R v Megson

Representation: Zreika & Associates for the Appellant
Director of Public Prosecutions for the Respondent

File Number(s): 2025/00029381

JUDGMENT

Introduction

1. Christopher Megson (“the appellant”) appeals 3 convictions entered at the Local Court at Singleton. The charges were of intimidation, choking and common assault. The complainant in respect of each charge was Brooke Salvador (“the complainant”). There is no dispute that the appellant and complainant at the time of the events in question were in a domestic relationship and lived together in premises at North Rothbury.

Approach to section 18 appeal

2. The approach to take in respect to an appeal under section 18 of the Crimes (Appeal and Review) Act 2001 has been the subject of numerous Court of Appeal and Court of Criminal Appeal decisions. The approach to take, based on cases such as Charara v R [2006] NSWCCA 244, Dyason v Butterworth [2015] NSWCA 52 and McNab v DPP [2021] NSWCA 186 is as follows:

3. An appeal against conviction is to proceed by way of a rehearing on the basis of evidence given in the original Local Court proceedings: s18(1) Crimes (Appeal and Review) Act 2001 (“CARA”). That evidence may be added to in accordance with section 18 (2) of CARA or as a result of the calling of a witness pursuant to section 19.

4. The appellate judge is to form their own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the hearing: Charara v R [2006] NSWCCA 244 at [18]

5. The Court is entitled to consider the reasons of the magistrate including an assessment of credibility issues because the appellate function could not properly take place without reference to them: Charara v R [2006] at [23]-[24]

6. The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

7. The Court is not obliged in every case to undertake a complete review of the whole evidence and form its own view of the appellant’s guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lunney v DPP [2021] NSWCA 186 at [44].

8. The approach may also be described in the way stated by Justice Gageler in Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD 1 as the “correctness standard” which was his Honour’s way of describing the standard being spoken of in Fox v Percy.

9. With respect that approach is entirely in line with what is said by Bell P (as he then was) at paragraphs [25] through to [28] of McNab which included at [25]:

“the task for a District Court judge in hearing a section 18 appeal is to form his or her own judgment on the facts and to determine on the basis of the evidence that was before the magistrate (supplemented by any further evidence received pursuant to section 18 (2) of the CAR Act or as a result of the calling of a witness pursuant to section 19) whether that evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the court reaching a fresh conclusion as to the appellant’s guilt on the basis of evidence given in the local Court but without the error of law which tainted the result at first instance.”

3. His Honour then went on to observe that a dismissal of a section 18 appeal against conviction will necessarily carry the conclusion that the magistrate did not commit “some legal factual or discretionary error” citing Allesch.

4. McNab is authority for the proposition that an appeal under section 18 does require demonstration of a factual, legal or discretionary error in order to succeed. The judgment of Bell P in reaching that conclusion acknowledges that there is authority that no error is required. Conversely his Honour noted that upholding an appeal will occur because the judge on the rehearing will have concluded the appellant’s guilt was not established beyond reasonable doubt which necessarily involves a conclusion that the magistrate committed some legal, factual or discretionary error.

5. In other words under section 18 the District Court judge will not interfere unless it is shown that the magistrate’s decision is wrong and if that conclusion is reached there will certainly be an error of law, fact or discretion; so that what the District Court judge is doing is determining the correct result based on the material being considered.

The issues

6. The parties have provided the Court with outlines of their submissions. In the submissions of the appellant 5 grounds of appeal are identified. They are as follows:

7. That the choking conviction was not open on the evidence;

8. That self-defence was not negatived beyond reasonable doubt;

9. That the stalk/intimidation conviction was unsafe;

10. That there was procedural unfairness due to restriction of cross-examination;

11. That there was an error in applying the Liberato direction and the burden of proof.

The evidence

7. The evidence consisted of a DVEC interview of the complainant, some further evidence in chief from the complainant, and her cross-examination. There was evidence given by the appellant. There was evidence of the officer in charge but nothing really turns on that. Also in evidence were photographs of both the complainant and the appellant taken the day after these events. The court had the benefit of the transcript of the hearing as well as the actual recording of the DVEC interview (but no transcript of the interview).

8. That the court has the benefit of that recording means that in so far as the evidence consisted of that recording the magistrate had no advantage over this court in considering the evidence. The magistrate plainly does have that advantage in relation to the complainant’s cross examination and the other oral evidence. As noted, the advantage of the magistrate must be recognised.

