Shahzad v R

Section 18

1. The Appellant appeals against both conviction and penalty, thus invoking the jurisdiction of this Court pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 which, is a "rehearing" in the sense explained in cases such as R v Pakis (1981) 3 A Crim R 132, Charara v R [2006] NSWCCA 244, and Wood v DPP [2006] NSWCA 240.
2. What I take from those authorities is that the appeal does not concern the identification of error in the decision of the magistrate but rather, whether I am satisfied beyond reasonable doubt of the guilt of the Appellant.
3. However, the principles in cases such as Fox v Percy (2003) 214 CLR 118 have a significant part to play in this process. This is because I only have before me the transcript of the evidence of the various witnesses and yet the magistrate had the considerable advantage of seeing and hearing those witnesses as they gave their evidence. Accordingly, I should approach the matter by giving appropriate weight to that advantage the magistrate had in hearing the evidence of the witnesses, in particular as to the magistrate's assessment of the credit and/or reliability of witnesses.

The Appellant's account

1. The Appellant gave sworn evidence in his defence wherein he denied the various alleged assaults and provided his own account of the circumstances of what occurred. The common theme of his defence was that the allegations arose in circumstances of a catastrophic marital breakdown between him and his wife that he did not commit any of the assaults, albeit he accepted that he was angry and there were significant arguments. In relation to the assault involving the grabbing of his former wife's arm, he denied the allegation and said that any bleeding occasioned was as a result of an earlier medical procedure, in relation to what is described as the "Water Bill" episode he accepted that there was a significant argument between him and his wife but denied that there was any knife or threat involved, and in relation to the alleged choking incident, he explained his conduct by saying that he was performing a massage at the time which did involve the neck but that there was no actual choking or intent to choke.

The Magistrate's approach

1. The magistrate, albeit not persuaded in relation to all the matters which were the subject of charge, gave a relatively lengthy and considered judgment wherein she reminded herself impeccably of the various legal directions that would be given to a jury in this sort of matter, including what is known as a Liberato Direction (Liberato v R (1985) 159 CLR 507 at 520).
2. In the context of that Liberato direction, the magistrate dealt with the Appellant's account as follows (at lines 3 - 45 TS 15/12/22) (my emphasis): "But in relation to his evidence, there were matters that he said in his evidence that were never put to any of the complainants. The shoulder charge by Alannah to him during the incident where - the shoulder charge, firstly. The allegation of - there's a number of propositions that were not put. The shoulder charge by Alannah, but more importantly, that water bill incident. That fanciful evidence that he gave before the Court that after an argument, he then went to the bedroom to lie down and she flipped the bill - took the bill off the fridge, flipped it on the side of the table, and after some time came to lie beside him between - on the bed and the child in between. That proposition was never put to Naomi at any stage. It is clear that his evidence was scripted. It was clear that his evidence was - he was giving evidence to tailor the prosecution case. He was precise in detail for matters that occurred some time ago. And for that reason, given the version that was put before the Court, a number of propositions that were never put to the respective witnesses - the lying down in the bed; the flipping of the bill on the bedside table; the grabbing - "I was shocked", "I grabbed her by the shirt", this was not put to Alannah; the massage of the mustard oil with cough medicine, he initially said it was eucalyptus oil. There was never any proposition put to Shauna that she was massaged and it was only rubbed. There was the implants. In relation to those implants, he actually contradicted himself in relation to that evidence and, in fact, he supported the complainant's version because in relation to those - just one moment. First of all, there was some consistency in his evidence with the complainant's version. (1) Mum had pinned the bill on the fridge and this is what initiated the fight. That's consistent with the accused's evidence and consistent, not only with Alannah's evidence but also consistent with Naomi's evidence and consistent with the accused. He supports that too. Then we've got the implant where the accused gave evidence, and he says he was present at the time that the implant was inserted on Naomi and it was shortly after giving birth. Although, initially he said it had started bleeding the day before in cross-examination. He then said that it was bleeding all the time which was inconsistent with his initial evidence. Given the number of inconsistencies, given the number of propositions that were not put to the witnesses, given that my impression of his evidence as being fanciful, I can comfortably reject his evidence outright. Now, as we know, and Liberato tells us, that that in itself does not prove a case or the charges before the Court beyond a reasonable doubt. I must still be satisfied beyond a reasonable doubt with respect to each individual charge that is before the Court."
3. Mr Norrie, who appeared for the Appellant before me, criticises the magistrate's reasoning in the above passage, in three ways. He says: 1. Firstly, the account dismissed by the magistrate was not "fanciful". 2. Second, he says that the magistrate's reasoning based on a failure to "put" various proposition to the two various Crown witnesses was legally erroneous. 3. Third, that the inconsistencies identified by the magistrate were in fact on proper analysis not inconsistencies at all.
4. Whilst reminding me that it was not necessary for him to demonstrate such errors, the point of the submissions was to seek to persuade me that if the magistrate had made errors in her reasoning leading to her rejection of the Appellant's sworn evidence, that ought cause me to not give any particular weight to the magistrate's assessment on that evidence.
5. I will deal with each point in turn, although I think that there is overlap between the "fanciful" ground and the "inconsistency" ground.

