R v Trisic

ELEMENTS OF THE OFFENCES

1. The offence of common assault required proof of the following elements: 1. The appellant assaulted the victim, being that he struck, touched or applied force to the victim; 2. The assault was intentional or reckless; and 3. The assault occurred without the consent of the victim
2. An assault is any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence. An assault can be committed without touching another person.
3. The offence of stalking or intimidating required proof of the following: 1. The appellant stalked or intimidated the victim; 2. The stalking/intimidation was intentional or reckless; 3. The stalking/intimidation occurred without the consent of the victim.
4. Intimidation includes any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

THE CROWN CASE

1. Sasha Trisic is the adult son of the appellant. Gordana was his wife, although was separated at the date of the alleged offending.
2. The Crown case was that the appellant was arguing with his son. After this occurred, the appellant left the kitchen. As he was doing so, Gordana entered the kitchen.
3. The Crown alleged that the appellant said to Gordana "I'm going to slit your throat" (the stalking conduct) and that he approached her and struck at her, hitting her on the right shoulder; and that this caused Gordana to fall back on the wall and bang her head (the 'Gordana assault conduct').
4. The Crown further alleged that following this sequence of events, Sasha interposed himself between the appellant and Gordana and told Gordana to leave the kitchen. It alleged that the appellant struck Sasha on the top of his head with an open hand (the 'Sasha assault conduct').
5. At trial in the Local Court, there was no dispute that the appellant and Sasha had a verbal argument. The Appellant's defence was that none of the contravening conduct occurred.
6. It was undisputed that if the contravening conduct occurred as the Crown alleged that it occurred, all of the offences would have been made out. In particular, in at least one exchange, the appellant's advocate accepted that if the words attributed to the appellant were directed to Gordana, they would satisfy the element of intimidation.

EVIDENCE FOR THE CROWN

1. In the Local Court, the Crown relied upon: 1. evidence from the Officer in Charge (OIC), which was partly relied upon to prove complaint, in the form of body-worn footage (Ex 3); 2. evidence from both of the complainants, Sasha (Ex 4) and Gordana; and 3. an ERISP police interview with the appellant which occurred on the date of the alleged offending, 26 December 2020;

The body worn footage

1. The body worn footage relevantly commenced around 4pm. It is indicated that Gordana Trisic appears breathless and anxiously clutching a water bottle. Sasha Trisic has an anxious look on face. In this footage, taken in close proximity to the alleged offending, both confirm being the subject of assaults. It is true, as the legal representative for the appellant emphasised, that they identified that the sequence of events was the appellant assaulting Sasha first, before Gordana.

Sasha Trisic's evidence

1. The son's evidence in chief comprised the tender of the transcript of a DVEC statement (Exhibit 4 in the Local Court). Sasha's account was that he was in the kitchen. His father had been drinking, having had a few beers. He, Sasha, was leaving the kitchen when Gordana went in, coming from the garage through the hallway. He saw the appellant striking her, with an open hand, on the shoulder. He interposed himself, in an attempt to allow his mother to get away. The appellant struck him, with an open hand, on his head. He did not recall hearing a threat to his mother. She left and called the police.
2. In brief supplementary questioning by the prosecutor, Sasha accepted that he did not actually see his mother being pushed against the wall; however he did see her on the ground in the kitchen and referred to her mother's complaining to him that the appellant had pushed her right shoulder.
3. In cross-examination (given about four and a half months after the incident had occurred), Sasha accepted that he did not see his mother being hit and that his attention was drawn to the incident by hearing a 'bang'.
4. He was challenged as to his recollection of the sequencing between his mother being assaulted and himself being assaulted. It was put to him that he had given inconsistent evidence as to this sequencing. Initially, he said that he was hit (first) after coming between his parents and thereafter, he heard that his mother had been struck (10/5/21, T 46), but after being referred to his police statement, he had said that he had been hit after his mother had been hit (T 15.26). It was notable that the Magistrate intervened to clarify that he was being cross-examined about two different earlier statements.
5. Sasha was challenged as to what he had heard the appellant say to his mother whilst she was in the kitchen. He believed that he was in close proximity to both parents, but could only recall the appellant saying only "Call the police. I'm not a criminal". Later in his cross-examination, whilst giving an account of the appellant chasing his mother around the car, after she was calling the police, he also recalled the appellant calling his mother a "slut" and expressing confidence that the police would not help her.
6. Sasha accepted that he had had a heated argument with the appellant in the kitchen. He disputed that it was his conduct in destroying the appellant's jacket which led to the argument. He insisted, when challenged, that his mother was in the kitchen and inferred that she came into the kitchen as a result of his arguing with the appellant.

