Regina v. DMC [2002] NSWCCA 513

Regina v. DMC [2002] NSWCCA 513 - NSWCCA 2002 case summary — Zoe

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FACTUAL BACKGROUND 6 The complainant in each case is the appellant's daughter, born on 16 October 1986. She is one of three children of the appellant and his wife, the other two being an elder son and a younger daughter. 7 In 2000, the family had a three month round-Australia trip which concluded in September of that year. Following that trip, conflict developed within the family, and in about July 2001 the appellant's wife left the family home along with the son. The arrangement was made between the appellant and his wife that the two daughters should live with the appellant during the week and with their mother at weekends. Both the appellant and his wife were in full-time employment. 8 Over the period between about September 2000 and August 2001, the appellant was increasingly concerned about the behaviour of the complainant. Among other perceived problems, the complainant was missing periods and days off school, and telling lies to her parents about her activities. She was disciplined by the appellant by "grounding", but she continued to truant from school. 9 The complainant truanted from school on 6 and 7 August 2001. When she returned home on 7 August 2001, the appellant raised the issue of truanting with her, and hit her a number of times. This incident was the subject of count 1. There was a dispute concerning the implement used: the complainant said it was a hockey stick, the appellant said it was an eggflip. The appellant's defence was that he used no more than appropriate force to discipline the complainant. 10 On 15 October 2001, at night, the complainant was in her bedroom, fully clothed because she was thinking of sneaking out. The appellant found her, hit her with a hair brush and cut her hair short. The hitting with a hair brush was the subject of count 2, and the cutting of the hair the subject of count 3. There was dispute as to the circumstances of these events, and again the substantive defence was that the appellant claimed to have used no more than appropriate force to discipline his child. 11 The complainant then went to live with her aunt, the sister of the appellant's wife, and a person with whom the appellant for a long time had been on very bad terms. On 19 October 2001, an Apprehended Violence Order was taken out prohibiting the appellant from having contact with the complainant. 12 On the morning of 16 November 2001, the appellant went to the aunt's address with his younger daughter, then aged 8, and gained entry to the common area of the block of flats in which the aunt had a flat by posing as an electrician. The younger daughter than pressed the intercom button for the aunt's flat, and spoke to the complainant, telling her she had a birthday present for her. The complainant went to the front door and gave her sister a hug. Then the appellant appeared, grabbed the complainant by the wrist, and told her to come with him and to grab his jumper. They went to the appellant's car, and the appellant drove the complainant and his daughter to various places, including a property which the appellant had purchased and the homes of some friends. In the late afternoon, the appellant spoke to police and made arrangements to bring the complainant to the police station. He did so and was arrested. 13 Count 4 related to the alleged detaining of the complainant on that day, and Count 5 to the incident when the appellant grabbed the complainant by the wrist. The nature of the appellant's defence to counts 4 and 5 was less clear than it might have been if the appellant had been legally represented. However, I think it appears from his evidence and submissions that his substantive defence to count 4 was to the effect that the complainant came with him willingly and that the purpose of his actions was not to gain any advantage for himself but to get the complainant "back on track". His defence to count 5 was in substance to the effect that he did not hold her wrist firmly, and that the complainant was willing to accept this contact and to come with him. 14 The appellant relied on the following grounds of appeal: 1. The verdict in relation to Count 5 was unreasonable and cannot be supported having regard to the evidence on the basis that the Crown case did not disclose an assault.