9. In her evidence in chief the complainant described her version of events as being that the accused was coming inside the house and she observed him doing up his pants. She made what she described as a joking remark to the effect of why are you doing up your pants. The appellant replied by saying words to the effect of “what are you calling me a fucking pedo”. The complainant said the appellant then grabbed her by the throat, threw her to the ground and was kneeing her to the midriff. She said when he grabbed her throat there was force applied that she couldn’t breathe and it took her breath away. The complainant said that at that time the appellant said “I’m going to fucking kill you”. The complainant demonstrated with her hand where the appellant had grabbed her. She said she was standing initially and was taken to the ground whilst he held her throat. She described the kneeing in the ribs as a jab in her sternum area. She says he pulled her hair and she had clumps of hair coming out and that she had combed it out before the interview with the police. She did not recall what hand he used. Whilst on the floor the appellant dragged her by her hair. Her six-year-old daughter came and jumped on the appellant’s back which is when he stopped. She went into the bedroom with her daughter. She was woken at about midnight by the appellant who was concerned the police may be outside; once she could no longer hear his pacing next door, she drove to her ex-mother-in-law’s and then that morning went to the police.

10. In the further examination in chief the complainant was shown photographs taken at the time she attended police the day or morning after the events in question. On the second photograph she identified a red mark on the side of her neck. She said she believed that was from when he had grabbed her around the neck.

11. She was then shown photographs of the appellant a number of scratches. She accepts that she punched the defendant three times to the side of his face. The complainant accepts the marks on the appellant were from her punching him.

12. In cross-examination it was put that she had told the police that the three children lived in the household; on my listening to the evidence in chief she in fact did not say that. In any event even if she had she said that they had been kicked out just days prior to these events.

13. The cross examination focused on the fact that on the complainant's version after the event she remained in her room (which was not the room where the appellant slept) with her daughter and did not contact anyone. She said she did not call the police because she didn’t want to cause more distress to her daughter. She said her daughter was saying she was scared of the police and crying. When put that the daughter was not scared of the appellant the answer was she was scared of him and that she has nightmares even now. The complainant said she wanted to go to the police without her daughter being present. The complainant said she didn’t call anyone because she didn’t want to stress her daughter and she was just trying to cuddle her and distract her from everything.

14. It was put to the complainant that the reason she did not go to the police earlier was because she was too affected by alcohol to be able to drive. She denied that.

15. In cross-examination questions were asked about the ownership of the car taken by the complainant when she left the property during the night.

16. One appeal point is that procedural fairness was denied by this line of questioning not being allowed by the magistrate. A reading of the transcript permits an understanding of why the magistrate interrupted, namely because there was a certain confusion in the questions which did seem irrelevant. Had the relevant question simply been put, namely that the complainant was not scared of the appellant, followed by the proposition that was why she took the keys, it is likely it would have been permitted. The issue of the state of fear or otherwise of the complainant was canvassed otherwise i.e. a similar line of questioning relating to remaining in the house until the time she did.

17. The complainant admitted that she was not unconscious. Her evidence however did not in any way amount to a recanting of what she had said in chief as set out at [10] above. At T17 of the transcript the questions are specifically asking as to the time that she had been thrown to the ground, which is after the initial grabbing by the throat so that the questions as to consciousness in any event relate to a period after the initial throat grabbing.

18. It was put that she was the one that hit him first and she denied that. It was put that the whole time the appellant had his hands behind his back whilst the complainant threw punches at him and she said that’s not true. It was put that he had tried to restrain her and she denied that

19. At T19 the short version of the accused case was put, namely that they had been arguing, that she was intoxicated and she threw punches to his head. She denied everything other than throwing punches.

20. The appellant gave evidence. He said he was trying to undo the drawstring of his board shorts whilst on the phone so he could go to the toilet beside the house. The drawstring became a double knot and he went to the toolbox to get cutters to cut the drawstrings and did so. He was walking back inside trying to do up his drawstring when the complainant said on his version “what are you doing out there with Melani being a creep” to which he replied "what the fuck did you say to me”. She then said, on his version, “oh you know what I get like after what happened to me”. (There was no evidence illuminating what this might be a reference to). The appellant said he was stewing on this and said to her why would you make such a comment and says that she said you know what I’m like and he said “you know what I’ve had it with you”, “I’ve had enough and I want you to get the fuck out of my house”. He said she then came at him. He said she had been drinking heavily. He said he had drunk four beers and she had drunk 4 to 5 beers (the same) and then he went and got a bottle of vodka for her from the bottle shop and saw her drink some of that.

