R v Death

District Court of NSW|2019-10-24

Judgment

Mr Death appeals against a finding of guilt of assault occasioning actual bodily harm, domestic violence related, contrary to s 59(1) of the Crimes Act 1900 by Local Court Magistrate Brender on 11 September 2019.
The appeal is brought pursuant to s 18 Crimes (Appeal and Review) Act 2000. An appeal against conviction is a rehearing based on the transcript and exhibits in the court below. A s 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244 at [16] - [24]; Dyason v Butterworth [2015] NSWCA 52 at [26].
The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 where the judge is to form his or her judgment of the facts recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court: Dyason at [27]. The powers of the District Court on a s 18(1) rehearing are exercisable where the appellant demonstrates that the order, the subject of the appeal is the result of a legal, factual or discretionary error in which the event the appellant can substitute its own decision based on the facts and law as they then stood: Dyason at [28]
It is submitted by Mr Cronin who appeared below and appears on this appeal that the decision of the Court is based on a factual error by the learned magistrate.

THE DEFENCE CASE

The defence case relied upon the evidence of the appellant, who elected to give evidence. His evidence-in-chief was on 25 July 2019 and he was cross-examined on that day. The appellant in his evidence in chief and throughout his cross-examination said that the complainant had simply lost control. The appellant stated that the complainant had been on medication for mental health issues and that when she is on such medication she is "the greatest person in the world." The appellant gave evidence however that the complainant's behaviour becomes erratic when she is "off her medication."
This is significant in that he had been in a relationship with her for 18 months and had the advantage of observing her during that period of time when she was on and off her medication. The appellant says that upon their return from the Ettamogah Hotel, the complainant attacked him. The appellant says that he grabbed her around the waist to try and control her. He says that he eventually let her go and she left the premises. He says that she was dressed in the clothing that she wore to and from the hotel. The appellant says that he then went to bed. He stated several times in his evidence in chief and under cross-examination that when the complainant loses control, such as on this evening, she generally calms down by the next day.
The appellant says that the complainant returned to the premises and charged the large glass door, leading from their bedroom to outside on a number of occasions. He says that the complainant threw a rock at the glass door on a number of occasions. The appellant says that the complainant was naked and eventually he observed her at the glass door striking it with a shovel. The appellant says that the complainant succeeded in breaking the glass door and that the complainant then commenced assaulting him with the shovel. The appellant says that he recovered the shovel from the complainant and used it to keep the complainant away from him.
The appellant alleges that the complainant suffered a number of injuries as a result of falling on the shattered glass. Which she said she did in the DVEC. Eventually the appellant was able to subdue the complainant after she had fallen on the ground outside by putting his foot on her chest. This is, as I understand it, is not the allegation of assault. It is the striking by the shovel repeatedly over a 30 minute period that is the alleged assault. The appellant says that eventually the complainant got up and left and drove away in the vehicle in which she had returned to the premises and that the engine of the vehicle was running the whole time.
The appellant denied assaulting the complainant and stated that all of his actions with respect to physical contact with the complainant were to protect himself and to subdue her. It is not in dispute that the complainant suffered at some stage one chipped tooth as opposed to broken teeth, as asserted by her. It is one aspect of the appeal that has troubled me greatly. However, the single chipped tooth may have occurred in a number of ways including when she ran and hit the door with force, front on, on a single or several occasions. On the appellant's version she may have come into contact with the shovel when she was wielding it while smashing the door or coming into contact with the doorframe when she entered the premises or when she went to ground after smashing the door. This list is not exhaustive, there are numerous possibilities.

INJURIES TO THE COMPLAINANT

The complainant alleges that she was bashed by a shovel by a powerful, large man for 30 minutes. The timeframe, object and force are not consistent with the injuries sustained. It calls into question the reliability of the witness. Bruising on the neck, the appellant admits placing his foot on her neck when she was on the ground, the injury is consistent with the appellant's version. The magistrate referred to "blood all over", the blood came from lacerations to both knees, the complainant said that she crawled through glass in the DVEC, the injuries are consistent with the appellant's and the complainant's version that she crawled through the glass.
The injuries, whilst consistent with some of what the complainant states are also consistent with the appellant's account. In a situation where both accounts are open on the evidence it leaves a reasonable hypothesis consistent with innocence.

CONCLUSION

After a careful review of the evidence, I do not disbelieve the complainant nor do I disbelieve the version given by the appellant. As I am left in that state I cannot be satisfied to the highest standard known to the law that is beyond reasonable doubt. I may have strong suspicions about the conduct of the appellant but that is not proof beyond reasonable doubt.

ORDERS

I allow the appeal and I find the appellant not guilty.

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: 20 November 2019

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Cases Cited (5)

Cited By (1)