HIS HONOUR: This is an appeal against certain decisions made by Magistrate Thompson sitting in the Downing Centre Local Court on 19 July 2019.
The appellant was charged that between 11.30pm and 11.45pm on 25 January 2019 at Pyrmont he did assault Camillia Bejjih. That is an offence contrary to s 61 of the Crimes Act 1900. There is no suggestion that any injury was occasioned to the complainant. At the time the complainant and the appellant were husband and wife. The circumstances of the event arose in the course of the breaking up of the relationship of the appellant and the complainant. At the time of the offence, the appellant and the complainant had been living together for between five and six years, which was further clarified by the complainant to be five and a half years. They had been married at the time for two and a half years. They had a daughter, who was two years old.
According to the complainant, the relationship between the couple commenced to break down in early October 2018 when she returned from France after a two week visit to that country to see her family. The complainant referred to herself as being from France and she also has given evidence that she had a French passport and a Moroccan passport. There is no suggestion that the appellant speaks either French or Arabic and they appear to have communicated in English. The complainant's English is good in a popular or vernacular way, although it is not a paradigm of the Queen's English. There is reference by the learned magistrate to the appellant's having certain linguistic problems. At p 9, commencing at line 24 of her decision given on 19 July 2019, the learned magistrate said this:
"The complainant's evidence is to be viewed with the understanding that English is not her first language. She gave evidence, 'Sorry, I am French so I don't get everything straight away'. It was apparent from her evidence that she struggled on occasion to find the English word for what she was saying and to comprehend the question being asked. It was submitted the complainant's evidence changed significantly in relation to being dragged from the bed."
As a Francophone, I could not detect any hint of French in the complainant's oral evidence. I say that because I have listened to a DVEC which was played as her evidence-in-chief. It appears to me that it is likely that her first language is Arabic. However, her inability in English was minor and I believe, as far as I can ascertain, that she understood everything that was put to her, albeit she may have had difficulty at times expressing herself or providing the correct English idiom for what she wished to say.
Her Honour found the offence alleged proved beyond reasonable doubt. However, her Honour declined to record a conviction, believing it inappropriate to do so. She released the offender on his entering a Conditional Release Order to be of good behaviour for a period of two years from 19 July 2019. Her Honour also made an apprehended violence order, in the standard form, for a period of two years commencing on 19 July 2019.
The notice of appeal contains these grounds:
"I am appealing the above conviction/order because I am not guilty.
I am appealing because I contest the apprehended violence order made in these proceedings."
Her Honour did not record a conviction. However, s 10(5) of the Crimes (Sentencing Procedure) Act 1999 provides:
"A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence."
The current proceedings have been a cause of a substantial piece of litigation. The proceedings commenced before Magistrate Thompson in the Downing Centre Local Court on Friday, 26 April 2019. Evidence was adduced from the officer-in-charge, Constable Simon Mackay, and from the complainant. The proceedings were then adjourned until 21 June 2019. On that day there was further cross-examination of the officer-in-charge, and the appellant gave evidence, his mother gave evidence, and finally evidence was adduced from Constable Alison Donnelly. However, neither the appellant's mother nor Constable Donnelly were cross-examined. The learned magistrate then heard addresses and stood the matter over part heard to Friday 19 July 2019 when she gave judgment.
Her judgment is thorough. She reviewed the evidence given by the complainant, the evidence given by the appellant and the evidence given by the appellant's mother. Commencing on p 9, her Honour directed herself in law. Her Honour's directions to herself were impeccable. Her Honour had difficulty accepting the evidence of the appellant. However, it is clear that she did not unequivocally adopt the evidence given by the complainant. It has been submitted to me that the complainant's evidence is riddled with inconsistencies and is unreliable. The same submission could be made about the evidence of the appellant. Her Honour dealt with the matter by considering in detail a recording made of the relevant interaction by the complainant on a mobile phone which she was using. The recording is only an audio recording.
Before I turn to it, a few things should be noted. As I said, the marriage of the appellant and the complainant was failing. The event in question happened on the evening of Friday, 25 January, 2019. Prior to being adroitly interviewed by two police officers on 26 January 2019, commencing at 8.32pm, the appellant was shown the DVEC made by the appellant, which was recorded at a police station - I understand it to be Waverley police station - commencing at 11.38am on 26 January 2019. That DVEC concluded at 12.21pm on that day and is, accordingly, 43 minutes long. The couple and their daughter were living in a flat in Pyrmont.
