R v Kaikaty

This appeal

1. The appellant now appeals those convictions.

Approach of this Court on appeals from the Local Court

1. The approach I take to such appeals has been set out on numerous occasions, most recently in R v Guider [2024] NSWDC 588, in which I referred to the approach I had adopted in R v Scott [2023] NSWDC 271. Those principles are incorporated by reference.

The Crown case

1. The Crown case was that after returning to the home apartment from the car park, the appellant was in such an angry mood that he grabbed the complainant's jaw with his hand, squeezed it and pushed her head back against the wall. He had said that she had embarrassed him in front of his father.
2. Later that day, he called the complainant's names, and mocked and belittled her. Then, he asserted that she had misled him and said to her "I should have killed you. You misled me since before we got married. I won't let you do that to another man again. You should be dead". The act of misleading was said to relate to the complainant's inability to conceive.
3. The Crown case relied upon the complainant's evidence; but also the evidence of Constable Palmer, the officer-in-charge who took a body-worn footage of the complainant's account as well as photographic evidence of the complainant's injuries and made personal observations of the injuries he said he saw.

The appellant's case

1. The appellant did not dispute that there was an acrimonious dispute with the complainant on the date of the alleged offending, but denied assaulting or intimidating the complainant.
2. He said that his father had come around at about 1pm on 6 January 2023. Both of them intended to collect flowers for his brother's wedding. He said that the argument with the complainant centred upon his multiple needs and usages for her car. After leaving with his father, the appellant did not return until 4:30pm or 5:00pm. Whilst he was out he obtained money in order to repay the complainant. This was another cause of their verbal argument: she accused him of stealing.
3. The appellant said that the complainant deliberately hit her head against the wall and screamed accusations. He said she began to pack her things and he said he wanted a divorce.
4. He argued that the complainant fabricated the case against him, including self-harming; in a way that generated the appearance of physical injuries.
5. The appellant emphasised footage on his mobile phone which depicted her sitting on the bedroom floor or in the bed featuring her hitting her shoulders with a lightweight plastic coat hanger. This was Exhibit 5 in the Local Court hearing.

Common facts

1. The Magistrate started by identifying common facts. There was no complaint in this appeal about that description of these particular facts. These were: 1. On the date of the alleged offending, the complainant and the appellant had been arguing throughout the day about her use of the car; 2. The appellant's father had been privy to this; 3. The complainant yielded to the appellant's demand and allowed her vehicle to be used for his brother's wedding preparations; 4. The appellant left the unit to accompany his father downstairs to the car park; 5. Ultimately, the appellant left the apartment; 6. Neighbours intervened in the altercation on the evening; 7. The complainant reported the incident to police; 8. Very early the next morning (12:25am), two police officers arrived at the apartment; 9. The complainant gave an account which was generally consistent with the phone report she had given police; 10. Injuries to the complainant's facial area were observed;
2. The officers went into the main bedroom; found the appellant sound asleep and awakened him. He was surprised about being arrested.
3. The appellant admitted having drunk alcohol the previous evening, admitted arguing with the complainant.
4. In the appellant's submissions in this appeal, his legal representative said that it was also common ground that after the appellant and complainant married in June 2018, the complainant's inability to give birth had 'created a domestic environment of preexisting arguments'.