Gordana Trisic's evidence

1. Gordana Trisic gave her evidence with the assistance of an interpreter. At certain points of her evidence, however, it appeared that even with such assistance, she had trouble understanding the meaning of some of the questions raised of her.
2. She gave evidence about the appellant's pattern of drinking: estimating a box of beer each day. She thought that at the time of the offending, the appellant was quite drunk. She gave evidence of her being in a garage, smoking. She perceived that Sasha was going to the kitchen to use the coffee machine and decided to go there to get some water. As noted, whilst being interviewed in the body worn recording she was holding a water bottle. When she entered into the kitchen, she said that the appellant asked her "Where the fuck are you going?"
3. She said the appellant got off the chair in the kitchen and pushed her (with his left hand on her right shoulder. Later, under cross-examination, she said that he had hit her; not pushed her. She said that she fell against the wall and hit her back and head. She said that when he 'hit' her, he said (apparently to Sasha) "Fuck your mother". She added that Sasha saw this and he stood between his parents demanding that the appellant not touch Gordana anymore and advising her to wait, or go outside the kitchen.
4. She said that she went to the garage and that the appellant followed her. She said she then ran to the entrance and indicated that she would call the police. She said that the appellant then said "What the fuck are you talking about? Why would you call the police? I am not a criminal".
5. During the course of her evidence in chief, after only generally stating her recall of the appellant using offensive language, the prosecutor sought and obtained leave to revive her memory with reference to an earlier statement to police on the date of the alleged offending. Gordana referred to the appellant saying that he would cut her head with a knife. Gordana explained that this statement had previously been made in the course of the previous six years; which explained why, notwithstanding their being separated but living in the same home, she tried to ensure that she would not appear in the same room together.
6. She also gave an account as to Sasha being struck. This, she said, occurred when Sasha stood between herself and the appellant. The strike comprised the appellant putting his hand on the top of Sasha's head. But the appellant said she went to the garage and when the appellant followed her, she ran away into the street; hearing the appellant swearing at her again. She said Sasha came out as well.
7. Under cross-examination, the appellant confirmed the separation from the appellant and asked about her understanding as to the circumstances about a planned sale of the family home. This was a prelude to the appellant's trial legal representative putting to her that she was motivated by a desire to obtain the 'upper hand' in selling the house and a desire to make it seem that the appellant was 'evil'. She denied both propositions.
8. She said she heard the appellant talking to Sasha, although did not know they were arguing or fighting. She maintained, when challenged that she did not go into the kitchen at all, that she went into the kitchen to get water.
9. There was an exchange between the Magistrate and interpreter as to whether Gordana was saying that the appellant had used the words "Cut the throat", and the interpreter said these were her words; although, as the Magistrate recognised, she had initially said "Cut the head off". Gordana acknowledged that she had corrected herself when recounting the words that he had used.
10. It was suggested that Gordana gave inconsistent evidence as to how long she suffered pain after impacting on the wall.