Reading from the transcript of the ERISP made by the appellant which was exhibit 3 in the Local Court, this is the appellant's version of what happened that day:
"When I got home I went to the dining area to work on my laptop to do some stuff for school. I thought Camillia was sleeping, but she wasn't and she came out and sat at the dining table with me and said, 'Look, we need to discuss a few things in terms of custody for the divorce and whatnot, you know.' And then we sort of were trying to discuss, but we sort of weren't really getting anywhere with it...and we started arguing. She was saying stuff like 'I'm going to get 100% custody because of this. I'm going to say that you abused me. I have proof on um...text messages and whatnot' and stuff like that, and I was sort of going back at her, it was like an argument you know. It got a little bit heated and then she sort of like stood up and walked off and then I went outside and I called my parents and told them what went on. Then I went back inside. Went back to my laptop, sat down and started doing my work and stuff for my lesson plans. And then it was just the same shit. It always happens...she hears me like come in like when I'm working and she just like instigates stuff. She came back down, sat down and did the same thing. We had an argument and whilst I was sitting, she got up and stood up over me and sort of shoved me while I was sitting. She just loses control...Like it's been happening for a while. So that happened and I was just sitting there copping it,...and we're obviously both very angry at each other. And I said, 'Look, I think it's a good idea you go to bed, yeah?'. So then a little bit later I went into the bedroom like I always do to get my ear plugs out of the bedside table and she sort of looked at me and rolled her eyes and gave me a grin and then um we just got up in an argument about custody or whatever and then she jumped out of her bed and she often does this, she says, 'Leave me alone, leave me alone' and stuff. When she is the perpetrator. She is the one doing it. She jumped out of bed and like slapping me, 'Leave me alone'. Slapping, 'Leave me alone'. You know slapping me and I go and I think I go, 'I'll call the cops' and she said, 'I'll call the cops' and when she was slapping me, this is in my bedroom door and this is the hallway door so she jumped out of bed, 'Leave me alone, leave me alone, leave me alone.' And sort of like started slapping me with her right hand but just like that."
I need not quote further from the ERISP as it ought be clear that there was interaction between the appellant and the complainant that evening, culminating in the interaction after the appellant entered the bedroom to obtain his ear plugs.
The complainant's version of events is quite different. The complainant recorded the interaction between her and the appellant in the bedroom when the appellant went to get his ear plugs without his knowledge or consent. Her Honour observed that the appellant did so by "stealth". Nevertheless, no objection was made by Ms Burke, the solicitor appearing for the appellant, to the playing of the recording being given in evidence. Thankfully, her Honour spent time - and it would have been a substantial period of time - seeking to record what can be heard on the complainant's mobile phone as it was played in the DVEC.
The recording lasted one minute and 48 seconds. What the Court is concerned with is the interaction between the complainant and the appellant during that one minute and 48 seconds. Her Honour set out the conversation between pp 3 and 6 of her reasons. I shall set it out a little differently, but the words are hers.
"A: You're welcome to take her out any time you want.
C: Don't talk to me anymore.
A: [indecipherable]
C: You're gunna, you're gunna, you're gunna win custody, yeah, of course.
A: You're in Australia, so.
C: Yeah, and in Australia you can't separate a mother from their daughter, from their, from their daughter.
A: Yes, you can. Money talks.
C: Money talks and money talks really? Proof talks too.
A: Proof talks?
C: Yeah.
A: What proof have you got? [indecipherable]
C: Money talks.
A: Proof talks? What proof have you got?
C: Money talks listen leave me alone.
A: What proof have you got?
C: Leave me alone.
A: What proof have you got?
C: Leave me alone. Stop putting (sic).
A: What proof have you got?
C: Leave me alone.
C: Stop putting. (sic).
A: What proof have you got? What proof have you got?
[scuffling noises]
C: Stop stop don't touch me. Don't touch me. Don't fucking touch me. Don't fucking touch me ever.
A: See you just hit me.
C: Don't fucking touch me ever.
A: I'm calling the police.
C: Don't touch me ever.
A: I'm calling the police. I want to get my phone back.
C: Don't touch me ever.
A: You hit me.
C: You don't - oh, you're waking up your daughter. Don't touch me ever again.
A: Give me my phone.
C: Don't touch me ever again.
A: Give me my phone.
C: Don't touch me ever again.
A: Give me my phone.
C: Don't touch me ever again. Call the cops, calls the cops now.
A: You don't know what - stay...[indecipherable].
C: Call the cops.
A: [indecipherable]
C: Call the cops.
A: Listen.
C: You just woke up my baby.
A: Listen.
C: Leave me alone, I'm going to scream.
A: No, don't scream one thing.
C: Leave me alone.
A: I want to say one thing, I apologise for grabbing the phone.
C: You grabbed the phone and you hurt me. Leave me alone.
A: I didn't hurt you.
C: You just hurt me.
A: I didn't hurt you.
C: You grabbed me, you tried to steal the phone from me. It's my phone, go away.
A: I paid for it.
C: Go away.
A: Right, listen.
C: Go away.