The Magistrate's findings

1. After describing the evidence and summarising the parties' submissions, the learned Magistrate gave herself a Murray but not a Liberato direction. The Magistrate reasoned that she was aware of the Crown's onus and standard of proof such that there was 'no risk' that he would decide the case simply on the basis of a binary choice between the Crown case and the accused case. Nor did she give herself a Jovanovic direction even though her Honour considered the appellant's submission that the complainant was motivated to lie.
2. The Magistrate directed herself on the need to separately consider each count.
3. The Magistrate carefully considered the complainant's evidence. Her Honour acknowledged some shortcomings in her evidence, among them being her omission to give evidence (or in the body worn recording) of her striking herself with a coat hanger. Nevertheless, she made concessions and did not appear to embellish. She did not appear defensive and overall was not 'damaged'.
4. The Magistrate then made observations about the appellant. Her Honour found his evidence about his surreptitious recordings of the complainant unpersuasive. The Magistrate was unimpressed with the appellant's evidence of the video footage on his phone. The Magistrate was also "sceptical" of the appellant's denials of her account.
5. Contrastingly, there were matters supporting the complainant's account, and which caused her to prefer her account, among them being: 1. The fact of her immediate complaint to police; 2. The apparent consistency of her injuries with an allegation of assault; 3. The consistency of the body worn footage with aspects of her evidence, including her use of a trolley to remove clothing from the unit and the mirror falling on the ground after her (inadvertently) striking it; 4. The appellant's admissions of his returning to the apartment and his consumption alcohol.
6. Insofar as there was dispute about the facts, the Magistrate found the following: 1. The appellant did return to the unit after the father had left; 2. He was angry because he perceived that the complainant had embarrassed him because of taking issue with the use of the car; 3. The appellant applied force to the complainant in the manner she alleged and he verbally abused her. This act was hostile, was done without the complainant's consent and caused her to be fearful; 4. During their ongoing argument, the appellant used the words that the complainant attributed to him, including a verbal (implied) threat to kill her; 5. The appellant intended that she fear for her physical or mental harm. 6. Later in the day, he applied physical force to her in other ways, including pushing her from behind.
7. For those reasons, the Magistrate was satisfied that all elements of the offences of common assault and intimidation were proven beyond reasonable doubt.