Inconsistency

1. The magistrate identified two aspects of the Appellant's evidence which she felt were inconsistent. The first concerned whether his former wife's arm had been persistently bleeding since a recent medical procedure, or whether it was only the day before the alleged incident that it had been bleeding.
2. Mr Norrie has taken me to the relevant passages in the transcript. Whilst there is force in his submissions that perhaps there is some ambiguity in what the Appellant was saying, there is certainly a fair reading of the transcript that allows the conclusion that what he said when he first mentioned the bleeding was limited to bleeding the day before, and that under cross examination when the topic was returned to, his evidence changed and became that there had been bleeding for many days on a consistent basis.
3. I think the magistrate, having heard the evidence out of the mouth of the Appellant, was in a much better position than me to judge as to whether there was inconsistency, and the significance of such an inconsistency. In those circumstances I am not satisfied that the magistrate was wrong to conclude that the inconsistency was made out. Paying due deference to the advantages the magistrate had in assessing the evidence, I do not think it appropriate for me to come to a contrary view.
4. The second matter identified by the magistrate as inconsistent was an alleged inconsistency between, on the one hand, something that was put to one of the Crown witnesses by counsel then appearing for the Appellant, to the effect that the massage was carried out with using "eucalyptus oil" but that when the Appellant gave evidence in relation to the same conduct, he referred to "mustard oil".
5. I really don't think such an inconsistency could fairly be attributed to the Appellant in those circumstances. It's important to emphasise that it is not suggested that the Appellant actually gave inconsistent evidence on this topic, rather, the point is that what he said was inconsistent with the basis that his barrister cross- examined one of the witnesses. In my opinion, in circumstances where it was never put to the Appellant that he had somehow given different instructions to his counsel prior to cross examination, it not fair or appropriate of the magistrate to find inconsistency. I therefore accept that she made an error in taking that matter into account.
6. There is a third inconsistency identified by the Crown on this appeal which was not referred to by the magistrate.
7. This alleged inconsistency is as to the manner of the massaging of the neck. A comparison between page 31 and page 84 of the transcript does satisfy me that the specific description the Appellant gave as to the manner he was massaging, did change significantly between his evidence in chief and cross-examination. Whilst the magistrate did not take this matter into account by me, to my mind, it being on a topic absolutely central to one of the charges, it is a matter that can properly be taken into account by me when determining whether to accept the Appellant's account of the relevant events or, when considering whether his account "might be true".

The failure to "put"

1. Mr Norrie, in reliance on what was said by the High Court of Australia in Hoffer v R [2021] HCA 36, and in particular at [34], submitted that the magistrate was wrong to take into account when assessing the reliability of the Appellant's evidence the fact that various statements contained in his evidence had not been put to the relevant Crown witnesses. I am not so sure that in a judge alone (or magistrate alone) hearing what the High Court said has very much part to play. It seems to me the High Court was concerned as to the prejudicial nature of such submissions in the context of a jury trial.
2. Nonetheless, it does seem to me to be entirely unfair to hold against an accused the fact that his or her barrister did not "put" something to witnesses in circumstances where that proposition is not itself "put" to the accused during the hearing, so that he or she has an opportunity to respond to it, for example, by tendering material to rebut any presumption of recent invention.
3. Whilst in written submissions the Crown sought to support the magistrate's reliance on this matter, in oral argument it was conceded that the magistrate was wrong to take that matter into account when assessing the Appellant's evidence.