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COUNT 5 Submissions 16 Mr. Dhanji for the appellant submitted in relation to ground 1 that the Crown relied on an alleged battery, which requires actual intended use of unlawful force to another person without that person's consent: Fagan v. Metropolitan Police Commissioner [1969] 1 QB 439 at 444. Non-hostile acts, such as patting another on the shoulder to attract attention, if committed inoffensively, are ordinary incidents of social intercourse and not battery: Boughey v. The Queen (1986) 161 CLR 10. Mr. Dhanji submitted that there was no evidence on which the jury could be satisfied that this contact was other than an ordinary incident of social intercourse: cf. DPP v. Rogers [1953] 2 All ER 644. 17 In relation to ground 2, Mr. Dhanji referred to directions given to the jury in relation to this assault charge. First, he gave the following instruction as to the elements of assault: The elements of assault are that the accused touched or used force or threatened to touch or use force against the victim. Secondly, the victim did not consent to that action or threatened action. Thirdly, the action or threatened action was intentional or reckless, that is not accidental and, fourthly there was no lawful excuse for the action or threatened action. 18 The trial judge later said this about the Crown case on count 5: In relation to count 5 it is the Crown case that the accused took hold of [S] and therefore touched her and used force to take her away and that there was no lawful excuse for doing so and that that amounts to an assault. 19 Further directions were given subsequently: In relation to count 5, the allegation of assault by taking hold of [S]'s wrist and taking her away. You will recall the accused's evidence that he said "I grabbed her arm and said 'Hold my jumper'. I said 'Don't let go'. I said 'We're going'. She didn't argue with me". The accused agreed that he held her wrist. It is his evidence that he did not hold her firmly. The Crown case is that the manner of taking hold of [S], that is by grabbing her without her consent, did constitute an assault upon her. 20 Mr. Dhanji submitted that the trial judge failed to direct the jury as to the need to be satisfied that the contact was other than an incident of social intercourse; and also failed to direct the jury as to the need to be satisfied that the appellant knew the complainant was not consenting to the physical contact or was reckless as to whether or not she was consenting: see R v. Bonora (1994) 35 NSWLR 74, R v. Kuckailis [2001] NSWCCA 333 and Fitzgerald v. Kennard (1995) 38 NSWLR 184. 21 Mr. Dhanji also submitted that the trial judge did not adequately direct the jury as to the issue of consent, and in particular failed to satisfactorily answer a question by the jury, as follows: Does the AVO which stops [D] from touching [S] constitute her not giving him consent as in "the victim did not consent to that action", point 2 assault in relation to charge 5? 22 The trial judge answered: Whether [S] consented to the action on this occasion should be determined having regard to all the evidence on that issue. 23 Mr. Dhanji submitted that the correct answer to the question was no, that simple answer was never given, and the jury was not warned against an impermissible reasoning process. 24 The Crown Prosecutor submitted that, in the circumstances of this case, there was no real issue that this could be considered a matter occurring in a usual family situation or in the ordinary course of social intercourse; and there was no real issue as to consent or belief as to consent. The appellant's actions were in defiance of an AVO, he gained access to the entrance to the units by a dishonest subterfuge, he came from behind and grabbed the complainant without warning, and ordered her to go with him. His purpose, he said, was that he wanted to convince her that she should not be scared to return home, this in itself acknowledging a belief that she was scared of him at the time. The appellant created a situation where the complainant had no opportunity to consent or otherwise. The Crown Prosecutor submitted that the trial judge's answer to the jury's question was appropriate, and that there was no occasion to give the jury any directions concerning the appellant's belief in relation to consent.

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Decision 25 In my opinion, it was plainly open to the jury to find that the appellant's grabbing of the complainant by the wrist was not an ordinary incident of social intercourse, in the circumstances referred to by the Crown Prosecutor. However, in my opinion it is not correct to say that there was no real issue before the jury as to whether this could be regarded as an ordinary incident of social intercourse, as to whether the physical contact was without consent, and as to whether the appellant believed it was without consent. 26 In my opinion, in an ordinary family situation, for a father to take a 15 year old daughter by the wrist, with a view to guiding her or persuading her to do something may indeed be an ordinary incident of social intercourse. There may also be an understanding between a father and daughter to the effect that the daughter is willing to have that kind of physical contact from the father; and in such a case it is not necessary, to prevent such contact being an assault, that there be consent given in advance directed specifically to each individual occasion of physical contact. Furthermore, even if the daughter is not in fact willing to receive that kind of physical contact, the father may believe she is. 27 Of course, at the time of the incidents in question, the appellant and the complainant were not living together in a family situation. There had been previous incidents of the appellant striking the complainant, the appellant had gone to live with her aunt, an AVO had been obtained, and the appellant had obtained access to the flats by subterfuge and grabbed the complainant by the wrist from behind or at least from the side. Certainly, all these circumstances could have supported a finding beyond reasonable doubt that the relationship between the appellant and the complainant was such that the grabbing of the wrist, even as admitted by the appellant, was not an ordinary incident of social intercourse and not something the complainant was willing to have done to her by the appellant, and that the appellant had no belief that the complainant was willing to have it done. 28 But there was also evidence that the relationship between the appellant and the complainant had not completely broken down, that they interacted with each other cordially later in that day, and that the complainant showed no fear of the appellant; and there was evidence from the appellant to the effect that he was concerned that the complainant was being influenced against him by the aunt, this being a possible explanation of a perceived necessity to gain access to the flats by subterfuge. 29 In my opinion, these considerations do show that there were issues that should have been left to the jury as to whether the grabbing of the wrist, which according to the appellant did not involve his holding the wrist firmly, was an ordinary incident of social intercourse, whether it was something which the daughter was willing to have done to her by her father, and whether the father believed the daughter was willing to receive that kind of physical contact from him. In my opinion, the directions were deficient in failing to draw the jury's attention to the possibility that consent to this kind of moderate physical contact may be implied in a family situation between a father and daughter, and in the failure to draw to the jury's attention that the appellant should not be convicted unless the jury was satisfied beyond reasonable doubt that he had no belief that this kind of contact was consented to by the complainant. The jury may have been left with the impression that the only relevant consent was a consent directed to the specific incident, rather than being a general consent that might be implicit in the relationship. 30 Although the factors referred to by the Crown Prosecutor were powerful considerations supporting a finding on these issues beyond reasonable doubt against the appellant, it is my opinion that the failure to have these matters left to the jury meant that the appellant lost a reasonable chance of acquittal, particularly in the light of the disagreement of the jury on the first three counts and the question concerning consent which the jury did ask. The points were not taken in this form before the trial judge, so that r.4 does apply; but the appellant was self-represented, and there was no possible tactical advantage in not taking these points. In these circumstances, I am satisfied that the failure to put these matters fairly to the jury did involve a miscarriage of justice.