The leave application

1. The appellant seeks leave to adduce fresh evidence under s 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW). Essentially, the appellant sought to rely upon tendency evidence, about the complainant's state of mind and behaviour. The Crown opposed the application for leave.
2. The leave application is supported by the appellant's affidavit dated 2 October 2024. The gist of this evidence was that prior to the incident giving rise to the charges, he had made a series of recordings of the complainant in the months, from October 2022, leading up to the incident in January 2023. More particularly, he said 5 recordings were taken in the week leading up to 6 January 2023 on his iPhone. He deposed to downloading the recordings on his Samsung Notebook.
3. Following his arrest arising from the incidents, and an AVO that had been imposed, he was effectively deprived access to the apartment to retrieve the Samsung Notebook as well as the ability to contact the complainant. Further, he deposed to being misled by the complainant into thinking that the Notebook had been disposed of. In fact, he learnt in June 2024, well after the Local Court hearing, that the Notebook had not been disposed of and he was given it.
4. Upon receiving the Notebook, he retrieved the contents and said he saw the recordings. He did not have the recordings at the Local Court hearing; though he wanted to be able to use them in his defence.
5. The Crown did not dispute that the evidence constituted 'fresh evidence'. The issue was whether leave should be granted. The test for this is what accords with the interests of justice (s 18(2)). With the consent of both parties in this appeal, I watched the 5 videos that the appellant sought to rely upon.
6. Although it was critical of the proposed use of the evidence as tendency evidence for other reasons, the Crown did not take issue with the requirement that reasonable notice had to be given to rely upon tendency evidence.
7. The appellant argued in his written submissions on the admission of this evidence that it illustrated the complainant's 'fragile and hysterical character' and tendencies to 'become hysterical, exaggerate and fabricate' events. This, it is said, is what occurred on the date of the alleged offending.
8. I was not persuaded that it is in the interests of justice to allow for evidence of this kind, for several reasons.
9. In no particular order, it is notable that in the hearing, the learned Magistrate doubted the veracity of the appellant's evidence that he felt it necessary for the protection of his lawful interests that he be permitted to adduce evidence of the surreptitiously recorded incident (without the complainant's consent). The appellant did not, after all, make complaint or take any action consistent with the apprehension that something harmful to him would arise from her earlier asserted episodes of 'hysteria'.
10. The same point can be raised about the proposed fresh evidence. I am satisfied that the content of the videos would enliven the prohibition upon listening devices recording a 'private conversation' in s 7(1) of the Surveillance Devices Act 2007 (NSW). I would not have been satisfied that, for the purposes of s 7(3)(a) or (b) of the Surveillance Devices Act respectively, the recordings were consented to by the complainant or (in the absence of the complainant's consent) would have been reasonably necessary for the protection of the appellant's lawful interests. The evidence, in short, would be inadmissible. This is sufficient reason in itself for not granting the application for leave.
11. There are, however, additional reasons.
12. Secondly, as evidence of the suggested tendency, it suffers for a want of probative value. Prima facie, it was undated. There is no corroborated or objective evidence, beyond the appellant's assertions, that the videos were taken during the week preceding the events giving rise to the offence. There is no objective evidence to indicate that the woman depicted in the films was in fact the complainant. Assuming that it was her, however, it has no contextual link to the facts giving rise to the charges. This point can also be tested this way. Taking the evidence at its highest, even if it did tend to prove that the complaint was 'hysterical', that does not advance the appellant's case in the absence of a detailed an fact-intensive and collateral inquiries as to what, in each and every instance, actually made the complainant 'hysterical'. How she responded in each and every earlier instance indicates nothing as to how she was likely to respond to the alleged conduct giving rise to the charges. The real issues in this case are what the appellant did. This is particularly pointed in the intimidation case since the legislation signifies that it is unnecessary for the Crown to prove that the complainant actually feared physical or mental harm.
13. Thirdly, there is force in the Crown's submission as to how at least some of the suggested specified tendencies in the appellant's submissions were not evidenced by the footage. The footage itself was of poor quality. It was very difficult to make out what the complainant actually said other than the name-calling she directed to the appellant. One of those asserted tendencies to 'fabricate' certain events and to accuse the appellant of creating her physical or mental state; perhaps instilling fear in her being a more appropriate word. That is not however self-evident in the videos. There was no submission that she would lie to police. In the appellant's written submissions in support of this application, there is nothing to suggest that the complainant was asserting that it was the accused who was responsible for her physical or emotional state.
14. Fourthly, to the extent that it is designed to damage the complainant's credibility, either directly or collaterally, it runs into the considerable concern that if it was to be admitted, fairness would indicate a need for the complainant to respond to it. This is of particular significance in cases of this kind since, as the Crown indicated on the application, when Parliament legislated for appeals by rehearing from the Local Court, in a Second Reading Speech on 17 September 1998, the then Attorney General suggested that the purposes of the mode of appeal by rehearing suggested a limited role for fresh evidence, being to: "..largely remove the need to recall witnesses to give evidence on a further occasion when an appeal is lodged … (T)he benefits to be derived … would be a saving in court time in hearing many appeals and reduced trauma for victims and prosecution witnesses, who would not have to give evidence twice in relation to the same matter."
15. To admit this evidence would subvert these purposes.
16. Fifthly, and related to the last points, the evidence is likely to result in a significant waste of time and, for reasons earlier discussed, be misleading or confusing and prejudicial to the Crown's case (through unfairness to the complainant), so as to be inadmissible under s 135 of the Evidence Act 1995 (NSW). As to the aspect of unfairness, the Crown fairly pointed out that it had not been put to the complainant in the Local Court that, in addition to the coat hanger incident, that there were other episodes, closely tied in proximity or context, indicative of her hysteria or other asserted tendencies.
17. Fundamentally, the proposed evidence does not conceivably 'shift the dial' in a way that might reasonably lead to an increased prospect of the appellant securing an acquittal.
18. These are the reasons why I refused the appellant's application. It is not in the interests of justice to admit the fresh evidence.