The ERISP interview with the appellant

1. When he gave evidence, the appellant affirmed the truth of what he told police in his record of interview. When he gave evidence, his attention was specifically drawn to parts of this record of interview when he denied assaulting Gordana and Sasha and also denied threatening to slit Gordana's throat.
2. Notable features of this interview included the appellant's acceptance of a verbal argument with Sasha in the kitchen. From his perspective, the argument arose from Sasha's damaging his leather jacket which he wore when riding his motor cycle. There were other indications in the interview that the appellant appeared to resent his son's general presence in the household (A 109). He accepted, further that he argued with his wife (A 111).
3. He also accepted that he consumed 5 or 6 beers in the afternoon around the time of the incident. Separately, when the officer in charge gave evidence, he stated his opinion that the appellant was moderately intoxicated, as indicated by his slurred speech.

EVIDENCE FOR THE APPELLANT

1. The Accused gave evidence.
2. He said that it was only he and Sasha who were in the kitchen when they had an argument. The argument concerned the state of his motorcycle jacket and holes in carry bags on his motor cycle. He acknowledged that voices had been raised. He sensed that the argument went on for about 5-10 minutes. It ended when Sasha left the kitchen and walked to the garage.
3. The appellant said that he heard Gordana on the phone to police, though he struggled to recall what it was she said other than her saying the word police. He said that he told her that she could call the police since he was not a criminal.
4. Under cross-examination, the appellant accepted that he had been drinking in the afternoon, estimating having consumed four or five 375 (g) of beer. He felt he had a bit of alcohol, though did not think he was drunk.
5. He maintained, under challenge, that his wife was in the garage and did not walk into the kitchen. It followed that he denied saying things that the prosecutor had put to him as to what he had said to Gordana, such as "Fuck you mother, you slut" and "I'm going to cut your throat" and denied hitting her in her right shoulder, causing her to fall back on the wall and hit her head
6. He maintained, under challenge, that Sasha did not come between himself and Gordana and that the former told the latter to get away; that he then hit Sasha on the head using an open hand.
7. He denied following Gordana out to the driveway and that it was there that she said she would call the police. He said that she was already on the phone when he saw her. He denied swearing at all that day.

Prior good character

1. On 30 November 2021, this Court granted leave to the appellant to adduce fresh evidence, being evidence of good character. The appellant relies upon the affidavit from Anna Tang, an employee of the law firm acting for him, which attached his criminal history. The Crown accepts that the circumstance that he had good character in that he had no prior convictions.

