be entertained. The injuries, as noted and photographed, were not supported by any medical evidence to support their consistency with assault. The complaint, disavowed as it was by Ms Glennie, was of a 'hit' to the 'head' not the mouth.

79. He pointed out that swelling appearing in a photograph can be misleading. It is not a three dimensional medium.

80. There are a number of issues that arise for comment as a result of these submissions.

81. The first is as to the inferences available to be drawn. R v Adam (supra) makes it clear that the court may decide that a prior inconsistent statement of a witness represents the truth, rather than his or her sworn evidence. It is necessary to use caution in coming to such a conclusion. First, the statement, as in this case, may be disavowed on oath. The contrary statement is neither sworn to nor, realistically, can it be fully cross-examined upon, though, the maker being present, she can be asked, as she was in this case, why, if it was made, it was a false statement rather than the truth.

82. Given Ms Glennie's lack of credibility, supported by my assessment of her demeanour in the witness box and her past history of a false statement to police to cause trouble for a prior partner, I could not accept either of her versions of events beyond reasonable doubt absent cogent corroborative evidence.

83. Such corroborative evidence may be drawn from the signs of physical injury to Ms Glennie's face. That injury is consistent with a blow to the head by a fist or hand. There is no evidence to support a hypothesis that it was sustained accidentally, consensually or in self-defence. Nor is there any evidence to suggest that some person other than the accused might have struck such a blow.

84. There is also the phone call to 000. Whilst this is not direct evidence of an assault it is part of the res gestae of the event alleged to constitute such assault. Res gestae simply refers to a statement which, though it may infringe the hearsay rule, the opinion rule, the rule against self-corroboration or the character rule (or, indeed, any other exclusionary rule) is admissible as part of the event in question.

85. It must be evoked by the event otherwise than by being a mere narrative of it (see for example, R v Hissey (1973) 6 SASR 280). It is an issue as to whether the touchstone for admissibility is mere contemporaneity or spontaneity.

86. For Australia, the operative statements remain those of Lord Wilberforce in Ratten v R [1972] AC 378. A telephone operator gave evidence of an emergency call from a woman apparently in a state of fear of attack. She could be no other than the murder victim. Her statements were admitted as evidence of their truth. Thus the utterance (at 389-390) could:**

... safely be regarded as a true reflection of what was unrolling or actually happening ....

**87. In the present case, I have no doubt that the phone call made by Jake was evoked by and contemporaneous with the event referred to by Ms Glennie in her utterance of a 'hit' to her head by the accused. I do accept the limitations of this evidence. It is not to be taken as evidence that Jake was directly observing a blow or blows struck by the accused. Rather, it is evidence of a disturbance consistent with that kind of event and so corroborative of the assault referred to by Ms Glennie in her unsolicited statement to police shortly after the alleged assault.

88. In this matter the accused did not give evidence. He was not, of course, under any obligation to do so. Nor can any adverse inference be drawn from his decision not to do so. Nor does that lack of evidence from the accused fill any gaps that otherwise there may be in the prosecution case. It does not add anything to the weight of the prosecution case. Subject to those observations, it may, in some cases, enable the inference of guilt otherwise apparent from the prosecution case to be more safely drawn - see Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217; Azzopardi v The Queen (2001) 205 CLR 50.

89. This is such a case. The accused knows if he struck Ms Glennie. Her statement to police is not controverted by him. It is, in my view, a statement which represents the truth of the matter given the corroborative evidence I have referred to, absent some doubt based on accident, consent or self-defence. No such doubt arises.

90. Accordingly, I have no doubt that the accused is guilty of the offence charged though I am not satisfied that it consisted of more than a single blow to the head.

91. I record a verdict of 'guilty' to the count charged in the indictment.**

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the plaintiff: ACT Director of Public Prosecutions