The appellant's challenge to the Magistrate's reasoning

1. By his legal representative's written submissions, the appellant argued that it should have been found that there was no assault perpetrated against the complainant in the bathroom after the appellant's initial return to the apartment. The Magistrate should have accepted the appellant's denial that there was.
2. The appellant then submitted that, later, there was no assault in the bedroom either. There was doubt about this because of the sheer size of the king size bed in the bedroom and the tight space from where she said she was pushed into the side table or mirror. The appellant's version denying the complainant's account of an assault in this location was plausible. This, it was said, would have required a very significant application of force by him. The complainant did not tell police that her back was sore as a result of the appellant's pushing motion. The complainant's evidence had shifted; from her hitting her head on the dressing table to hitting her head on the mirror. This indicated a level of fabrication. Further, the appellant's evidence gave rise to doubt. He said that he could hear the complainant banging her head against the wall and the complainant accepted that she hit herself with the coat hanger in the bedroom.
3. These matters, it was suggested, told against the complainant's credibility. Further, it was suggested, her injuries may have been consistent with the use of a coat hanger and her deliberate striking against the wall. Given that the complaint is someone who is hysterical, it is readily understandable how she contacted police and made complaint.
4. The appellant argued that the video recording on his phone was supportive of his position and to a degree, also supported by the complainant. He reprised his argument that it is obvious that the complainant is highly strung, self-harms and is irrational. It was suggested she was irrational in their argument about money.
5. The appellant characterised this case as one person's word against another. Her Honour did not give a Liberato direction and simply decided the case on a preference for the prosecution's version. Her Honour overlooked the appellant's version as to how the complainant sustained her injuries.

The Crown's submissions in response

1. As to the incident in the bedroom, the Crown submitted that there was no evidence to suggest that the complainant's description of her movements and how she fell was impossible. To the contrary, it was plausible: she was 'pushed, stumbled and fell' what was in the circumstances quite a short distance. Her account was, as the learned Magistrate had noted, also supported by the evidence of the mirror ending up on the floor. That evidence told against the veracity of the appellant's defence which, in effect, was that nothing happened to the dressing table.
2. As to Exhibit 5, there was nothing to counter the Magistrate's determination that the video was not likely to have been filmed on the date of the offending.
3. The Crown acknowledged that there were two conflicting versions. The complainant's version was cogent, and she gave a contemporaneous version to police. She made concessions, including striking herself with the coat hanger and having suicidal thoughts. But those admitted circumstances were not inconsistent, or perhaps irreconcilable, with her account of the conduct giving rise to the charges.
4. The appellant's account was vague, and his credibility suffered by his attempt to distract the Magistrate by producing undated videos.

