R v Guider

Approach to conviction appeals

1. I have outlined my approach to conviction appeals from the Local Court many times. In R v Scott [2023] NSWDC 271, I said at [5]-[6]: "2. Section 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW) provides that the appeal is a rehearing on the certified transcripts of evidence and the exhibits tended in the Local Court. The proceedings are not an appeal de novo. 3. The court must give the judgment which, in its opinion, ought to have been given in the first instance. 4. The appellant must demonstrate factual, legal, or discretionary error to succeed. 5. That said, the term 'error' has no precise meaning and refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgement of the trial judge will not be set aside unless the appellate judge is satisfied the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of 'error' in the ordinary meaning of that term. 6. The requirement that the appellant show error does not reverse the onus of proof. At all material times, the prosecution bears the onus on establishing guilt beyond reasonable doubt. Demonstration of error can mean no more than satisfying the appellate judge that the magistrate should not have been satisfied beyond reasonable doubt as to the appellant's guilt. An appeal must be upheld unless the appellate judge is satisfied of the appellant's guilt beyond reasonable doubt. 7. The appellate judge must form their own judgment on the facts and determine on the basis of the evidence that was before the magistrate, whether the evidence was sufficient to demonstrate the appellant's guilt beyond reasonable doubt." 6. However, to this statement of principles, I would add the following, which essentially relate to forensic limitations upon this Court in respect to appeals of this kind: 1. there is no requirement of the Judge on appeal in this Court to undertake a free-standing review of all of the evidence in the absence of guidance and submissions from the parties: Lunney v DPP (2021) 105 NSWLR 236 at [3], [29]-[30]; and 2. the appellate judge is not precluded from referring to the reasons for decision of the Local Court Magistrate and findings by the Magistrate as to the credibility of witnesses: McNab v DPP (NSW) (2021) 106 NSWLR 430 at [73]; 3. in particular, (and as a function of the appeal being conducted on the basis of the transcript and exhibits in the Local Court) where credit findings are made by the Magistrate, the appellate judge recognises the advantage of the Magistrate in hearing and seeing the witnesses; however, whilst recognising that advantage, the appellate judge will, in practice, be focussing on the question whether disputed evidence (especially in a 'he said, she said' type case) is consistent with incontrovertible facts, undisputed facts and other relevant evidence: McNab at [32]."

The Crown case

1. The complainant was the Crown's main witness. She gave evidence of being in a relationship with the appellant when, one night on 3 July 2023, she said she had been using her phone and noticed that her bank account had been overdrawn. She got upset about this and started sending messages to her former husband. She said the appellant learnt that she had contact with the former husband and he himself got upset. They got into an argument, and the appellant accused her of wanting to leave him. At some point she said he pushed her head against the wall which was behind the couch upon which she had been seated. He had called her certain names.
2. She said that accused had a vape. She wanted to use it to calm herself down. There appeared to be a struggle for it. She said he put his hands on her upper body in the region of her shoulders and pushed her. Then he put his hands around her neck and started to choke her, placing pressure on her neck for two minutes. She said she could barely breath. At or about this point, she also said he bit her on her cheek. She said she noticed the mark after he had left, but it was not bleeding. She also said she sustained marks around her neck.
3. The complainant said that she intended to throw the vape. She said that she intended that it not contact the appellant: she only wanted to throw it to divert him away from her. But in the act of throwing the appellant moved his head she inadvertently touched his face. This only brought more choking on her account.
4. The appellant left the premises after packing. She said he took a key and threw it in the bushes. She could not locate the key. The complainant rang her ex-husband, who came around telling him that she had been assaulted. She took some photos of her face and neck. The photo of her face was Exhibit 3 in the Local Court hearing. Other photographs including her neck and shoulder area were Exhibit 2. The learned Magistrate noted that in Exhibit 3, there was no noticeable injury under her eye and the complainant's explanation was that the image had itself been filtered.
5. The prosecution did not call as a witness the ex-husband as a witness to corroborate the complainant's evidence that she complained to him about the incident or provide observations of how she looked to him.
6. She reported to police, but not before 3 weeks or so had passed. She said she provided the police with the photos that she said she took on 3 July.
7. Under cross-examination, the Magistrate noted, she mixed up the sequencing between when her head hit the wall and when she asked the appellant for the vape. She was also challenged as to why she herself did not leave the house and why she made no more immediate complaint to police when she did. Further she was asked whether she saw a doctor. She said she did not because she felt shame. The Magistrate noted that the appellant had appeared to give additional evidence of the appellant bumping her shoulder whilst they were both upstairs when that evidence had not emerged from her police statement.
8. The appellant elected to give evidence. The learned Magistrate recognised that he had no obligation to do so and directed himself consistently with the first and second limbs of the Liberato direction. He also correctly directed himself as to the standard of proof that the prosecution needed to surmount.
9. The appellant effectively agreed that the complainant was upset or concerned about a lack of money. But unlike the complainant, the appellant said that she blamed him and criticised him for the lack of contributions he had made to the household. He then gave evidence about a curious exchange in which the complainant invited him to check for himself messages between herself and her ex-husband, which were apparently in Polish.
10. The appellant also agreed that there was a struggle for the vape although on his account, she tried to grab it from him, out of his hand.
11. According to the appellant, it was in the course of this struggle that the complainant went back to the couch when the complainant punched him on his nose. She took the vape and they engaged in a struggle. He said he was trying to protect himself as her hand was flailing and in his direction. But the complainant accused him of assaulting her, he thought unfairly. He accepted that he called her insulting names.
12. The Magistrate noted that the appellant had conceded that he had been jealous in the past of the complainant and her interactions with her ex-husband. He said that there was an incident when the ex-husband had arrived at their door, with her going to the front door wearing only underwear.
13. He accepted that he packed his belongings and also accepted that he threw a key. He was shown photographs comprising Exhibit 2. He denied seeing those marks at the time. He denied the conduct attributed to him by the complainant giving rise to the 3 charges.
14. The Magistrate noted that the appellant was a person of good character and directed himself that this was relevant both the likelihood of his committing the offences as well as the credibility of the version he had given.