A: I apologise for that, I apologise.
C: Apologise, keep on apologising it's really good.
A: Proof talks, hah. Proof talks, hah.
C: Leave me alone, leave me alone.
A: Prove what, sweetheart?
C: Bye."
I have corrected two words, but they enhance the meaning. Where I have inserted in square brackets the matter "scuffling noises", I am inserting what I heard when I listened to the DVEC. That appears to be agreed upon by the parties.
Another clue to what happened is, in my view, contained in the oral evidence of the accused. On p 7 of the transcript of 21 June 2019, during his evidence-in-chief, the appellant gave evidence of earlier occurrences on the evening of 25 January 2019 and then referred to going into the bedroom to recover his ear plugs from the bedside chest of drawers, and he then referred to starting to engage in a conversation with his then wife. On p 8 the evidence continues thus:
"...so I walked into my bedroom and I got ear plugs out of the drawer and started talking to Camillia and put the ear plugs in my pocket, but she was sort of sitting on the bed like that and then the wardrobe, sorry, not the wardrobe, the bedside table thing is there and then I was getting the stuff out of the bedside table so when we were talking we were very close you know yeah, and then as soon as I took a step back she got out of bed you know and I remember that we when we were arguing I said something like 'money talks' and it really upset her and she said, 'Money talks, money talks' and then put her face into my face, and then with her right hand she said, 'Proof talks' and went like that and gestured with her hips towards me like that.
Q. What did that mean to you?
A. At the time I didn't think it meant anything to be honest with you yeah, I hadn't done anything wrong so I don't understand why she would say 'proof talks' and put her phone towards me, I didn't really know what she was talking about.
Q. What happened then?
A. Then I reached for her phone, I reached across my body with my right hand and she slapped my right hand down and said, 'leave me alone' with her left hand she then sort of like went to push me but she like, went to push and grabbed my shirt and said, 'leave me alone', she then with her left hand put her hand back and said 'don't touch me', and when she said 'touch' she hit me, you can hear it in the, you can year it in the audio her voice, she said 'don't touch me', you can hear it in the audio."
The important point to take from that is this: the appellant was saying that the complainant showed her phone to him in some measure to indicate she had some form of 'proof' that might be used in a matrimonial dispute concerning the custody of their daughter. The complainant's evidence is that she had her mobile phone with her, that she was wearing a garment popularly known as a hoodie which contained on its front a muff, being a pocket in which the hands could be placed in order to keep them warm. In other words, it was not really a pocket, but really a tunnel of tissue designed to take the hands to keep them warm. In that, she had her telephone switched on to record the interaction between herself and the appellant.
Doing the best I can on the evidence, it appears to me that, prior to the scuffling noises, the appellant reached for the phone which had been shown to him and there was a struggle between the two to take hold of the mobile phone which the complainant had activated. After, in what I quote above, where I inserted the words "[scuffling noises]", the tone and tenor of what the complainant was saying changed and her utterances became somewhat shrill. Equally, it did not take long for the appellant to allege that she had hit him. I believe it likely that during that period when "scuffling noises" can be heard on the recording made by the mobile phone, that there was a mutual grabbing for the telephone that was in the possession of the complainant, and the complainant managed to maintain possession of it. I believe it likely that the complainant did slap the appellant on his hand, as he protested immediately after she referred to his not touching her. However, it appears to me to be beyond any doubt that during the scuffle for the phone there would have been some contact between the hand of the appellant and the hand of the complainant when each was trying to either retain or obtain hold of the telephone. This would be an assault at the very bottom of the range of what an assault is.
An assault can be constituted by the merest touching of the person by another deliberately. It is merely the touching which needs to be deliberate; there does not need to be any intention to actually hurt or injure. The touching must be without the consent of the person touched and there must be no lawful excuse for the touching. I accept that the complainant did not give her consent to the appellant's touching her. However, the question arises whether he had any lawful excuse to do so.
Raised immediately by the appellant was his protesting that he would call the police as he wished to recover his telephone. As is obvious from what I have quoted from the recording made by the complainant on her mobile phone, the appellant was maintaining that it was not her phone, but his phone, and that the appellant was paying for the telephone.
I accept that the apologies at the end of what has been quoted were an attempt by the appellant to defuse the hostility that had arisen between the couple. However, during that apology, he did admit to grabbing the phone and it appears to be highly likely, indeed proved beyond reasonable doubt, that he is likely to have touched the complainant's person in some fashion.