Consideration

1. In my view, there were some mistakes by the learned Magistrate. Contrary to her Honour's indication, as was said by the Chief Justice in Haile v R [2022] NSWCCA 71 at [2], in virtually every case of a word against word disputed accounts of incidents, it will "invariably" be necessary for the trier of fact to give themselves a Liberato direction, so as to avoid the risk of the trier of fact deciding the case only on the binary basis of whose version was to be preferred.
2. In fairness to her Honour, this risk was partly mitigated by her express direction to herself about the Crown bearing the onus of proof, and to the standard of proof (beyond reasonable doubt). Nevertheless, as an impression, when reading her Honour's dispositive reasoning, it appears directed to reasons why she preferred the complainant's account over what occurred to the appellant when the ultimate question was whether the prosecution had proved the appellant's guilt of the charges beyond reasonable doubt.
3. Further, I think it would have been useful, with respect, for her Honour to remind herself that it was not necessary to speculate as to why, if at all, the complainant had a motive to lie.
4. These matters said, the circumstances in which rehearing on appeals from convictions in the Local Court to this Court indicate that mistakes of this kind can be remedied in a way that do not necessarily generate a different result.
5. What is plain is that the Magistrate very carefully considered the evidence of each of the complainant and the appellant. Whilst noting that the complainant's evidence was not unblemished, it is plainly the case that the Magistrate accepted the complainant's evidence as being sufficiently credible and reliable such that she could act upon it. This was founded, to a significant degree, upon her assessment of the complainant's demeanour and how she responded when challenged. Her Honour expressed doubts about the appellant. This included doubts about the intrinsic plausibility of his version, but also about his credibility, including what her Honour appeared to regard as his discreditable resort to a video to attack the complainant.
6. I share the learned Magistrate's doubts about the version given by the appellant. His legal representative's submissions did not seriously challenge the findings her Honour made about his conduct in the bathroom; which ultimately underpinned the determination of an assault. The gist of the submissions are directed mainly to the latter incident in the bedroom. I have considered, but reject, the appellant's argument that a rejection of her account of what occurred in the bedroom automatically generated doubt in her account of what occurred in the bathroom on the basis that it is easier to fabricate a simple event than a complex one. As the Crown submitted, the appellant's account did not factor in details, such as how the mirror fell to the ground. Further, I regard it as farfetched that the complainant's admitted use of the coat hanger had the effect upon the injuries said to result from the battery that her Honour determined he was responsible for. This was before watching Exhibit 5. Having watched Exhibit 5, I am reinforced in my view that she did not strike her face with the coat hanger (on the assumption that this particular incident occurred on or about the date of the offending). There was also nothing to indicate how her asserted banging of her head against the wall would generate the facial injuries the OIC observed and photographed.
7. In the hearing of this appeal, there was animated debate about Exhibit 5. The Crown played Exhibit 5 and also the body worn video footage taken by police, which to a significant degree showed the appellant being woken up in a bedroom at around 1:51am. Thereafter the Crown submitted that notwithstanding that both videos depicted the same bedroom, there were distinct differences in the condition of that bedroom. If that submission was accepted, the Crown argued that it exposed the appellant's lack of credibility, by demonstrating that he had used video footage of an earlier unrelated incident involving a dispute between the couple about money and the complainant's patent distress and act of self-harm to suggest that this was actually the conduct that occurred on or about the date of offending; and that he had done so deliberately to blacken the complainant's credibility or reliability. On this view, the complainant's ambivalence had to be seen in that light.
8. The appellant submitted that there was no evidence that the room the subject of focus in Exhibit 5 and the body worn film was the same. He argued that the complainant's ambivalence on the issue was demonstrable of the lack of her reliability.
9. I do not consider it necessary to resolve the debate as to whether the act of self-harming by the complainant occurred in the same bedroom as the alleged assault on 6 January.
10. First, the learned Magistrate (at T 7) in her reasons had addressed the argument and rejected it, adversely to the appellant. It was not demonstrated how she erred in that regard.
11. Secondly, although Exhibit 5 was admitted, given the joinder of the issue and having seen it and the other body worn evidence, I am entitled to form my own views and draw appropriate inferences as to what weight to give this evidence. In my view, Exhibit 5 should not have been admitted in the Local Court in the first place. No differently to the fresh evidence that the appellant sought to rely upon in his application, this evidence contravened the prohibition in s 7 of the Surveillance Devices Act. To reiterate, the learned Magistrate doubted the veracity of the appellant's evidence that he felt it necessary for the protection of his lawful interests that he be permitted to adduce evidence of the surreptitiously recorded incident (without the complainant's consent).