21. He described the kitchen where the incident happened and that she came at him “and I just put my head down because I knew she was going to whack me”. He said she threw her drink down and stormed at him and punched him straight in the face a fair few times. He said after she punched him quite a fair few times he grabbed her in between her breasts from her shirt and her left arm by her wrist and he was going to push her and they have both fallen to the ground. This winded her and she started crying as did the child and he said “you’ve got to get the fuck out of my house. I can’t do this no more”

22. In cross-examination he said that after the complainant said words the effect of “you know what I’m like” he said to her “what’s that got to do with me”. He was not satisfied with her answer and admitted to still being angry.

23. At T 29 is a slightly different version for when asked what she said after he said what would you possess you to say that he says that she said “you know my head you know what I’m like on the piss”; that was not the evidence in chief. He then confirmed that he told her to get the fuck out of his house which is an indication of his state of mind and anger.

24. In cross-examination he said she walked straight up to him – he watched her punch him. At T 29-30 he is being asked how he reacted when on his version of events the complainant came up and started striking him. He said that she walked straight up to him and he knew she was going to hit him and it was put his response, that he did not disagree with, was that he just stood there and put his chin down. He said when asked if he moved his head at all “no. I just stood there”. When asked why he put his chin down he said he wasn’t going to answer that because he had already answered and the prosecutor wasn’t listening.

25. He was asked if he knew a punch was coming, why didn’t he try and move out of the way to which he answered “why?”.

26. He says that she punched him multiple times and grabbed her between her breasts and grabbed her left arm, her wrist and went to push her and they fell to the ground. When asked that he must’ve told her to stop he said he just laughed at her, again something that was not said in evidence in chief.

27. At T34 he said that when the complainant was punching him his hands were behind his back. He said he put his hands behind his back “because I know what she’s doing. Are you listening? Like she’s done this to me a thousand times. I know exactly what’s going to happen”.

28. He said “I put my hands behind my back like that and just put my head like that. I just let her”.

Magistrate’s reasons

29. The magistrate gave what appears to be an ex tempore judgment. There is no real complaint about a lack of appropriate directions rather the appeal grounds assert they were not followed.

30. The magistrate referred to relevant passages of the evidence and accepted the complainant’s evidence.

31. His view was that she did not exaggerate and conceded her involvement in throwing punches.

32. A key factor in the magistrate’s assessment of the appellant was the suggestion he would put his hands behind his back and his head down knowing he was to be punched in the face. Very fairly the magistrate accepted that what the appellant was saying was that he did not physically retaliate, but the magistrate posed the question why the appellant would not at least put his hands up to protect himself. He found this difficult to accept.

33. The magistrate relied on the photographs including that showing a mark on the neck of the complainant as being corroborative. On his version there was no touching of the neck so that on the appellant’s version that mark remains unexplained.

34. The conclusion of the reasons is perhaps what gives some basis for the argument of the appellant, in that the final paragraph reads as if the photographs being more consistent with the complainant and having scrutinised her evidence, he accepts her evidence. Looked at in isolation that may be read as if he simply prefers her evidence. Properly read however 3 paragraphs before that conclusion the magistrate says he finds the evidence of the appellant difficult to accept which is tantamount to saying that he rejects it. Having rejected that evidence he returned to the Crown case and accepted the Crown evidence.

Consideration and conclusions

35. I share the same view as the magistrate of the credibility of the complainant. I had the benefit of seeing the recorded interview. The complainant’s way of answering questions in the interview was straightforward. She did not hesitate in answering the questions. She did not exaggerate her answers and the example given of the kneeing to her torso being like a jab is a good example. She in no way sought to downplay her response of punching the appellant.

36. The criticisms made of her remaining in the property in my view lacked merit. So too is the argument about her confidence in taking the car; she needed to get away and that car was available and she simply took the keys. Similarly the idea that she would go to the police the following day without her young daughter is wholly believable. She has sought refuge within the home away from the appellant and at a time when she had heard the noise from his room cease took that opportunity to leave and go to her ex-mother-in-law who I infer is something of a parent figure to her even now and also or alternatively, I would infer the grandmother of her daughter. It wasn’t clear from the evidence but the likelihood must be that the daughter remained with the grandmother whilst the complainant went to the police. This all strikes me as an entirely likely series of events.

37. The compelling evidence of the complainant given in chief was not in any way diminished by the cross examination.

38. To a large degree the evidence of the appellant supports the Crown case. On his own version of events he is angry once the comment is made as he comes back into the house and was still angry after she had answered his question as to why she would say that. His language and what he said is consistent with someone who is significantly angry; he is in telling his de facto partner to get the fuck out of his house. To be in that state of anger is consistent with someone who would then strike somebody.