THE MAGISTRATE'S REASONING

1. The Magistrate delivered ex tempore reasons. His Honour directed himself on the onus and standard of proof in relation to each and every element of the offences and the presumption of innocence to the appellant until that onus was discharged. Although the Magistrate did not in terms say as much, the prosecution bore the onus of proving beyond reasonable doubt the essential elements of the offences, not every disputed fact arising from the evidence.
2. After summarising the Crown case, the learned Magistrate identified as the critical issues whether the appellant assaulted Sasha and Gordana in the way the Crown alleged and whether or not he threatened Gordana in the way that the Crown alleged. Having regard to the appellant's defence as simply one that the alleged incidents did not occur, the Magistrate recognised that he would have to be satisfied that the respective assaults and threat happened in the way that the complainants (respectively) said that they did.
3. The Magistrate stated that he had regard to all of the evidence before him (which, through no fault of the Magistrate, did not include the evidence of the appellant's good character) and stated that even if not all was referred to, he had considered all of that evidence.
4. The Magistrate then summarised the submissions he received.
5. As to the prosecutor's case, the Magistrate observed that the evidence of Sasha was largely consistent with the evidence in the DVEC and the body-worn footage and complaints to police, soon after the alleged offending had occurred. The Magistrate noted the Prosecutor's acknowledgement that there was an inconsistency in Sasha's evidence as to the sequence for when he had said that he had been struck by the appellant. The prosecutor had said that it was unsurprising that Sasha might 'blurt' out to police when they first arrived that he had been struck whereas, on reflection, he might state in this DVEC, and adhere in Court to what he had said in his DVEC, that he was struck after Gordana had been struck; after he had interposed himself.
6. The Magistrate recorded the prosecutor's submission that although leave had been granted to the prosecutor to revive Gordana's memory as to the threat the appellant made to her, it ultimately proved unnecessary. She did not need to resort to the earlier police statement.
7. The Magistrate noted the prosecutor's submission that although the accused's evidence was consistent with what he had said in his ERISP, that account was implausible. If all that had occurred was a minor argument between the appellant and Sasha, there would have been no occasion for Gordana to contact police.
8. As to the accused's case, the Magistrate alluded to the accused's legal representative's submission about the promptness of his denials of the alleged wrongdoing; the inconsistency in Sasha's account as to when he was struck; that it took Gordana to look at her prior statement to revive her memory as to content of the threat she alleged had been made by the appellant. There was also, it was submitted on the appellant's behalf, inconsistency as to how she was hit, or pushed by the appellant. He submitted that, in further support of his submission as to his credibility, the appellant conceded that he had been drinking and having had an argument with Sasha and that, combined with the promptness of his denials, his evidence was credible.
9. The Magistrate then set out his findings. He described Sasha as a 'somewhat unsophisticated' witness, but regarded him as honest. The Magistrate did not regard Sasha as giving inconsistent accounts, between informing police that Gordana had been struck, and his evidence that he had assumed that she had been struck, since he had not been specifically asked whether he saw her being struck. As to the other suggested inconsistency, relating to the sequence as to when he was first hit, he regarded Sasha as indicating that he had been struck first as being in the 'heat of the moment'. The Magistrate observed it was unsurprising that Sasha, and Gordana, would be 'agitated'
10. The Magistrate acknowledged some discrepancies in Gordana's accounts as to where, on her body, she was struck, but considered that, until she gave evidence, she had not been specifically asked, so there was no true inconsistency. Further, the Magistrate effectively discounted - in Gordana's favour - what she had said to police as it was done without an interpreter. The Magistrate regarded Gordana's difficulty with the English language as explaining a discrepancy.
11. But the Magistrate found that there was a consistency in her evidence: it had always been her position that she sustained a strike to the shoulder and there had been threats. Rejecting a submission advanced on the appellant's behalf, she did not need to look at her earlier police statement to help her recall the content of the threat, being to 'slit her throat'.
12. The Magistrate noted some further discrepancy about whether or not the words 'slitting her throat' were actually used, but attributed that to imperfect translation by the interpreter and was satisfied that Gordana had settled on a position where the threat was the slitting of her throat. He rejected the proposition that Gordana had fabricated the threat.
13. The Magistrate was influenced that Gordana gave a contemporaneous statement to police and did not ultimately need to be taken to it. He had no difficulty accepting her as a witness of truth.
14. The Magistrate referred to the appellant's election to give evidence voluntarily and acknowledged the consistency of his denials.
15. But the Magistrate was satisfied that his guilt was proved to the requisite standard by the content of the body-worn video and DVEC (of Sasha) taken on the day in question and found that the evidence of the complainants was cogent, truthful and reliable.

THE APPELLANT'S CHALLENGES TO HIS CONVICTIONS

1. As indicated, it is convenient, for the purposes of his appeal in this Court, to consider the grounds identified in the appellant's submissions. They are, speaking generally:

In relation to the charges concerning Gordana 1. An absence of reliability in Gordana's account, given suggested inconsistencies in the account she gave to police in a witness statement and her evidence in the Local Court and a need to revive her memory through the use of the procedure in s 32 of the Evidence Act; 2. inconsistencies between Sasha's account of the assault on Gordana and Gordana's account of the assault upon her; 3. absence of evidence to prove the words said to found the charge of intimidation;

In relation to the charge concerning Sasha 1. Inconsistencies between Sasha's accounts to the police generating doubts about his credibility or reliability;

In relation to all charges 1. There was a possibility of contamination in the accounts of the two complainants, given that Gordana and Sasha travelled to Granville Police station in the same vehicle; 2. the omission to consider the appellant's good character (since rectified through the grant of leave to adduce fresh evidence); 3. failure to consider that no damage was done to the appellant's credibility; 4. failure to apply a Liberato direction and find that the Crown had not proven the cases against the appellant beyond reasonable doubt.