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Submissions 35 Mr. Dhanji submitted, in relation to ground 5, that the charge related only to the detaining of [S], not to leading, taking or enticing her away. Accordingly, there was error by the primary judge in directing the jury to the effect that one element of the charge, in the circumstances of this case, was that the accused "took or led away, detained or enticed away the victim". 36 In relation to grounds 6 and 7, Mr. Dhanji submitted that there was error in that there was no direction to the jury that they needed to be satisfied beyond reasonable doubt that the complainant did not consent, and that the appellant was aware that she was not consenting or at least reckless as to whether she consented or not. He submitted that, just as lack of consent and lack of belief in consent were elements of the charge of battery, so it was also in relation to the charge of kidnapping by detaining. 37 Turning to grounds 8 and 9, Mr. Dhanji submitted that evidence was admitted from a police officer that at the police station the appellant said words to the effect that what he did "may not be legally right". Mr. Dhanji referred to s.108(1) and (2) of the Criminal Procedure Act, which are in the following terms: 108(1) This section applies to an admission: (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless: (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. 38 Here, he submitted, no reasonable excuse was shown. In any event, the words were at best a statement of unqualified opinion, and furthermore could have referred to the breach of the AVO rather than to any assault or kidnapping. The evidence should have been excluded, or at worst, there should have been a direction that it did not amount to an admission of guilt of any of the offences with which the appellant was charged. 39 The Crown Prosecutor submitted that the occasional references to taking, leading away and enticing were immaterial, where the issues raised by the appellant were that he obtained no advantage, that as a father he had a right to possession of the complainant, and that he did not hold her because she could have left if she had wished. He submitted that the circumstances of this case did not raise any reasonable possibility of consent to being taken away or detained. He submitted also that the principal mental element in the offence was the intention to hold for advantage, and the jury would readily have understood that that necessarily involved an intention to hold the complainant irrespective or her wishes. 40 As regards the evidence of the appellant's admission, the Crown Prosecutor submitted that s.108 did not apply; that the evidence had some probative value, if only in that the appellant was suggesting that he did not really understand the AVO; and that in any event, the admission of this material could not be considered as materially affecting the case.

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Decision 41 In so far as the charge was that the appellant "detained" the complainant, that included the requirement that the complainant was not willing or did not consent to be with the appellant and that the appellant did not believe that she was willing or consenting. Though this issue was not clearly expressed by the appellant, I think the appellant's evidence and submissions did raise the issue to the effect that he did no more than instruct the complainant to come: there was evidence from the complainant to the effect that her compliance was unwilling and through fear, but if the matter had been squarely left to the jury they may not have been satisfied of this beyond reasonable doubt. Furthermore, they may not have been satisfied beyond reasonable doubt that the appellant did not believe that the complainant came and remained with him willingly, perhaps out of respect rather than out of fear. 42 Similarly, in relation to intention to hold, I agree with the Crown Prosecutor that this implies an intention to hold the victim irrespective of whether the victim is willing or consents to remain with the accused. Although the element of intention to hold was put to the jury on at least three occasions, it was never squarely put to the jury in terms of their having to be satisfied beyond reasonable doubt that the appellant's intention was to hold the complainant irrespective of whether she was willing to be with him or not. This problem is exacerbated by the fact that the question of intention was twice put to the jury as being whether the appellant intended to gain an advantage, and not in terms of whether the appellant intended to hold the complainant for advantage. 43 The circumstances previously referred to by the Crown Prosecutor, and also the evidence that the appellant made sure the car doors were locked once he had the complainant inside the car, constituted material on which these matters could have been found against the appellant beyond reasonable doubt. However, as before, I consider that the appellant did lose a reasonable chance of acquittal through these matters not being squarely left to the jury in those terms. I would add that the matter of locking the car has less force than it might otherwise have had, because this was not a matter raised with the appellant in cross-examination. 44 Having regard to those views, it is not necessary to rule on other matters in relation to count 5. The trial judge was certainly in error in referring to the alternatives of leading or taking or enticing away, when these were not charged; but in the absence of the other deficiencies to which I have referred, I am doubtful if I would have considered this sufficiently material to justify allowing an appeal. I am inclined to the view that the admission by the appellant which was allowed into evidence was made in the course of official questioning, so that s.108 of the Criminal Procedure Act applied: cf. Donnelly (1977) 96 ACrimR 432 at 437. Furthermore, the admission could have little probative value except possibly in damaging the appellant's case in so far as it depended on a submission that he did not understand the effect of the AVO. However, again I would be inclined to think this matter was not sufficiently material on its own to justify the allowing of an appeal.

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