Fanciful

1. As I said at the outset, I think the criticism of her Honour's description of the Appellants evidence as "fanciful" is in part another way of indicating that she did not accept the evidence of the Appellant, insofar as it conflicted with the Crown case, for the reasons identified by her (viz inconsistencies and the Browne v Dunn point). However, a fair reading of the judgment shows that the magistrate also made it entirely clear that her overall impression of the Appellant's evidence was that it was fanciful. To put it bluntly, it is clear to me that the magistrate's overall impression of the Appellant, having heard his evidence, was extremely negative. She did not believe him. I have read the transcript of his evidence and think such a conclusion was well open to the magistrate.

Resolution

1. The magistrate, elsewhere in her reasons identified why it was that she was comfortably satisfied as to the reliability and credibility of the Crown witnesses. After determining that she rejected the Appellant's account, she then appropriately returned to the Crown case and considered whether there was sufficient evidence to satisfy her beyond reasonable doubt of the matters alleged.
2. As I have said in relation to some of the matters, there was an acquittal but in others she was satisfied. This demonstrates a careful discernment by the magistrate of all of the evidence against the specific charges.
3. Mr Norrie has criticised her Honour's assessment of the Crown witnesses in his written submissions and again orally.
4. Having considered those criticisms, I am not satisfied that I ought not come to the same conclusion as the magistrate, that is, on the evidence adduced by the Crown, the convictions are justified.
5. To resolve the matter, I return to the magistrate's assessment of the Appellant's evidence in the context of the test described in authorities such as Liberato.
6. Whilst I have identified a number of what might be described as errors in the magistrate's reasoning process ultimately, having considered the totality of all the evidence in the light of the submissions made by the parties before me, I have come to the same conclusion as the magistrate. Indeed, having read the transcript, I would reject his evidence even without knowing the magistrate's impression of the Appellant. I am satisfied beyond reasonable doubt that the offences for which the Appellant was convicted were committed by him. When I consider the totality of the evidence and give due weight to the magistrate's impression of witnesses, I think the Appellant's account has to be rejected. In that circumstance, I think the evidence adduced by the Crown proves the convictions beyond reasonable doubt.

Sentence

1. Turning then to the sentences imposed by the Appellant.
2. Mr Norrie's submissions can be summarised as follows. First, the Appellant, who is in his mid-40s, has no prior convictions and therefore I shall conclude that the conduct was out of character.
3. Second, the conduct occurred over a relatively short period of time in the context of what seems to be a catastrophic marriage breakdown which seems to have driven the Appellant into an uncontrollable rage, and it is therefore unlikely that he will reoffend.
4. Third, the Appellant currently has no contact with his former wife or children. This reduces the prospect of reoffending.
5. Fourth, the Appellant currently works as a taxi driver and has a relevant licence. It is conceded by the Crown that the inevitable consequence of the convictions is that he will lose that licence and thus his primary livelihood.
6. Against that, must be said the following.
7. First, objectively, the offences are extremely serious. There were at least two aggravating factors to most of the offences, that is, they occurred in the presence of children and they occurred in the home of the wife and children.
8. The offences were violent and left some injuries. They were against his own wife and young children, who must have been terrified. The community and the courts in recent times have come to appreciate that domestic violence offences are extremely serious and need to be treated as such by the courts. The conduct of the Appellant is entirely inexcusable. It is certainly no excuse that he was angry. Thus, general deterrence is extremely important, as is specific deterrence and retribution for the victims. The Appellant, as he is entitled to do, maintains his innocence, I have nothing upon which I could conclude that he has any genuine regret, remorse or insight into his offending, and its seriousness, which weighs against me being confident as to rehabilitation or reoffending. It is all very well to say that he has no contact with his family. The question remains he will he behave towards his next partner/children when he gets angry. As things stand, I am concerned that he may be tempted to reoffend.
9. Taking all those matters into account, I am not satisfied that any lesser penalties than those imposed by the magistrate are appropriate.

Conclusion

1. For those reasons, I have decided to dismiss the appeal against both conviction and sentence.

Orders

1. The orders are: 1. The appeal dated 15 December 2022 is dismissed. 2. If necessary I confirm the decision of Magistrate Boulos made 15 December 2022.

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: 13 October 2023