Challenge to Gordana's reliability and credibility

1. Dealing with Gordana's evidence, the appellant cited the appellant's initial formulation of the content of the threat to her as involving her having her head cut off, until she recalled that the threat was to slit her throat after application had been made to revive her memory.
2. It was submitted that there was inconsistency in her account of seeing Sasha being hit but being unable to recall what the appellant was doing with his hands, before she ran away.
3. These matters, along with the possibility of contamination, led to doubts about her reliability.
4. As to the aspect of contamination, whilst there may have been a theoretical possibility of the two complainants talking about the matter, the possibility was not actually explored with each of them in cross-examination of either complainant. Further, given that there were differences in the complainant's accounts, this rather suggests that the proposition of contamination was theoretical, rather than real.
5. As to the discrepancies or inconsistencies in evidence, as a general point, the prosecution did not have to prove that every word spoken by the complainants was true and correct before the Magistrate could find the accused guilty. That was a matter of common sense. All witnesses have different capacities to observe, to remember details, and to recount what they recall of an event witnessed or in which they participated. There were bound to be some differences if a witness' memory in court is compared with what might have been attributed to them on earlier occasions in police witness statements, particularly upon the less significant aspects which might not be retained as well as the core or essential features of an event. That is particularly the case where the event itself, on the complainants' respective accounts of what occurred, was traumatic. Compounding the difficulty in this case is where, at least in the case of Gordana, there were apparent language difficulties. The Magistrate was entitled to express misgivings at the initial body worn interview, that Gordana fully understood what was being asked of her, in the traumatic circumstances that she perceived them to be.
6. It was notable in that body worn interview that Sasha did most of the talking. Sasha appeared to be much more fluent in the spoken English word than Gordana. I consider that what was truly material when evaluating the content of the body worn interview, was both complainants' complaints of being assaulted, rather than the precise sequencing in which that had occurred.
7. I do not regard it as a matter fundamentally undermining Gordana's reliability, let alone credibility, that her initial evidence was that of the appellant using the words 'cutting her head off', as distinct from 'slitting her throat'. The threatened actions are not overtly dissimilar in effect. As the Magistrate found, ultimately, Gordana did not need to actually see what she had said in her police statement to revive her memory. Further, although there is a distinction between both potential versions, it was open to the Magistrate to think that any discrepancy did not undermine the cogency of her evidence.
8. Nor do I regard any lack of specificity in Gordana's account as how the appellant applied his hand to Sasha's head as undermining her reliability. It was open to the Magistrate to view Gordana's desire to run away (which, according to Sasha, he had advised her to do) as a natural reaction of a mother in a distressed state.
9. The matters which the appellant relies upon when challenging Gordana's evidence are not persuasive against the Magistrate's acceptance of her as being a reliable and honest witness.
10. The appellant, in particular, has not referred to incontrovertible or glaringly improbable facts which would falsify the reliability of Gordana's evidence.

Inconsistencies between Sasha's evidence and Gordana's evidence

1. The appellant's submission regarding inconsistencies between the evidence of Sasha and Gordana undercuts, as I have indicated, the general submission regarding the possibility of contamination through both witnesses discussing their evidence.
2. The appellant raised certain discrepancies between Sasha's evidence to police in the DVEC and his evidence in Court as to whether Gordana fell to the floor directly as a result of a push by the appellant or indirectly, as a result of a collision with the wall. To the extent that there may be have been a discrepancy between what he told police on the date of the offending and his evidence in Court over four months later, in my view, the distinction is immaterial. The context was Sasha giving a consistent narrative that the mistreatment of Gordana had occurred as he was intending to leave the kitchen but after hearing the "boom", he turned and saw his mother being manhandled by the appellant; a situation which, it might be expected, would occasion distress in him.