39. Fundamentally in reviewing the evidence it has to be said that the version put forward by the appellant is not credible and I reject it. The idea that a man who is on his own version of events angry and telling his de facto partner to fuck off and get out of the house would then in that very next moment stand with his hands behind his back as the person he is angry with approaches him, lowers his head and allows that person to strike him about the head is simply not credible.

40. To be added to that is the observations as to his manner of giving evidence. The appellant was a poor witness. He was argumentative. He gave evidence in cross-examination not given in chief such as the comment attributed to the complainant allegedly saying you know what I’m like on the piss. The evidence in cross-examination about laughing at the complainant was also added. He was decidedly combative with the prosecutor perhaps best demonstrated by when he asked him if he was listening and there are other examples such as at T31 when he said he wasn’t going to answer because he had told them already; at T30 when being challenged about what he was suggesting with his head being down the answer was to ask whether the prosecutor had ever been hit. Not unreasonably the magistrate intervened to say “how about you just listen to the questions and answer the questions”.

41. Dealing with each of the grounds of appeal, in light of those findings I reach the following conclusions.

42. Is the choking offence made out? The submissions read as if there was some suggestion that there needs to be a lack of consciousness to make out this offence. That was not maintained at the hearing. The charge is brought under section 37(1) which is as follows:

(1) A person is guilty of an offence if the person*--*

(a) intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and

(b) is reckless as to rendering the other person unconscious, insensible or incapable of resistance.

43. The point of the appellant is not that the findings could not substantiate the making of the offence but rather that the evidence does not support the findings. The point of the appellant is not that is it is necessary for the complainant to have lost consciousness. What is necessary is for there to be a choke which there was here by the placing of the hand around the neck, which was done intentionally that is that the appellant meant to place his hand there, as I find he did, so as to render the other person incapable of resistance which plainly occurred as she fell to the floor, and that he was reckless as to rendering her so incapable. This point really rests on whether the appellant’s version of events should be rejected or not and once his version of events has been rejected and the complainants accepted the point falls away.

44. Similarly with the ground going to self-defence. Self-defence simply does not arise on the version of events that I find beyond reasonable doubt occurred, namely that the events occurred in the way described by the complainant. The appellant when angry with the complainant attacked her. On these findings there is no evidence capable of supporting a reasonable doubt as to whether the prosecution has excluded self-defense.

45. Even if the approach was taken for the purpose of argument to say that the appellant’s evidence, if accepted, raises the possibility of self-defence, the Crown has proved beyond reasonable doubt on the findings above that the accused did not believe that it was necessary to do what he alleges he did. That is sufficient.

46. Ground three was to suggest the intimidate conviction was unsafe. This challenge was based on the complainant's subsequent conduct of remaining in the home. I have dealt with that above. Frankly the evidence goes the other way. After the confrontation, including a threat to kill, she retreats to her room separate from the appellant; she remained there and later leaves at a time she believes he will not notice and then reports the matter the very next day having taken her child to the child’s grandmother.

47. Had the appellant been successful in showing that there was no basis for the assault and the choking charges then this may have been a matter with more substance. But on the above findings this ground fails.

48. As to the lack of procedural fairness I would accept that the magistrate should have permitted some further questions that were more directly getting to the point. That said I do not think the point is a very strong one and the cross examiner explored other avenues trying to make the same point and which did not lead to the evidence favouring the appellant. Assume for the purpose of argument the question was asked that the reason the complainant took the keys was because she was not afraid of the appellant. Based on the evidence the answer to that question was undoubtedly going to be no. As a matter of common sense the desire to get away from the appellant is motivation enough to take the car keys even if there is no question that it is the appellant’s car. This ground has little weight and is rejected.

49. The final ground was to say that the magistrate had made the error of preferring the complainant’s version and in doing so had not followed the Liberato direction and also did not give sufficient scrutiny to the complainant’s evidence in line with the Murray direction.

50. As explained above I do not think that is a fair reading of the magistrate’s reasons. Furthermore the giving of a Murray direction does not prohibit the acceptance of uncorroborated evidence of the complainant in a case such as this. Furthermore there was corroboration by way of the photographs.

51. The answer to this last ground serves as a summary of the view I take of the matter overall. Even if there had been some error in approach by the magistrate, having reviewed the evidence I am satisfied that the magistrate has come to the correct decision. For the reasons set out above the evidence of the appellant and his version of events should be rejected. Putting it to one side and scrutinising the evidence of the complainant I find her evidence to be compelling and accept that it makes out the elements of each of the offences.

ORDERS

1. The conviction appeal is dismissed.

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