12. The complainant's absence of consent is significant in this respect. Had she consented, it is likely that she would have been in a position to explain why. Instead, she was, in effect, ambushed by broadcasting its content. That eroded, to her and the Crown's forensic detriment, the protection that the legislation gives to someone who is surreptitiously being recorded contrary to law.
13. Thirdly, and what is equally material, there is no objective evidence to support when it was taken. Although it may be accepted that there was some ambivalence about this from the complainant, that did not ultimately support the appellant's version: it was neutral. At the time it was tendered on behalf of the appellant, he had no particular reason to pinpoint when that particular incident occurred; other than the obvious forensic advantage that might flow if he said it occurred in close proximity to the date of the alleged offending. Further, as pointed out, no attempt was made to demonstrate how the Magistrate, who saw and heard all of the evidence, erred in minimising the weight to be given to it. It is true that the appellant did not need to prove anything, but nevertheless, his defence was significantly centred upon the proposition that the complainant was and is a 'hysterical' person and therefore could not be believed or considered reliable. Exhibit 5 certainly demonstrates the complainant being in a highly distressed state, it indicates that she did indeed self-harm with a coat hanger, but as I said in my reasons for rejecting the application for fresh evidence, there was distinctly lacking contextual evidence to indicate why she was so distraught about what she said about the appellant's use of her money; and how that connected with other matters that occurred on 6 January 2023.
14. Fourthly, and following the second and third points, the narrative of a dispute about money cuts against the grain of the general narrative, about which the appellant gave evidence, that the proximate reason for the dispute on 6 January 2023 was that the complainant embarrassed the appellant in front of his father.
15. For these reasons, I place minimal weight on Exhibit 5. This occasions the forensic consequence that I am unable to accept the submission that by reason of nature or character, the complainant is a hysterical person with a propensity to make false complaints against the appellant and was accordingly unreliable on that account. In addition, I find that the attempts by the appellant to 'tar' the complainant in this way is itself discreditable.
16. Ultimately, her Honour was entitled to put aside the appellant's version. He appeared to be an unreliable witness whose evidence could not be accepted without independent corroboration. It then becomes necessary to consider the evidence at the hearing as a whole, including, but not limited to the complainant's version. This is where the context leading up to the incident, the contemporaneous complaint evidence and the involvement of other neighbours lent substantial force to her version.
17. Part of that context concerned the plausible scenario of the appellant's overreaction to the relatively trivial issue of the use of the complainant's car - a matter overlooked by the appellant through his solicitor's written submissions. That overreaction appeared to arise because of the temporal proximity of the appellant's father, his visibility of his son arguing with his wife, and what the appellant seemed to regard as a loss of face caused by his partner in having the temerity to engage in a dispute in front of his father.
18. There were, as noted, photographs depicting facial injuries consistent with her account of the assault that were taken by the officer in charge, which reflected his personal observations.
19. Insofar as the intimidation offence is concerned, the plausibility of the complainant's evidence is strengthened by the circumstance that the actual asserted threat, and rationale for the asserted threat, was related to, or tied to, the admitted source of marital tension and, apparently, the appellant's festering sense of resentment towards the complainant: the complainant's inability to conceive.
20. I agree with the Crown's submission that the complainant's self-harm, expression or thinking of suicidal ideation, even if I had found it was connected to the offending, should not be treated as conduct that is antithetical to the charges. To the contrary, in my opinion, and certainly in my experience as a Judge, it is regrettably not uncommon that many (although not all) complainants in a fraught domestic environment blame themselves and are driven to emotional extremes in reacting to such environment. It is not a coincidence, as it appears, that in this case, police arrived at a time (about 12:30am or somewhat later in the morning) when they met the complainant in the underground car park and when the appellant was sleeping; and therefore when it was relatively 'safe' for the complainant to give an account to police in the vicinity of her home.
21. In the circumstances, I share the view of the learned Magistrate that the act constituting the common assault and the act relied upon to sustain the charge of intimidation occurred beyond reasonable doubt. I also the share the view of the learned Magistrate that in the circumstances, the assault was not consented to and there was no lawful excuse for the battery. Further, I find, as the learned Magistrate did, that the verbal threat was an express if not implied threat to kill and that by so making it, the appellant actually knew that the likely result of it was to instil fear in the complainant.
22. Both charges were therefore proven beyond reasonable doubt.
23. The appellant's appeal against his convictions is therefore dismissed and both convictions are confirmed.

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: 17 December 2024