Inconsistency in Sasha's evidence regarding the sequence of events

1. The appellant reprises his argument about an inconsistency in Sasha's account as to the sequence in which he was struck by the appellant, in telling police initially that he had been struck first, before stating, at the police station, that he had been struck after trying to interpose himself between his parents.
2. The Magistrate addressed this discrepancy and reasoned that it was not unexpected in the circumstance. This reasoning was affected by a (positive) credit-based view of Sasha as a witness, as a whole, and it is not shown that this reasoning was contrary to other evidence.

Sasha's evidence on the content of the intimidatory words

1. The appellant points to the circumstance that Sasha did not corroborate Gordana's evidence that the appellant said that he was going to cut her throat.
2. This point, if accepted, is another instance of contrary accounts between both complainants which is at odds with the general submission of contamination.
3. Be that as it may, a failure to give evidence of hearing something that another witness heard would not, by itself, generate a reasonable doubt. So much would depend upon the context, including the likelihood that Sasha would be in a position to hear what was said, and when it was said by the appellant and also his state of mind at the time. It was not the case that the police put to Sasha that his mother had complained about being sworn at or threatened and Sasha disputing that this was the case. Further, insofar as the Magistrate was satisfied that Gordana was a witness of credit who was reliable, it was not an indispensable fact required to substantiate the charge that Sasha did 'corroborate' his mother's account of what the appellant said.

Good character

1. As the appellant acknowledges, his good character was not put before the Magistrate. It was no error for the Magistrate to fail to have regard to it.
2. I do not understand the content of paragraph 26 of the appellant's written submissions, although I accept that the circumstance that he was of prior good character was relevant to the likelihood of whether he engaged in the offending conduct more generally and could also be taken into account when considering the cogency of his accounts, be they in the ERISP interview or when he gave evidence in particular. Nevertheless, his good character did not provide him with a defence.
3. The uncontradicted evidence was that the appellant and Gordana were 'separated', but, perhaps unusually, not in the physical sense of where they lived. The appellant had given unchallenged evidence as to her desire not to be in the same room as the appellant within the premises: a tell-tale sign that relations between both of them were strained. Further, as I indicated, there were also indications in the appellant's ERISP that his relations with Sasha were somewhat tense. The dynamics of these relationships are just as relevant to the likelihood of his committing the offending as evidence of his not having committed any prior offences and in my view it is an assessment of those dynamics which is more probative than the absence of prior convictions.