The critical reasoning

1. The Magistrate accepted the complainant was a witness of credit and generally found that her evidence had the ring of truth. The Magistrate found that the photographs in Exhibit 2 were consistent with her allegations and further accepted that the photograph in Exhibit 3 had been filtered as the complainant had explained.
2. The Magistrate then considered the appellant's account. Two matters were said to cause him reservation. First, his concession that there was a degree of jealousy. Although he acknowledged that the appellant had denied jealousy on the night, in effect, the Magistrate found that he had a jealous mindset; liable to be triggered. The Magistrate emphasised that one of the insulting names he had called the complainant was a 'whore', which suggested that, contrary to his protestations, he was actually jealous of the complainant and her relations with her husband that night.
3. Secondly, the Magistrate appeared to resort to logic. If, the Magistrate questioned, the appellant had acted in the way he said he did, it should be regarded as exemplary, and had done nothing wrong, but the rhetorical question remained why it was he, and not the complainant, who left the home. This logical reasoning caused him to doubt the appellant's reliability. Especially was that so when, according to his Honour, the complainant sought to reconcile with the appellant not long after.

The appellant's grounds of appeal

1. The appellant grouped his written submissions around 4 topics.
2. The first was the question of injuries and the Magistrate's findings based on his observations of photographs. The appellant submitted that Exhibit 3 did not help (to prove the element of actual bodily harm for sequence 2) since although the complainant provided explanation, it remained the case that they did not appear to depict injury. Nor did Exhibit 2. There was nothing objectively to show when the photographs were taken before being provided to police no sooner than 3 weeks after the incident.
3. The Crown's response was that the lack of investigation into metadata as to when the photographs for Exhibit 2 were taken did not detract from their probative value. Further, whatever might be said about Exhibit 3 did not preclude proof of actual bodily harm and the complainant's evidence was unshaken.
4. Secondly, the appellant submitted that a Mahmood direction should have been given. On the prosecution case, the complainant had contemporaneously complained to her ex-husband and he came over to check on her. His evidence could have been probative not only of the fact of complaint, but also the extent of injuries he observed and his general observations of her behaviour. There was, on the appellant's account live issues on each of these matters and in relation to Exhibit 2, evidence from the ex-husband might have made up a weakness of proof as to when those particular photographs were taken.
5. The Crown accepts that a Mahmood direction should be applied. Nevertheless, the Court could still be satisfied to the requisite level of proof even in the absence of that evidence. Mr Crown argued it was not uncommon for offences of this kind to be found proven on a word on word case without complaint witnesses. The Crown argued that if the Court was satisfied about sequences 1 and 3, it should follow that the Court would be satisfied of sequence 2.
6. Thirdly, it is said that the Magistrate misapplied Liberato. Essentially, the appellant argues that concessions he made about the choice of the insult 'whore', and the presence of a situational circumstance of his being angry, frustrated or upset should not have been found to diminish the plausibility of his account. His account that there was a scuffle over the vape had the ring of truth and his account about the complainant punching him was also plausible. Applying the second limb of Liberato, it should have been found that his version might be true.
7. The Crown adopted as correct the Magistrate's view that his leaving the home was inconsistent with his version. Further, it argued that contrary to what the appellant suggests, there were instances where he did not, or rather delayed, in making concessions against his interest. In some instances, the Crown said, it was malicious.
8. Fourthly, although the Magistrate directed himself as to the two uses of good character, the direction was not properly applied. This was especially so as to the credibility of his evidence, in a 'word on word' case, when he was 38 years of age.
9. The Crown accepts that a good character direction was warranted, in both senses, but since it afforded no defence, as such, it did not preclude findings of guilt.