The appellant raises a defence of a claim of right. The relevant legal principles can be found in R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310. The principal judgment was given by Wood CJ at CL with whom Heydon JA (as he then was) and Sully J concurred. At [24] his Honour said this:
A review of the authorities shows that:
a) the claim of right must be one that involves a belief as to the right to property or money in the hands of another: Langham (1984) 36 SASR 48;
b) the claim must be genuinely, ie honestly held, it not being to the point whether it was well founded in fact or law or not: Nundah (1916) 16 SR (NSW) 482, Bernhard (1938) 2 QB 264; Lopatta (1983) 35 SASR 101 at 107; Walden v Hensler ; and Langham at 52-53.
c) while the belief does not have to be reasonable: Nundah at 485-490; Langham at 49; and Kastratovic (1985) 19 A Crim R 28, a colourable pretence is insufficient: Dillon(1878) 1 SCR NS (NSW) 159 and Wade (1869) 11 Cox CC 549.
d) the belief must be one of a legal entitlement to the property and not simply a moral entitlement: Bernhard and Harris v Harrison (1963) Crim LR 497;
e) the existence of such a claim when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it: Love (1989) 17 NSWLR 608 at 615-616; Salvo (1980) VR 401; Langham at 58; Kastratovic at 66; Barker (1983) 153 CLR 338; Williams (1986) 21 A Crim R 460; and see also Boden (1844) 1 C & K 395.
i) It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury: Lopatta at 108, Astor v Hayes (1998) 38 A Crim R 219, Lenard and Williams at 475.
When being interviewed by the police on the day after the event, the appellant referred to earlier interaction between himself and the complainant regarding telephones. Q38 and its answer are these:
"Q38...Can I just ask what in the..audio recording provided by your ex-wife you were saying, 'Give me my phone'.
A. Because we were arguing about the phones like the whole, for fuckin' two days we've been arguing about changing our contracts and this and that and blah blah blah blah blah. I've got text messages of it. Just to start the divorce proceedings and stuff like that. So when she jumped out of the bed, I was still talking about that and I noticed she had her hand like that in her pocket [sic, scil. muff] and I assumed it was with her phone and then it was just like, I just said, 'Give me your phone, give me your phone' we've been arguing you know."
In other words, antecedent to the events now in question there had been discussions between the appellant and the complainant about the complainant obtaining her own mobile phone service so that the couple could prove that they were living independently of each other.
The appellant in the ERISP did not know whether the phone was registered to him or to his then wife, but did maintain that he was paying for it. When he gave oral evidence, he said that after he was interviewed by the police he consulted a bill that he had received for the complainant's mobile telephone service and that it was registered in his name [transcript, 21 June 2019 at p 17 line 24]. Clearly the appellant believed that he had a right to the telephone because he was the source of the funds which paid for it. It may be that he paid for the phone outright, but it may be that it was bought on a plan which he was paying.
His claim of right is required by law to be honestly held. Here the Crown submits that at the time the appellant reached for the phone he did not generally rely upon his claim of right but rather was merely concerned what evidence the complainant may have recorded on her mobile phone which might be of utility to the complainant in proposed matrimonial proceedings. However, the claim was raised almost immediately, within seconds, and what was happening was not the sort of thing that would give the appellant time to scroll through his memory banks to try to find some reason to justify his reaching for the telephone. I accept, therefore, that his claim was genuinely, that is, honestly held at the time he reached for the telephone. The belief does not have to be reasonable, but a mere "colourable pretence" is insufficient. However, when he was paying for the telephone, his claim of right must be seen as being reasonable. The law also requires that his belief be one of legal entitlement and not simply a moral entitlement. Here there was a belief based upon a legal principle, that is, he who pays for property owns it, a basic principle in our mercantile law. The existence of such a claim, when genuinely held, can constitute an answer to a crime in which the holder of the right uses means to take the property and that may involve an assault. Here that is exactly what happened.
It appears to me that, in the circumstances, the Crown has failed to negative a claim of right made in good faith. Once the claim of right was made, the onus was on the Crown to disprove it, that is, to disprove it beyond reasonable doubt because if it was not disproved beyond reasonable doubt, the Crown had not established that the appellant had no reasonable cause to reach for the telephone. I accept that he did have some reasonable cause to reach for the telephone and therefore the Crown has failed to negative the claim of right made in good faith.
On the evidence, the claim of right was clearly raised in the appellant's case and, indeed, was the subject of cross-examination by Sergeant Philipson who was appearing for the police. The cross-examination of Sergeant Philipson on this issue can be found on p 17 of the transcript of 21 June 2019. The matter was clearly raised on the evidence, therefore the Crown was required to disprove it, and the matter has not been addressed at all by the learned magistrate. In those circumstances, the appeal is successful. For those reasons, I set aside the finding of guilt and the penalty imposed by the Local Court and I set aside the apprehended violence order made on 19 July 2019.
[2]
Amendments
09 October 2020 - Addition of s 10(5) of the Crimes (Sentencing Procedure) Act 1999 to [5].
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Decision last updated: 09 October 2020