The Appellant's election to give evidence and accounts of what occurred

1. It is submitted that in a context where he was not obliged to give evidence, but chose to do so, where the prosecution bore the ultimate onus of proof, and where no 'damage' was done to the appellant's account denying what had occurred, he should have been accepted as a credible witness. The unstated premise, it appears is that, this being so, the Crown necessarily could not have discharged its onus. Indeed, this premise leads to the appellant's final point below regarding application of Liberato.
2. As the learned Magistrate recognised, however, merely because an accused person voluntarily agrees to give an interview or elects to give evidence at trial does not, in some way, mean that some sort of weighted preference should be given in favour of the accused's evidence. The Magistrate was not bound to accept his evidence, but was entitled to give such weight to it as he thought it deserved. It is true that part of that evaluation might include the relevance of past good character but, as suggested, in the circumstances that occurred, that may have had lesser force than the Magistrate's assessment of the dynamics of the relations between the appellant, Sasha and Gordana.
3. As to the lack of 'damage' in the cross-examination of the appellant, it may fairly be said that much of it comprised the prosecutor fulfilling his obligations to comply with the rule in Browne v Dunn, by putting the versions of the complainants to him for his comment; and, further, that there was no vigorous challenge to the responses.
4. In fairness to the prosecutor at trial, however, it may be said that some of the evidence of the appellant, adduced in cross-examination, was implausible. As was noted in the prosecutor's closing submissions, if all that Gordana's involvement in the incidents occurred was her presence in the garage, it is implausible that she would want to ring police. That is especially so where, according to the appellant, there had not even been swearing by him at all. That was inherently implausible. In his ERISP, he had at least agreed that he had argued with Sasha in the kitchen and he generally referred to a pattern, insofar as it concerned Gordana, that "we just argue.."
5. Contrary to the solicitor for the appellant's position, it was not a matter of the Magistrate using the fact of the complaints in the body worn camera interview to reason as to why they would lie. Like other complaint evidence, even if there be discrepancy in the particulars of a complaint and what is later said in court, it is the circumstance that by making complaints, Gordana and Sasha acted as one might have expected that they would likely have acted if they had, as they alleged, been the victims of assaults. The complaints are supportive of the Crown case.
6. Further, the Magistrate had evidence, from both Gordana and the Officer in Charge regarding the appellant's state of intoxication. There were differences in emphasis, but it is open to find that whatever be the position as to whether he was giving evidence honestly, the reliability of his recollections was likely to have been affected by that intoxication. His advocate on this appeal did not suggest that such inference was not open to the Magistrate.
7. Further, the fact that the appellant was, in my view, intoxicated to a degree means that his prior good character has less weight in evaluating the likelihood of his offending than if he was not. This flows from the circumstance that the intoxication would reduce his capacity to control his actions when in an emotional state which, according to the appellant, he was in. Prior good character was not likely to assist him in those circumstances.
8. Further, the fact that a witness may state certain things multiple times does not, by that mere circumstance alone, render what is said any more the reliable through the force of repetition.

Liberato

1. As the High Court has observed (in De Silva v The Queen (2019) 268 CLR 57), a Liberato [1] direction is a species, or perhaps a derivative consequence or manifestation of the onus and standard of proof applicable to the prosecution on all the elements of the offences; but more specifically in the context where there is a conflict in evidence between a complainant and an accused. The essential point was that where there was nothing else in the evidence to resolve such conflict, mere preference for a Crown witness over the accused's evidence is not enough.
2. It is plainly the case that the Magistrate was alive to the fact that the Crown bore this onus, from beginning to end. It is also plainly the case that the Magistrate considered all the evidence (as he stated that he had), without simply resorting to a demeanour-based preference for a Crown witness over the accused. His Honour emphasised, for example, the contemporaneous complaints in the body-worn camera footing. The Magistrate considered the appellant's version of events and submissions made on the appellant's behalf.
3. This was not simply a case of a 'one on one', but notwithstanding some differences between the complainants, 'two on one'. The evidence of all witnesses was evaluated and the Magistrate preferred the evidence of those complainants over that of the appellant. I do not see any substance for a submission that the Magistrate misused his natural advantages.
4. Contrary to what is arguably implicit in the appellant's submission, cases of this kind do not boil down simply to a finding of which witness is preferred (although in this case there were two witnesses against one) on the basis of demeanour. As Basten and McCallum JJA observed in McNab at [65], "circumstances may render one person's evidence inherently plausible, or the other's inherently implausible".
5. Having read the evidence, and taken into account the natural advantage of the Magistrate in his credibility findings and the limitations that a Judge conducting a rehearing essentially on the transcript, I am satisfied that the offending conduct occurred. Given that his defence was that the conduct did not occur, there was no other, more technical reason why the Court should not find that the elements of the offences were proven beyond reasonable doubt. The appellant is therefore guilty. Consequent and indeed implicit in that finding is that I do not discern any error which would enliven this Court's jurisdiction to set aside the conviction.
6. The appellant's conviction appeal is dismissed.

Endnote

1. Liberato v The Queen (1985) 159 CLR 507 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 2021