Consideration

1. This was a word against word case in the context of the fraught environment of a domestic dispute. It is common ground that there was a physical scuffle of one kind or another, even if that involved the use of the vape.
2. The Court is concerned with the narrowness of the critical findings that the learned Magistrate made. Whilst ostensibly directing himself in terms of Liberato, on its face, the reasoning was substantially one of preference for the complainant's version of events over that of the appellant; with reasons expressed for that preference. Of course, it is never enough for proof of a crime for the offence to be proven on the probabilities. The standard of proof, which is beyond reasonable doubt, is demanding.
3. It is true, as the Magistrate said, that when an accused person elects to give evidence, such evidence is to be weighed on its merits, as is other evidence. It is also the case, however, that when an accused gives a version, if it might be true, the verdict should be one of acquittal.
4. In the circumstances, I do not find persuasive the Magistrate's resort to logic, as to why it was the appellant, and not the complainant, who left the home as being a reason for rejecting the appellant's version as being possibly true. She had her children from her previous marriage upstairs. Objectively, it was plausible that the appellant would leave even if he felt he felt he had right on his side. There is force in the appellant's submission that if the accused's version was right - the starting premise - in his mind, he had good reason to leave.
5. Secondly, evidence of good character had bite in this particular instance. In my view, the learned Magistrate had to exercise particular care before finding that he had a jealous mindset which could be easily triggered. That view had to be weighed in a context where he had no prior convictions for domestic violence. It was not. Relevant here is also the circumstance, again redounding well to his credit, that he did make certain concessions, even if they were delayed.
6. I consider, with respect, that the learned Magistrate misapplied the second limb (at least) of Liberato.
7. But if this was wrong, so that the Court has to move to the third limb of Liberato - whether the Crown proved its case beyond reasonable doubt after putting aside the appellant's evidence - there is in my view doubt.
8. The Magistrate found that the complainant was a witness of credit and was reliable. Plainly some deference needs to be given to that finding, but it was still the case that the Magistrate pointed out some aspects of her evidence which appeared troubling, such as her adding additional matters that had not been referred to in her police statement and why she did not seek treatment or at least inquire into the state of her injuries. It is, with respect, questionable whether the Magistrate applied a Murray direction.
9. More pertinently, however, there was the circumstance of delayed complaint to police; and what appears to be reasonable relations between complainant and appellant in between the incident and the reporting.
10. It is well-established that a Court should take care when placing weight upon photographs (Blacktown City Council v Hocking [2008] NSWCA 144). Exhibit 3 did not manifest injury. There were markings in Exhibit 2, but there is force that there was nothing objective to support the complainant's assertion about when she took them and much to be said for the view that the timing for when the photos were taken could have been expected to have been fairly readily ascertained; with telephone technology being what it now is. It is to recalled that sequences 2 and 3, for example, depended for their full proof upon physical harm, or physical reactions, no matter how fleeting. Contemporaneous and probative photographs or recordings assume particular significance in that context. With respect, I do not find persuasive the suggestion that manifestly undated photographs supplied to police three weeks after an incident furnish convincing corroboration of the injuries the complainant said were caused by the assaults on her.
11. Further, there is considerable force in the appellant's submission regarding the significance of a Mahmood direction from the prosecution's omission to call the ex-husband; particularly given the weaknesses in the photographic evidence I have referred to. There is additional force that the ex-husband could also have given evidence of complaint and the complainant's behaviour generally.
12. I reject the Crown's argument that because there was evidence to sustain some sequences, it was but a short step to accept the other sequences was established. That inverts the usual separate consideration charge that the Magistrate would needed to have made. More relevantly, in view of Markuleski, the Magistrate might have asked himself that if there was doubt about one of the sequences, because, for example, reliability in what the complainant had said about one sequence, what light that shed on the other sequences.
13. This is not to say that the appellant's conduct did not invite suspicion. But in the circumstances of this case, as I have said, I am not satisfied that the Crown made out each and every one of the sequences beyond reasonable doubt.
14. The Court orders: 1. The appeal against convictions is allowed. 2. The convictions for sequences 1, 2 and 3 by the Parramatta Local Court on 10 May 2024 are set aside and in lieu, the appellant is found not guilty in respect to each sequence. 3. Necessarily, the aggregate sentence for the sequences is also set aside.

Amendments 16 December 2024 - Parties amended and catchwords corrected 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: 16 December 2024